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The Philosophy of Positive Law: Foundations of Jurisprudence, by James Bernard Murphy
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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.
- Sales Rank: #6658768 in Books
- Published on: 2005-08-02
- Original language: English
- Number of items: 1
- Dimensions: 9.02" h x .58" w x 5.98" l, .84 pounds
- Binding: Paperback
- 256 pages
Review
"Original and persuasive. . . . Murphy makes the important historical point that we must look much deeper in the history of western legal theory to understand how positive law acquired its deep incoherence."—Charles J. Reid, University of St. Thomas, Minnesota
(Charles J. Reid)
"An important and successful effort to trace the concept of positive law in both the natural law and legal positivist traditions, this book is an extraordinarily impressive integration of classical philosophy, political theory, legal history, and jurisprudence."—Frederick Schauer, Harvard University
(Frederick Schauer)
"Murphy's erudite and beautifully written study not only meticulously investigates the subtleties of a fundamental concept—positive law—but shows that without understanding them one will misinterpret some key figures
in intellectual history."—James Gordley, School of Law, University of California at Berkeley
(James Gordley)
About the Author
James Bernard Murphy is professor of government at Dartmouth College. He is the author of several books, including The Moral Economy of Labor: Aristotelian Themes in Economic Theory, published by Yale University Press.
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