What is the meaning of sentences of the form 'X is the lawful government of the country Y,' and what kinds of statements are normally -made by using them? Most answers to these questions can be classified as legalistic, moralistic, or compromise solutions. The gist of the legalistic approach is that the lawful government is that authorized by the positive law of the land. Critics of the legalistic approach point out that disagreement about the lawful government is not always solved when agreement is reached about the positive law of the land. For example, two people may disagree as to whether the Colonels' Government is the lawful government of Greece, while being in complete agreement that the post-coup law is the positive law of Greece. From this fact, which indeed should be admitted and explained by any theory on the subject, the moralists conclude that the lawfulness of a government is a matter of morality and not of law. It is determined by moral rules, by personal commitments, etc. Those who favor a compromise solution claim that in certain contexts sentences about lawful governments are used to make legal statements, while in other contexts they are used to make moral statements or express moral positions or attitudes.
In this paper I will first criticize one moralistic solution, that presented by R. M. Hare, and one compromise solution, the one put forward by J. G. Murphy, and then proceed to formulate and defend a variant of a legalistic position.
Comparative and Foreign Law | Law | Law and Philosophy
On Lawful Governments,
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