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The Mystery Of Law: A Critical Analysis Of H.L.A Hart’S The Concept Of Law, Stephen Mark Gray Ii Apr 2020

The Mystery Of Law: A Critical Analysis Of H.L.A Hart’S The Concept Of Law, Stephen Mark Gray Ii

Honors Theses

This thesis explores the role of morality in law through a critical examination of the work of one of the most widely cited and renowned judicial scholars, H.L.A. Hart. His modified theory of positivism, which denotes that law and morality are separable and that legal rules may have any content, has had an enduring impact on the landscape of judicial thought in the last century. As Hart’s work has had an indelible hand in shaping analytical jurisprudence and as it exemplifies the antithesis of my argument, it will serve as a theoretical foil. From it, I hope to articulate my …

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The Conceptions Of Self-Evidence In The Finnis Reconstruction Of Natural Law, Kevin P. Lee Apr 2020

The Conceptions Of Self-Evidence In The Finnis Reconstruction Of Natural Law, Kevin P. Lee

St. Mary's Law Journal

Finnis claims that his theory proceeds from seven basic principles of practical reason that are self-evidently true. While much has been written about the claim of self-evidence, this article considers it in relation to the rigorous claims of logic and mathematics. It argues that when considered in this light, Finnis equivocates in his use of the concept of self-evidence between the realist Thomistic conception and a purely formal, modern symbolic conception. Given his respect for the modern positivist separation of fact and value, the realism of the Thomistic conception cannot be the foundation for the natural law as Finnis would …

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The End Of Jurisprudence, Scott Hershovitz Feb 2015

The End Of Jurisprudence, Scott Hershovitz

Articles

For more than forty years, jurisprudence has been dominated by the HartDworkin debate. The debate starts from the premise that our legal practices generate rights and obligations that are distinctively legal, and the question at issue is how the content of these rights and obligations is determined. Positivists say that their content is determined ultimately or exclusively by social facts. Anti-positivists say that moral facts must play a part in determining their content. In this Essay, I argue that the debate rests on a mistake. Our legal practices do not generate rights and obligations that are distinctively legal. At best, …

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On Hart's Ways: Law As Reason And As Fact, John M. Finnis Jan 2007

On Hart's Ways: Law As Reason And As Fact, John M. Finnis

Journal Articles

This address at the Hart Centenary Conference in Cambridge in July 2007 reflects on foundational elements in Hart's method in legal philosophy. It argues that his understanding of what it is to adopt an internal point of view was flawed by (a) inattention to the difference between descriptive history (or biography or detection) and descriptive general theory of human affairs, (b) inattention to practical reason as argument from premises, some factual but others normative (evaluative) in their content, and (c) relative inattention to the deliberations of law-makers as distinct from subjects of the law. These flaws contributed to a concept …

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The Function Of Legal Philosophy, Roscoe Pound Dec 1960

The Function Of Legal Philosophy, Roscoe Pound

Vanderbilt Law Review

For twenty-four hundred years--from the Greek thinkers of the fifth century B.C. who asked whether right was right by nature or only by enactment and convention, to the social philosophers of today, who seek the ends, the ethical basis and the enduring principles of social control--the philosophy of law has taken a leading role in all study of human institutions. The perennial struggle of American administrative law with nineteenth-century constitutional formulations of Aristotle's threefold classification of governmental power, the stone wall of natural rights against which attempts to put an end to private war in industrial disputes for a long …

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The Legal Philosophy Of Morris R. Cohen, Huntington Cairns Dec 1960

The Legal Philosophy Of Morris R. Cohen, Huntington Cairns

Vanderbilt Law Review

Cohen died in 1947 with five of the numerous books he had planned published. Since that time others have appeared. If he did not live to finish his life's work, he accomplished more than is given to most scholars who teach and participate in the numerous public activities that marked his career. Cohen was not a hopeful man and he would not be attracted by the thought, he once said in conversation, of living life over again--particularly, he added after a pause, if he had to teach mathematics to college students. He was disturbed above everything else by the decline …

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Friedrich: The Philosophy Of Law In Historical Perspective, Edgar Bodenheimer Feb 1959