Law and Justice in Community

by Garrett Barden and Tim Murphy

This book provides a statement of a general theory of law based on the perspective that ‘law’ exists in all human communities before it is ever posited or in any other sense formally expressed. According to the book, ‘law’ is not only what is variously called ‘positive law’, ‘state law’ or, somewhat misleadingly, ‘human law’. On the contrary, the idea that a living law is an omnipresent feature of human community is a central theme of this book. By ‘living law’ the book means primarily those judgments and choices that in recurrent kinds of circumstances are generally accepted and approved in a particular community. The book begins by exploring the origins of civil society and the function of law. The book adopts the Roman law definition of justice as the willingness to give each what is due, and it examines the mutual rights or entitlements that must be for the most part honoured for any society to survive. In addition to distinguishing natural justice from conventional justice, and setting out in detail the distinction between distributive justice, rectificatory justice, and reciprocal justice, this study contains chapters on justice and the trading order; the nature of adjudication and interpretation; the relationship between morality, law, and legislation; natural law; rights; the force of law; and the authority and legitimacy of law.