Kendall Hunt Publishing (2010)
|Abstract||It is argued (a) that laws are assurances of protections of rights and (b) that governments are protectors of rights. Lest those assurances be empty and thus not really be assurances at all, laws must be enforced and governments must therefore have the power to coerce. For this reason, the government of a given region tends to have, as Max Weber put it, a "monopoly on power" in that region. And because governments are power-monopolizers, it is tempting to think that the concepts of government and law are to be understood in terms of the concept of power. In actuality, the first two concepts are to be understood primarily in terms of the concept of morality--of rights-protection, to be specific--and only secondarily in terms of the concept of power. Contentions (a) and (b) appear to be inconsistent with obvious facts (e.g. the fact that Pol Pot's regime violated the rights of those over whom it had power). But (a) and (b) are compatible with those facts. This is a consequence of two principles. First, moral requirements have a "dimension of weight," as Dworkin put it, meaning that one moral imperative can be outweighed, without being obliterated, by another moral imperative. Second, sentential operators can have different degrees of scope. "It is hereby assured that" is such an operator. Linguistic surface structure may obfuscate the degree of scope that it has in a given sentence. That fact compatibilizes our analysis with the fact that there are evil laws and evil governments.|
|Keywords||law legal positivism legal realism|
|Through your library||Configure|
Similar books and articles
Neil MacCormick (2007). Institutions of Law: An Essay in Legal Theory. Oxford University Press.
Robert Alexy (2002). The Argument From Injustice: A Reply to Legal Positivism. Oxford University Press.
Joseph Raz (2004). Incorporation by Law. Legal Theory 10:1-17.
Brian Leiter (2007). Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy. Oxford University Press.
John Arthur & William H. Shaw (eds.) (2010). Readings in the Philosophy of Law. Pearson Prentice Hall.
Roger Cotterrell (2000). Common Law Approaches to the Relationship Between Law and Morality. Ethical Theory and Moral Practice 3 (1):9-26.
G. Pino (1999). The Place of Legal Positivism in Contemporary Constitutional States. Law and Philosophy 18 (5):513-536.
Francois Chevrette & Hugo Cyr, Legal Positivism? What Are You Talking About? ('De Quel Positivisme Parlez-Vous?').
Pavlos Eleftheriadis (2008). Legal Rights. Oxford University Press.
Robert Alexy (2008). On the Concept and the Nature of Law. Ratio Juris 21 (3):281-299.
Carlos Santiago Nino (ed.) (1992). Rights. New York University Press.
Joseph Raz (1979). The Authority of Law: Essays on Law and Morality. Oxford University Press.
Theodore M. Benditt (1978). Law as Rule and Principle: Problems of Legal Philosophy. Stanford University Press.
Matthew H. Kramer (1999). In Defense of Legal Positivism: Law Without Trimmings. Oxford University Press.
Anthony James Sebok (1998). Legal Positivism in American Jurisprudence. Cambridge University Press.
Added to index2012-04-15
Total downloads8 ( #123,218 of 549,196 )
Recent downloads (6 months)1 ( #63,397 of 549,196 )
How can I increase my downloads?