PALGRAVE GREAT DEBATES IN LAW
PALGRAVE GREAT DEBATES IN LAW Series editor Jonathan Herring Professor of Law University of Oxford Company Law Lorraine Talbot Contract Law Jonathan Morgan Criminal Law Jonathan Herring Employment Law Simon Honeyball Equity and Trusts Alastair Hudson Family Law Jonathan Herring, Rebecca Probert & Stephen Gilmore Jurisprudence Nicholas J McBride & Sandy Steel Medical Law and Ethics Imogen Goold & Jonathan Herring Property Law David Cowan, Lorna Fox O’Mahony & Neil Cobb
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PALGRAVE GREAT DEBATES IN LAW
GREAT DEBATES IN
JURISPRUDENCE
NICHOLAS J McBRIDE Fellow and Director of Studies in Law Pembroke College, Cambridge
SANDY STEEL Fellow and Tutor in Law Wadham College, Oxford
© Nicholas J McBride and Sandy Steel 2014 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. Crown Copyright material is licensed under the Open Government Licence v2.0. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6–10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2014 by PALGRAVE Palgrave in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of 4 Crinan Street, London N1 9XW. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave is a global imprint of the above companies and is represented throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN: 978–1–137–32753–6 paperback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. Typeset by Cambrian Typesetters, Camberley, Surrey Printed and bound in Great Britain by The Lavenham Press Ltd, Suffolk
For Isabel A.N.O. and Laura
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CONTENTS
1. THE NATURE OF LAW
1
2. THE NORMATIVITY OF LAW
25
3. THE RULE OF RECOGNITION
36
4. THE MORALITY OF LEGALITY
5. NATURAL LAW
66
82
6. ADJUDICATION AND INTERPRETATION
7. THE OBLIGATION TO OBEY THE LAW
8. MORALITY AND RIGHTS
9. JUSTICE
114
132
150
184
10. THE ENFORCEMENT OF MORALITY
206
11. THE VALUE OF STUDYING JURISPRUDENCE
vii
232
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