Escapable Law: John Gardner on Law and Morality

25 Pages Posted: 29 Oct 2018

See all articles by Leslie Green

Leslie Green

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

Date Written: October 6, 2018

Abstract

Morality judges law, but law does not judge morality. It counts against a law that it is immoral, but it does not count against a sound moral principle that it is illegal. John Gardner offers an intriguing explanation of this fact. He claims that we can always demand a non-legal reason for acting in accordance with the law, but that it makes no sense to ask for a non-moral reason for acting in accordance with morality: morality is 'inescapable'. I explore, but ultimately reject, this explanation. I have doubts about Gardner's account of the normativity of law, and about his notion of what it is for a norm to be 'inescapable'. I also have doubts about his view, shared by many natural lawyers that, in its paradigm case, law is morally obligatory. The asymmetry between the normative authority of law and morality is a feature of their (claimed) respective jurisdictions.

Keywords: law, morality, positivism, natural law, normativity, John Gardner

Suggested Citation

Green, Leslie, Escapable Law: John Gardner on Law and Morality (October 6, 2018). Oxford Legal Studies Research Paper No. 15/2018. Available at SSRN: https://ssrn.com/abstract=3261903 or http://dx.doi.org/10.2139/ssrn.3261903

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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