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How Law Claims, What Law Claims

John Gardner

University of Oxford - Faculty of Law

November 10, 2008

Oxford Legal Studies Research Paper No. 44/2008

In this paper, written for a volume on the work of Robert Alexy, I discuss the idea that law makes certain distinctive claims, an idea familiar from the work of both Alexy and Joseph Raz. I begin by refuting some criticisms by Ronald Dworkin of the very idea of law as a claim-maker. I then discuss whether, as Alexy and Raz agree, law's claim is a moral one. Having arrived at an affirmative verdict, I discuss the content of law's moral claim. Is it, as Alexy says, a claim to moral correctness? Or is it, as Raz says, a claim to moral authority? (An appendix examines Oliver Wendell Holmes' judicial work to show that, pace Dworkin, Holmes does indeed make moral claims for law.)

Number of Pages in PDF File: 28

Keywords: law, morality, legal positivism, Alexy, Raz, Dworkin, Holmes

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Date posted: November 12, 2008 ; Last revised: March 25, 2009

Suggested Citation

Gardner, John, How Law Claims, What Law Claims (November 10, 2008). Oxford Legal Studies Research Paper No. 44/2008. Available at SSRN: http://ssrn.com/abstract=1299017 or http://dx.doi.org/10.2139/ssrn.1299017

Contact Information

John Gardner (Contact Author)
University of Oxford - Faculty of Law ( email )
St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom
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