Modern discussions of Epicureanism often use the descriptions “legal positivism” and “natural law theory” without providing clear definitions of what is meant by these terms. This chapter remedies this deficiency by characterizing the Epicurean theory of justice and law from the perspective of contemporary philosophy of law. The first section develops a clear conceptual framework by distinguishing between different theses that characterize a view as leaning more toward legal positivism or natural law theory. The second section then tests Epicurean theory against these theses, concluding that even if the Epicurean account has some legal positivist leanings, it is overall closer to a kind of natural law theory.

This chapter addresses a basic question of general jurisprudence, that is, what difference law makes in moral space. It argues that a central characteristic of law is not necessarily that it tells us what morality (or justice) might dictate. Rather, it establishes a way of attributing decisions to all of us and not to any one of us in particular. Law’s distinctive moral virtue is not justice but legitimacy. What renders this possible is the operation of public officials whose value lies in acting in our name. The chapter defends what we label the standing conception of law, according to which law’s most basic moral contribution is that of establishing an entity whose normative pronouncements could count as being made in the name of (or even by) the people.

In his Foundations of Natural Right, J. G. Fichte advances the innovative thesis that the theory of right is independent of, or separate from, moral theory. Although Fichte is concerned to stress the originality of his approach, he refers approvingly to some “excellent hints” in the writings of J. B. Erhard. Given the recent scholarly interest in Fichte’s account of the relationship between right and morality, it is surprising that Erhard’s position is seldom discussed. Where it is discussed, it is often presented as merely a hesitant precursor of Fichte’s position. This paper provides a corrective to that view by arguing that Erhard’s account of the relationship between right and morality constitutes a distinctive and philosophically compelling position. In the first two sections, I reconstruct Erhard’s account of the relationship between right and morality. I argue that Erhard’s position is best characterized as focusing on the dynamic interplay between the theory of right and the requirements of morality as articulated by Kantian moral theory. In the third section, I demonstrate the coherence and significance of Erhard’s position by considering it in relation to a central debate in the philosophy of law—the debate between legal positivism and natural law theory.

In Chapter 9 I intend to firm up the revisionary Kantian conception of legal obligation. This I will do by, on the one hand, clarifying the relation between that picture and a specific family of views of legal obligation – the robust reason account – and, on the other hand, emphasizing the distinctively legal dimension of the kind of requirement just described.