The Philosophy of Positive Law: Foundations of jurisprudence by James Bernard Murphy (review)

BOOK REVIEWS 167 represents, albeit implicitly, through the words of the Eucharistic consecration) than that of a mere accident of history. These criticisms aside, McAleer deserves our gratitude for endeavoring to recover the wisdom of Aquinas on the meaning of the body. The central and resounding theme of the book, that the body enjoys an integral participation in the self-diffusive nature of the good, is both illuminating and profound. That this work offers an opening salvo on the self-diffusive nature of the good means an invitation to pick up and carry on this important reflection by other scholars in the field has been issued. We can only hope that those Thomists who wish to take up the cause are as well attuned to the need for showing the ongoing relevance of Aquinas for modern thought as is McAleer. PAUL GONDREAU Providence College Providence, Rhode Island The Philosophy of Positive Law: Foundations of Jurisprudence. By JAMES BERNARD MURPHY. New Haven: Yale University Press, 2005. Pp. 256. $40.00 (cloth). ISBN 0-300-10788-9. James Bernard Murphy's exquisitely learned volume concerning some episodes in the history of jurisprudence aims at evaluating the "philosophy of positive law"-which is, he tells us, distinct from legal positivism (21). We know what legal positivism is: it is the thesis that the existence of law is a matter of social fact, and as a result there are no necessary constitutive constraints on law set by morality. What, though, is this philosophy ofpositive law with which legal positivism is contrasted? The philosophy of positive law is not a thesis or a theory but rather a project, or research program: that of distinguishing a certain sort of law-that which we pick out in terms of its being enforced by the courts-from other sorts of law, and in which this distinction is carried out by characterizing that law as posited, laid down, deliberately imposed. This is a project on which, for all of their other differences, Thomas Aquinas, Thomas Hobbes, and John Austin were engaged. Indeed, not only is this project to be distinguished from the theory of legal positivism, it is only once this project was set to the side that legal positivism really took off as a successful theory. That legal positivism took off when the project of the philosophy of positive law was abandoned suggests that there was something about that project that was dooming jurisprudence to frustration. This is, I take it, Murphy's view. The project of distinguishing the law that our courts are concerned to enforce from other sorts of law-most preeminently in Aquinas, Hobbes, and Austin, natural law-failed repeatedly within these theories. Further, given the heterogeneity of 168 BOOK REVIEWS the sorts of norms enforced by courts-statutes, precedents, customs, opinions of learned authorities, etc.-the attempt to absorb all of these into a common pattern, in which these norms are deliberately imposed by some governing authority, was doomed to fall short. Murphy's argument begins with a discussion of philosophy of language centered on Plato's Cratylus. His view is that the themes of the opposition of nature and convention, custom and stipulation that appear in that dialogue and are from there taken up into the philosophical tradition influence the course of the jurisprudential debate. As far as I can tell, this suggestion is not made good in the rest of the book: these philosophy-of-language issues are never really at the center of things, and when they do appear (e.g., in the chapter concerned with Hobbes's views, which I will consider below), they raise more questions than they answer, and are used to forward implausible theses. Murphy's argument is, I think, largely independent of any of these reflections on language, and nothing of the main argument is lost by turning directly to the first of three rich historical investigations, that on Aquinas's view. In this chapter, Murphy presents a well-worked-out account of Aquinas's theory of positive law, emphasizing that positive law is for Aquinas not simply a matter of human law but divine law as well. Here we have the first critique of the...