jurisprudence Resources

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What is Law within this context?

Even if we choose to reject Kelsen's awkward account of the targets of law, his basic point remains the same. This is because of the fact that, according to Kelsen, it had come to be understood that what is considered law has nothing to do with its conformity to any normative standard of justice, morality, or utility or efficiency.

This is because of the fact that Kelsen understood from his study in this area that "It is possible to deduce from nature, that is to say from the nature of man, from the nature of society, and even from the nature of things, certain rules which provide an altogether adequate prescription for human behaviour", so, "Nature is conceived of as a legislator, the supreme legislator" because, after all, even Hart recognises that an element of natural law applies within all jurisprudence that is conceived of.

Moreover, it is also to be appreciated that the jurisprudence of John Finnis effectively grounds both moral and municipal law in the common good in contemporary Western society because, in understanding natural law, virtue is not, as colloquial usage suggests, a strict adherence to a moral code.

But, according to Joseph Raz, it must be recognised that law has a distinctive authority that is considered to be inconsistent with morality playing the role Finnis envisions. This is because of the fact that Raz came to understand that practical reasonableness did not need to play the role, regarding the fault that Finnis describes, since it draws upon other features of virtue ethics instead.

As a result, the understanding of law that has developed has come to reflect the idea that it has been established that there is both a sense of obligation and a basis for criticism of actions inconsistent with law and looks to recognise the focal point is of a person of sound morality and not a strict adherence to a moral code regarding criminal liability and punishment, despite the complications caused by an understanding of the aretaic theory of punishment, in Western society and contemporary jurisprudence even today.