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Crowe, Jonathan --- "The nature of law" [2019] ELECD 2225; in Crowe, Jonathan; Lee, Y. Constance (eds), "Research Handbook on Natural Law Theory" (Edward Elgar Publishing, 2019) 419

Book Title: Research Handbook on Natural Law Theory

Editor(s): Crowe, Jonathan; Lee, Y. Constance

Publisher: Edward Elgar Publishing

Section: Chapter 25

Section Title: The nature of law

Author(s): Crowe, Jonathan

Number of pages: 10

Abstract/Description:

Jonathan Crowe’s chapter examines natural law perspectives in contemporary philosophy of law. Natural law views in jurisprudence are united by the natural law thesis: law is necessarily a rational standard for conduct. This thesis entails that anything that is not a rational standard is either not law or a defective example of law. Crowe begins by surveying the various arguments natural law theorists have presented for their favoured versions of the thesis. He then defends his own preferred route to the thesis, which involves analysing the nature of law as a human artifact. The function of law, Crowe argues, is to serve as a deontic marker for human conduct by creating a sense of social obligation. A law that is poorly suited to this function - such as a badly drafted, unjust or unreasonable standard - will therefore be legally defective, while a putative law that is incapable of playing its function - such as an incomprehensible or deeply repugnant standard - will be no law at all. This view - which Crowe calls the artifact theory of law - vindicates the natural law claim that law is necessarily a rational standard. It also refutes the legal positivist slogan that ‘[t]he existence of law is one thing; its merit or demerit is another’.