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http://ssrn.com/abstract=2223760
 
 

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The Morality in Law


Leslie Green


University of Oxford - Faculty of Law; Queen's University - Faculty of Law

February 24, 2013

Oxford Legal Studies Research Paper No. 12/2013

Abstract:     
This paper tests the claim, made by H.L.A. Hart, that nothing is a legal system that fails to include certain obligations familiar in morality . This ‘minimum content’ thesis was rejected by Hans Kelsen, among others. Hart’s arguments for the minimum content thesis are unsound; but the thesis is correct and a different defense of it is offered. Two general worries about the thesis are then addressed. Brian Leiter argues that, since law is an artefact, it has no essential properties at all and, a fortiori, no essential content. This is shown to involve several errors. Others argue that Hart’s view about the relation between law and morality is not a theoretical thesis at all: it is the practical thesis that we should try to improve law by improving the concept of law. It is shown that this is not a possible interpretation of any of Hart’s arguments: ‘normative positivism’ has no Hartian foundations.

Number of Pages in PDF File: 45

Keywords: natural law, legal positivism, morality, social morality, obligations, minimum content of natural law, artefacts, demarcation problem, normative positivism, HLA Hart, Hans Kelsen, Brian Leiter

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Date posted: February 25, 2013  

Suggested Citation

Green, Leslie, The Morality in Law (February 24, 2013). Oxford Legal Studies Research Paper No. 12/2013. Available at SSRN: http://ssrn.com/abstract=2223760 or http://dx.doi.org/10.2139/ssrn.2223760

Contact Information

Leslie Green (Contact Author)
University of Oxford - Faculty of Law ( email )
Balliol College
Oxford
Oxford, UK, OX1 3BJ
United Kingdom
Queen's University - Faculty of Law ( email )
Kingston, Canada, Ontario K7L3N6
Canada
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