Chapter 25: The nature of law
Jonathan Crowe’s chapter examines natural law perspectives in contemporary philosophy of law. Natural law views in jurisprudence are united by the natural law thesis: law is necessarily a rational standard for conduct. This thesis entails that anything that is not a rational standard is either not law or a defective example of law. Crowe begins by surveying the various arguments natural law theorists have presented for their favoured versions of the thesis. He then defends his own preferred route to the thesis, which involves analysing the nature of law as a human artifact. The function of law, Crowe argues, is to serve as a deontic marker for human conduct by creating a sense of social obligation. A law that is poorly suited to this function - such as a badly drafted, unjust or unreasonable standard - will therefore be legally defective, while a putative law that is incapable of playing its function - such as an incomprehensible or deeply repugnant standard - will be no law at all. This view - which Crowe calls the artifact theory of law - vindicates the natural law claim that law is necessarily a rational standard. It also refutes the legal positivist slogan that ‘[t]he existence of law is one thing; its merit or demerit is another’.
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.