Soper's Moral Conception of LawA Theory of Law. Philip Soper

Abstract

A central, persisting problem for theory is the relationship between and morality. Reasons to affirm and to deny merits some measure of respect seem safely grounded in the The law's antinomous character is reflected in Holmes's suggestion understanding the requires we wash the notion of duty with cynical acid.' Holmes meant not merely to distinguish from morality but also to emphasize that wrong statutes can be and are enforced.2 This suggests requirements, or duties, can fail to merit any of the respect duties are due. The terms we apply to law, such as duty, seem to carry moral force law's moral fallibility appears at the same time to deny. There are other antinomies. That a government is legitimate, for example, suggests it enjoys a moral right to govern, and yet governments conventionally credited with legitimacy are capable of conduct seems to forfeit any claim they might have to respect. The jurisprudential schools of natural law and legal positivism represent contrary attempts to resolve these antinomies-one affirming and the other denying law, by its nature, merits respect. Philip Soper's theory of can be placed within this context: Soper takes the side of natural law. (Soper conceives of natural law more narrowly [p. 51].)