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Law, Morality and the Egalitarian Philosophy of Government

Lookup NU author(s): Professor Richard Mullender

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Abstract

Herbert Hart and the positivists influenced by him have, according to Nigel Simmonds, deflected attention from the question that has always been at the heart of philosophical reflection on law. This question concerns the relationship between law and morality and how we should understand it. Simmonds argues that law and morality are necessarily related and seeks to explain their relationship by reference to an archetype that actually existing legal institutions approximate more or less adequately. He identifies this archetype as providing the basis for an analysis of law that is free from metaphysics and universally applicable. This review article raises doubts concerning Simmonds’ claims to offer a metaphysics-free and universal analysis. It also offers an argument in support of the conclusion that he has failed to point up the complexity of the positivist tradition he criticizes. While Simmonds is vulnerable to these criticisms, he throws light on an egalitarian philosophy of government that informs legal institutions in the West and is relevant to positivist analyses of law.


Publication metadata

Author(s): Mullender R

Publication type: Article

Publication status: Published

Journal: Oxford Journal of Legal Studies

Year: 2009

Volume: 29

Issue: 2

Pages: 389-411

Print publication date: 01/01/2009

ISSN (print): 0143-6503

ISSN (electronic): 1464-3820

Publisher: Oxford University Press

URL: http://dx.doi.org/10.1093/ojls/gqp009

DOI: 10.1093/ojls/gqp009


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