The Irony of Law

17 Pages Posted: 25 Jun 2012 Last revised: 12 Sep 2012

Date Written: June 25, 2012

Abstract

John Finnis says that central cases of the concepts of social theory (such as the concept of law) fully instantiate values. Yet the instances of some such concepts (such as the concepts of slavery, of tyranny, and of murder) do not instantiate any value. I propose (and this is consistent with Finnis’s insight) that the central cases of such concepts fully instantiate certain ills. The central case of a concept essential to social theory may excel in some good or in some ill, or in neither, or in both. What about law? The central cases of a legal system, or of a law, do indeed involve goods that Finnis ascribes to them; the central cases also involve certain ills. That is the irony of law. Law secures essential goods for a community, and it incurs certain ills that are necessarily involved in its specific techniques for securing those goods. The irony is not just a theoretical tension; it works itself into a tension, which I try to explain, over a legal system’s regulation of the validity of its own particular legal norms.

Keywords: jurisprudence, concept of law

Suggested Citation

Endicott, Timothy A.O., The Irony of Law (June 25, 2012). Oxford Legal Studies Research Paper No. 42/2012. Available at SSRN: https://ssrn.com/abstract=2091043 or http://dx.doi.org/10.2139/ssrn.2091043

Timothy A.O. Endicott (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

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