The law-morality relation revisited: A challenge to established traditions by the Australian sceptical approach
Wickham, G. (2006) The law-morality relation revisited: A challenge to established traditions by the Australian sceptical approach. Griffith Law Review, 15 (1). pp. 27-48.
Three long-established, competing frameworks for understanding the law-morality relation - the individual reason-based tradition (represented here by Rawls), the communitarian tradition (MacIntyre and Cotterrell) and the utilitarian or positivist tradition (Austin and Hart) - are challenged by some research into early modern thinkers like Hobbes, Hale, Pufendorf and Thomasius. More specifically, I use some work by Ian Hunter and David Saunders to present an approach to law-morality which I call the Australian sceptical approach. I present and promote this approach in terms of its two main features. The first is its use of historical research into a particular use of law in early modern Europe, by which law was combined with a pointedly restricted understanding of Western morality in a bid to stop the carnage being caused by religious wars - wars fought over competing visions of morality. The second is its deployment of this and other historical evidence in polemics against traditions that impose on the past and the present an over-arching philosophical position about, or theory of, law-morality, often in the service of arguments against the idea of law as a neutral instrument used to attain civil peace.
|Publication Type:||Journal Article|
|Murdoch Affiliation:||School of Social Sciences and Humanities|
|Publisher:||Socio-Legal Research Centre, Griffith Law School, Griffith University|
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