Authority, Law and Morality 1

Abstract

Three theses with clear implications concerning the relation between law and morality have been defended in recent years. They can be briefly, if somewhat roughly, stated as follows: The Sources Thesis; The Incorporation Thesis; The Coherence Thesis. This chapter defends the Sources Thesis against some common misunderstandings and provides one reason for preferring it to the other two. It focuses on the nature of authority. The connection between law and authority is used to criticise R. M. Dworkin's support of the Coherence Thesis, as well as the Incorporation Thesis advocated by H. L. A. Hart and others. Authority in general can be divided into legitimate and de facto authority. The Normal Justification thesis replaces the agreement between the litigants which was the basis of the arbitrator's authority. The incorporation thesis is incompatible with the authoritative nature of law. Law is a complex social institution and some of its complexities help mask the incorporation thesis's mistake.

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