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Sunday, December 27, 2009

The Philosophy of Positive Law;Foundations of Jurisprudence

By: James Bernard Murphy

Preface

At the foundation of philosophical jurisprudence, from Plato to Hans Kelsen, are three sets of concepts: natural law, customary law, and positive law. Each of these sets of concepts can be understood only in relation to the other two. They are united by a set of analogies and contrasts within a circle of interdefinability.

Positive law is contrasted with both natural law and customary law; customary law is sometimes “second nature” and sometimes “unwritten law”; natural law (ius naturale) is sometimes described as inherent, like custom, and sometimes as externally stipulated (lex naturalis), like positive law.

In other contexts, these three sets of concepts form a progressive hierarchy such that customary law presupposes natural law just as positive law presupposes customary law. All of these interrelations reflect the attempt to work out the relation of what is natural to what is conventional in law, of what has intrinsic moral force to what does not.

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