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Law and Justice in Community$
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Garrett Barden and Tim Murphy

Print publication date: 2010

Print ISBN-13: 9780199592685

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199592685.001.0001

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The Origins of Civil Society and the Function of Law

The Origins of Civil Society and the Function of Law

(p.19) 2 The Origins of Civil Society and the Function of Law
Law and Justice in Community

Garrett Barden

Tim Murphy

Oxford University Press

How did it come about that humans live together in a community? This chapter argues — in contrast to ‘social contract’ approaches — that human society is a spontaneous ordering of the natural sociability of humans. Civil society is a spontaneous order that gives rise to a spontaneous jural order made up of the ‘living law’ or communal moral law, which state or positive law expresses in part and develops. It emphasizes the similarity between the practice of language and the social and jural domains, and argues that the function of all law is to sustain a peaceful social order. The discussions in the chapter are drawn together with reference to Thomas Hobbes's De Cive (1642) and Leviathan (1651).

Keywords:   civil society, social contract, spontaneous order, social order, jural order, living law, communal moral law, function of law, Thomas Hobbes

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