How Law Claims, What Law Claims

28 Pages Posted: 12 Nov 2008 Last revised: 25 Mar 2009

John Gardner

University of Oxford - Faculty of Law

Date Written: November 10, 2008

Abstract

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.)

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

Suggested Citation

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

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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