Law and the Normativity of Obligation

Jurisprudence 5 (1):1-28 (2014)
  Copy   BIBTEX

Abstract

The paper examines the natural law tradition in ethics and legal theory. This tradition is shown to address two questions. The first question is to do with the nature of law, and the kind of human capacity that is subject to legal direction. Is law directive of the voluntary—of what is subject to the will, or what can be done or refrained from on the basis of a decision so to do? Or is law directive of some other kind of capacity? The second question is about the nature of ethical normativity, and the relation within normativity of its directive and appraisive aspects. Is direction primary, and appraisal to be explained in terms of a theory of direction; or must a theory of ethical direction be based on a theory of ethical appraisal? Both issues are introduced by reference to Hume's ethical theory, which raises them in a particularly sharp form. The natural law tradition, in the form it reached by the early modern period, is shown to combine giving a primacy to the appraisive in normative theory, with, in legal theory, a detachment of law from any exclusive tie to the direction of the voluntary. At the heart of the theory of natural law is the idea of law as a distinctive form of normativity directive of a capacity not for voluntariness, but for self-determination. Combined with a view of the state not just as a coordinative authority but as a coercive teacher, this led to a distinctive and highly controversial view of the scope of positive law. The paper ends with Hobbes's sharp opposition to this view of positive law—an opposition that focused, in particular, on the coercive legal direction of belief

Links

PhilArchive



    Upload a copy of this work     Papers currently archived: 76,479

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Similar books and articles

Normativity and reason.Thomas Pink - 2007 - Journal of Moral Philosophy 4 (3):406-431.
Normativity and the nature of the obligation to obey the law.Pedro Rivas - 2012 - Archiv für Rechts- und Sozialphilosophie 98 (3):332-345.
Epistemic Consequentialism.Jeffrey Dunn - 2015 - Internet Encyclopedia of Philosophy.
Critical Notice: From Raz’s Nexus to Legal Normativity.Christopher Essert - 2012 - Canadian Journal of Law and Jurisprudence 25 (2):465-482.
Law and Obligation: Outlines of a Kantian Argument.Stefano Bertea - 2011 - In Stefano Bertea & George Pavlakos (eds.), New Essays on the Normativity of Law. Hart. pp. 199--218.
Normativity: A Unit of.Andrew Reisner - forthcoming - In Hugh LaFollette (ed.), International Encyclopedia of Ethics. Blackwells.
Hypothetical and Categorical Epistemic Normativity.Chase B. Wrenn - 2004 - Southern Journal of Philosophy 42 (2):273-290.

Analytics

Added to PP
2014-07-08

Downloads
91 (#137,271)

6 months
1 (#455,463)

Historical graph of downloads
How can I increase my downloads?

Author's Profile

Thomas Pink
Kings College

Citations of this work

Add more citations

References found in this work

Involuntary sins.Robert Merrihew Adams - 1985 - Philosophical Review 94 (1):3-31.

Add more references