100% satisfaction guarantee Immediately available after payment Both online and in PDF No strings attached
logo-home
Previously searched by you
Previously searched by you
logo
Summary Jurisprudence - Moral Purpose/Point of Law R185,95   Add to cart
Quickly navigate to
Preview
  2.  
  3. Oxford University (OX)
  4.  
  5. Jurisprudence

Summary

Summary Jurisprudence - Moral Purpose/Point of Law
 1 view  0 purchase
  • Course
  • Jurisprudence
  • Institution
  • Oxford University (OX)

Comprehensive summary/essay plan on the question of whether law can be properly understood without reference to a moral purpose or point. This document covers Finnis' theory on the purpose of the law (including his 'central case' idea and the 'still/really' distinction) and Hart's wider conception.

Preview 2 out of 5  pages

Document information

  • October 7, 2024
  • 5
  • 2022/2023
  • Summary

Subjects

  • jurisprudence
  • theory of law
  • moral purpose of law
  • point of law
  • moral point of law

Written for

  • Oxford University (OX)
  • Unknown
  • Jurisprudence
All documents for this subject (5)

Seller

avatar-seller
bethjscott5713

Content preview

Can law be properly understood without reference to its having a
moral purpose or point?
1. Introduction:
For proponents of natural law, law cannot be understood without reference its moral
purpose.
Finnis proposes that there are seven fundamental ‘goods’ for humankind which serve
as an explanation of why we do things.
Any worthwhile activity is only worth doing because it participates in one or
more basic goods.
This essay will analyse Finnis’ proposal that law’s engagement with moral norms is
inescapable, specifically with regards to its sole focus on central cases of law and its
declaration that morally unjust law is not law at all.
The debate regarding the extent to which law can be understood without
reference to its moral purpose is reflective of a greater metatheoretical debate
concerning the end to which “law” is being defined.
This essay will argue that we want a theory of law which can
describe the social reality of law as it has been realised in society
rather than one that prioritises understanding and explaining law in
the abstract.
It is on this basis that this essay will conclude that Hart’s theory is
most compelling.
2. Central Case Idea:
In his theory of the nature of the law, Finnis speaks of the central case of law.
In other words, the law-follower who complies because he regards legal
norms as morally binding is a more central case of a law-follower than is the
one who does so for other reasons.
In his view, in generating a theory of law, it is crucial that a distinction is
drawn between moral and immoral legal systems/laws.
He states that it would be deeply misleading to present the Nazi legal
system or the South African apartheid law as one’s basic illustration
of law; these are instead, what he calls, “deviant” cases of law.
In setting out his “central case” of law, Finnis takes the “internal point of view” as
starting point but takes it further than Hart; the central case is based on the
“practically reasonable person”.
He states that a theory of law needs to take into account “law-users” and their
reason for action as the premise.
While Hart thinks lots of different people take the reason for action as
different things, Finnis thinks that this does not go far enough and rather the
really internal point of view is the practically reasonable person who
believes/follows the law for moral reasons.
For Finnis, once you have accepted the internal point of view, you
should prioritise the “really inner”.
BUT – given how narrow this “really inner” conception of the law is, question how
much explanatory power it has.
Doesn’t reflect the social reality of the view that people hold.
As Gardner cogently puts forward, it is part of the very idea of a central case
that there might be cases that do not exhibit all the features that make a
central case a central case.
Studying the central case can therefore only be part of the task of
studying the nature of law.
Just as Finnis criticises some “legal positivists” for focusing all their attention
on the limit cases of law at the expense of attention to the central case and
thereby offering incomplete theories of law, there can be nothing resembling

, a theory of law that includes only treatment of law’s central case and shows
no parallel interest in what Raz refers to as “the limits of law”.
Does not reflect the social reality of law.
Consequently if, as Finnis proposes, law by its nature has a moral objective, one
cannot possibly understand what immoral law is without first understanding what
morally successful law is.
This proposition will now be explored further.
3. What is the purpose of the law?
It is worth at this point probing further into what Finnis means by his “central case”
of law.
For Finnis, the central case is where the law succeeds in doing what it aims to do.
The issue with such proposition is that it assumes that the aim of the law is to
be morally good.
This challenge has two strands, each will be considered in turn:
One – difficulty of determining what the purpose or aim of
the law is.
Second – presupposes that there is an objective concept of
what is to be considered morally good.
First of all, it is questionable whether the law itself has an aim.
Gardner – law is a function of human agency; what community has decided
the aim is, not the law’s aim.
e.g., McCormick – Administration of Justice
Aim of its officials – contingent fact on specific legal
systems.
The purpose or aim of something is comprised of those values that thing
ought to achieve as part of its nature, not incidental to it.
BUT – how do we know what is in the “nature of the law”?
Surely it is still the decision/perspective of someone.
One common conception is that the “nature of the law” is comprised
of those aims that only law can achieve.
However, this seems wholly arbitrary – would exclude fundamental
purposes just because they are covered by something else.
Fails to reflect social reality of law and the idea that the law
is inexplicably intertwined with society.
Second of all, even if we could decipher a purpose of the law, Finnis’ theory
presupposes that there is an objective set of morals.
If the law cannot be understood without reference to its moral purpose or
point, there would have to be an entirely objective and universal consensus
on what is deemed to be a good moral purpose.
There is no such consensus.
This can be seen through Finnis’ identification of the 7 basic human
goods: human goods: life, knowledge, sociability of friendship, play,
aesthetic experience, practical reasonableness, and religion.
He presents these as “self-evident”.
BUT – this is, in reality, simply concealing his own personal
opinion of what these values should encompass.
This is especially evident with the inclusion of “religion” –
this is not universal, especially in a modern secular society;
not everyone is religious and, therefore, for many people,
religion would not be considered a basic human good.
Dickson – points out an incompatibility between two propositions put forward by
Finnis.
As has been shown above, Finnis consistently emphasises the fact that,
necessarily, law has a distinctive moral point or purpose that it ought to
realise.

The benefits of buying summaries with Stuvia:

Guaranteed quality through customer reviews

Guaranteed quality through customer reviews

Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.

Quick and easy check-out

Quick and easy check-out

You can quickly pay through EFT, credit card or Stuvia-credit for the summaries. There is no membership needed.

Focus on what matters

Focus on what matters

Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!

Frequently asked questions

What do I get when I buy this document?

You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.

Satisfaction guarantee: how does it work?

Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.

Who am I buying this summary from?

Stuvia is a marketplace, so you are not buying this document from us, but from seller bethjscott5713. Stuvia facilitates payment to the seller.

Will I be stuck with a subscription?

No, you only buy this summary for R185,95. You're not tied to anything after your purchase.

Can Stuvia be trusted?

4.6 stars on Google & Trustpilot (+1000 reviews)

78834 documents were sold in the last 30 days

Founded in 2010, the go-to place to buy summaries for 14 years now

Start selling
R185,95
  • (0)
  Buy now