Liam Murphy, What Makes Law: An Introduction to the Philosophy of Law, Cambridge: Cambridge University Press, 208 pp, hb £50.00.
| Published date | 01 May 2015 |
| Date | 01 May 2015 |
| DOI | http://doi.org/10.1111/1468-2230.12129 |
REVIEWS
Liam Murphy,What Makes Law: An Introduction to the Philosophy of Law,
Cambridge: Cambridge University Press, 208 pp, hb £50.00.
Anglo-American legal scholarship has seen comparatively few monographs on
general jurisprudence in the last few years. It is not hard to see why. Last
century’s masterpieces, such as H. L. A. Hart’s The Concept of Law (Oxford:
Clarendon Press, 1961), John Finnis’ Natural Law and Natural Rights (Oxford:
OUP, 1980) and Ronald Dworkin’s Law’s Empire (Cambridge, MA: Harvard
University Press, 1986) have dominated classroom teaching and scholarly debate
since their publication several decades ago. Second, even third editions of these
texts have been published, whilst a voluminous secondary literature still argues
over who was right about what and why. To the practically minded, this may all
seem rather unedifying: an endless and abstract squabble over the concept of law.
This is made all the more frustrating by the habit some legal theorists have of
talking exclusively to each other, rather than to practicing lawyers or legally
conscious citizens. For instance, legal positivism is so narrowly defined by some
of its proponents that they openly admit it implies nothing about how legal
disputes should be decided or how we should understand our legal obligations
(see eg, J. Gardner, ‘Legal Positivism: 5
1
⁄
2
Myths’ (2001) 46 American Journal of
Jurisprudence 199). Is it any wonder that theory-scepticism prevails?
In What Makes Law: An Introduction to the Philosophy of Law, Liam Murphy
grasps the bull by the horns in an effort to persuade theory-sceptics that general
jurisprudence still matters. As an introductory text, the book is accessible and
pleasant to read, however its subtitle is somewhat misleading. It is not a textbook,
nor a summary of contemporary scholarship. Rather, What Makes Law is a
monograph that asks how we can work out the content of the law in force and
why doing so is important. For instance, in chapter 4, which discusses
‘nonpositivist’ theories of law, John Finnis and the natural law tradition are
mostly conspicuous by their absence. The only reference made is on page 50,
where Murphy notes Philip Soper’s argument that in order to count as law,
official directives must be just enough to justify their enforcement (P. Soper, ‘In
Defense of Classical Natural Law in Legal Theory: Why Unjust Law Is No Law
at All’ (2007) 20 Canadian Journal of Law and Jurisprudence 201). Were Murphy
offering an introduction to the philosophy of law, this omission would be
glaring. There are many interesting philosophical questions presented in Natural
Law and Natural Rights that do not touch upon how to identify the content of the
law in force or whether we have an obligation to obey. But Murphy’s restricted
focus makes sense insofar as the book is an argument for why general jurispru-
dence should matter to practicing lawyers: identifying binding standards is an
important part of their job.
Following a short introduction, chapters 2 to 4 discuss the question of how to
identify the law in force, which Murphy (following Dworkin) describes as a
‘dispute . . . about the grounds of law – of what makes propositions of law true’
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© 2015 The Authors. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(3) MLR 571–584
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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