The Philosophy of Positive Law


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Foundations of Jurisprudence

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.

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.

"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

"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 


"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

“An important and very satisfying contribution to legal theory and history.”—Russell Hittinger, University of Tulsa

"Meticulously researched. . . . A searching examination of the concept of positive law—apparently the first such book length study—in the works of four seminal legal philosophers, Plato, St. Thomas Aquinas, Thomas Hobbes, and John Austin, allowing Murphy to draw magisterial conclusions about the jurisprudence of positive law."—Howard Bromberg, Review of Metaphysics
ISBN: 9780300191523
Publication Date: August 2, 2005
256 pages, 6 x 9
The Moral Economy of Labor

Aristotelian Themes in Economic Theory

James Bernard Murphy

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