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Law as a Leap of FaithEssays on Law in General$
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John Gardner

Print publication date: 2012

Print ISBN-13: 9780199695553

Published to Oxford Scholarship Online: January 2013

DOI: 10.1093/acprof:oso/9780199695553.001.0001

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Nearly Natural Law

Nearly Natural Law

Chapter:
(p.149) 6 Nearly Natural Law
Source:
Law as a Leap of Faith
Author(s):

John Gardner

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199695553.003.0006

This chapter approaches the relationship between law and morality by reflecting on the similarities and differences between them, and exposing the false trails that these leave for the unwary. In particular there is thought to be a problem of the ‘normativity’ of morality and a problem of the ‘normativity’ of law. The chapter argues that these are different, indeed contrasting, problems. There is never a live question of why we should be moral. The problem of morality’s ‘normativity’ is essentially the problem of how anything can be inescapable for rational beings. There is always, by contrast, a live question of why we should obey the law. The problem of law’s normativity is the problem of how this can be so, consistently with law being made up of norms. This chapter sketches a solution to the two problems and explores the relationship between law and morality that this solution suggests.

Keywords:   normativity, escapability, rationality, morality, defeasibility, presumption, obligation

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