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Law as a Moral Idea$
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Nigel Simmonds

Print publication date: 2008

Print ISBN-13: 9780199552191

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780199552191.001.0001

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Dualism and Archetype

Dualism and Archetype

(p.37) 2 Dualism and Archetype
Law as a Moral Idea

N.E. Simmonds

Oxford University Press

From a certain perspective, law appears to be a morally neutral device that can be used for diverse purposes, deriving any moral properties that it might possess from its variable and contingent content. There are times, however, when it can be thought of as the embodiment of an elevated aspiration, thus embodying a seeming fundamental contradiction or antinomy, for that which is intrinsically moral cannot simultaneously also be morally neutral. HLA Hart sought to resolve this paradox through positivism sans reductionism, by treating propositions of law as deriving their primary sense from a prescriptive attitude, but one that need not be understood as an attitude of moral approval. This position was developed as a critique of that of fellow positivist John Austin, who was, in contrast, strongly reductionist in treating propositions of law as merely just predictions of the likelihood of suffering sanctions. Joseph Raz offered his own influential theory of duality by identifying the virtue intrinsic to the rule of law, and separating this from virtues that the rule of law may contingently possess in particular circumstances. Ron Fuller later further developed these ideas with his own idea of the Eight Precepts or Desiderata of the ‘Inner Morality’ as opposed to the ‘Outer Morality’, of the law.

Keywords:   antinomy, reductionism, positivism, HLA Hart, John Austin, Joseph Raz, duality, rule of law, Ron Fuller, Desiderata

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