The Nature Of Positive Law

Reprint of the original, first published in 1883.

Excerpt from The Nature of Positive Law It has now in several ways become evident that the idea of Law upon which Austin founded his system of Jurisprudence cannot be accepted as final, but must be treated as only a first approximation, valuable indeed, but defective, and therefore requiring to be supplemented by further enquiry. I was myself led to this opinion by discovering that the Austinian analysis threw so little light upon the real nature of legal Rights as to be of comparatively small value in investigating their substance as opposed to their mere enforcement. This view was pressed upon me again and again as I examined the various Rights of property, and I believe the current system breaks down entirely when we attempt to explain by it the Roman theory of Possession. Being thus led to distrust the results which I had long accepted as final, I found that there were two ways of attempting to correct them - the historical and the analytical. About the Publisher Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com This book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works.

This book presents a comprehensive defence of legal positivism on the basis of a novel account of social conventions. Marmor argues that the law is founded on constitutive conventions, and that consequently moral values cannot determine what the law is. On the basis of a theory of socialconventions and an analysis of law's authoritative nature, the book sets out the scope of law in relation to moral and other critical values. The book also maintains, however, that moral values are objective. It comprises a detailed analysis of the concept of objectivity, arguing that many aspectsof the law, and of moral values, are metaphysically objective.

Reprint of the original, first published in 1883.

In this first book-length study of positive law, James Bernard Murphy rewrites central chapters in the history of jurisprudence by uncovering a fundamental continuity among four great legal philosophers: Plato, Thomas Aquinas, Thomas Hobbes, and John Austin. In their theories of positive law, Murphy argues, these thinkers represent successive chapters in a single fascinating story. That story revolves around a fundamental ambiguity: is law positive because it is deliberately imposed (as opposed to customary law) or because it lacks moral necessity (as opposed to natural law)? These two senses of positive law are not coextensive yet the discourse of positive law oscillates unstably between them. What, then, is the relation between being deliberately imposed and lacking moral necessity? Murphy demonstrates how the discourse of positive law incorporates both normative and descriptive dimensions of law, and he discusses the relation of positive law not only to jurisprudence but also to the philosophy of language, ethics, theories of social order, and biblical law.