Category Archives: Volume 6, no. 2 (2011)

Garrett Barden and Tim Murphy. Law and Justice in Community (Oxford: Oxford University Press, 2010)

Jurisprudence is a lively field of inquiry and law and justice are among its most important subjects. They are not exclusive to jurisprudence but are also inquired into in ethics and political philosophy. The book under review is an extensive inquiry into law and justice from the point of view of jurisprudence but it is jurisprudence that has deep roots in the history of the discipline. The authors use ideas from Aristotle, Gaius, Justinian, Thomas Aquinas, Adam Smith, Hobbes and from various law books from the Code of Hammurabi onwards. One way of understanding the book is to see the authors as reworking an old tradition that has not been prominent in modern jurisprudence. This approach leads to surprising conclusions from a modern point of view that are both radical and conventional.

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A Few Words on Authority

In his book, The Concept of Law, HLA Hart described the element of authority involved in law as an obstacle in the path of any easy explanation of what law is. In this paper I argue that this is true for legal positivists and that they have not been able to remove that obstacle despite vigorous attempts. 

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Equality: A Principle of Human Interaction

The paper focuses on equality as a primary principle of human interaction. Human beings have basic needs, physical and mental, the fulfilment of which is necessary for a flourishing life. These needs transfer into so-called fundamental rights. Humans are entitled to a life as conscious, autonomous actors in respect to those needs. In this respect all humans are equal. It is proposed here that equality in this sense promotes a situation from which fundamental rights are derived. Thus equality is primary to and the reason why recognition of fundamental rights cannot be left to the chance of social development.

 

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Law and Justice in Community: The Significance of the Living Law

Law and Justice in Community provides an account of law that privileges the role of custom, which the authors characterise as the living law. In this paper, I argue that the authors’ account of law observes the same features as those observed by Hart in his Concept of Law. However, Hart viewed all law through the lens of state law, with the result that he did not identify the purpose of law. Conversely, Barden and Murphy view all law through the lens of the living law, with the result that they do not identify some of the most acute issues raised by pervasive state law. Ultimately, each account is helpful as a corrective to the other.

 

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Responses to the contributors

I should like to begin by thanking very sincerely both those who organized and those who contributed to the seminar, held in the National Museum of Iceland in March 2011, on Law, Justice and Community [LJC] that Tim Murphy and I wrote together. I greatly appreciate the generosity of the organisers, speakers and others who, sometimes travelling a considerable distance, gave their time to read the book or to attend the seminar.

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