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Philosophical Foundations of the Nature of Law$
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Wil Waluchow and Stefan Sciaraffa

Print publication date: 2013

Print ISBN-13: 9780199675517

Published to Oxford Scholarship Online: May 2013

DOI: 10.1093/acprof:oso/9780199675517.001.0001

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The Explanatory Role of the Weak Natural Law Thesis *

The Explanatory Role of the Weak Natural Law Thesis *

Chapter:
(p.2) (p.3) 1 The Explanatory Role of the Weak Natural Law Thesis*
Source:
Philosophical Foundations of the Nature of Law
Author(s):

Mark C. Murphy

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199675517.003.0002

This chapter considers the role that the weak natural law thesis — the claim that any law that fails to be a rational standard for conduct is defective as law — in providing an account of the nature of law. It first considers and rejects some common objections to the weak natural law thesis. It then argues that the weak natural law thesis plays its role in natural law theory by way of an Aristotelian explanatory structure called ‘hypothetical necessity’: if it belongs to the office of law to be a rational standard for conduct, and a norm will be constitutionally unable to carry out that office unless it exhibits some feature, then that feature necessarily belongs to law. The chapter shows that if the weak natural law thesis is true and hypothetical necessity is an appropriate explanatory structure, a variety of positivist theses about false must be false.

Keywords:   natural law, legal positivism, defect, analytical jurisprudence, hypothetical necessity

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