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Law and Justice in Community: The Significance of the Living Law

Author(s): Oran Doyle

Journal: Nordicum-Mediterraneum
ISSN 1670-6242

Volume: 6;
Issue: 2;
Start page: CP3;
Date: 2011;
Original page

Keywords: Barden | community | Finnis | Fuller | jurisprudence | justice | Hart | legal theory | Murphy | philosophy of law | primary and secondary rules | state law

Law and Justice in Community provides an account of law that privileges the role of custom, which the authors characterise as the living law. In this paper, I argue that the authors' account of law observes the same features as those observed by Hart in his Concept of Law. However, Hart viewed all law through the lens of state law, with the result that he did not identify the purpose of law. Conversely, Barden and Murphy view all law through the lens of the living law, with the result that they do not identify some of the most acute issues raised by pervasive state law. Ultimately, each account is helpful as a corrective to the other.
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