If the law claims to be morally justified in its interference with our lives, what kind of moral justification would be appropriate to it? Is it enough that the law claims to do the right thing? This paper is a reflection on these questions. In other words, I argue that Alexy and Soper are wrong to believe that the law can make ordinary moral claims.
According to Alexy , p. Ratio Juris, Vol. Some remarks are in order here. Firstly, we are told that participants in legal practice necessarily make a claim to correctness by making and applying law. This means that such a claim is supposed to be a presupposition that is necessarily connected to the sense of those practices. Such a distinction between objective claims made by the law and subjective claims made by legal officials is essential to making the thesis that law makes claims something more than an empirical generalization that is easy to refute by counterexamples.
Frederick Schauer , pp. These examples, however, are useful only to show how restrictive the concept of law held by philosophers like Alexy, Soper, and Raz is.
Alexy argues that the claim to correctness is stronger than that; for him, it embraces a claim to moral correctness. Thus, it is not enough that the practice is guided by rules. My objections against the thesis that law necessarily makes some kind of moral claim does not depend on the refutation of the essentialist view held by its proponents. Alexy , pp.
Current Legal Problems, Oxford, Vol. It is implicit in the constitution. Therefore, there is another performative contradiction here. Nonetheless, in this second example, the claim to correctness seems to merely amount to what I have called above a weak claim to correctness. Although a claim to justifiability allows for different kinds of justification, for Alexy it also means that a critical perspective is opened, such that the initial claim to correctness ends up being a claim to morality in the form of justice.
Reasons that apply only to the enforcer of rules, such as those that concern her self-interest, do not qualify for that justificatory role. Alexy appeals to the alleged necessity of a stronger claim to correctness to justify why the bare proof that a judicial decision is in accordance with an authoritative rule is not enough to legally justify it. Alexy says that performative contradictions are merely a means of showing the necessary presuppositions implicit in legal practice.
But why would it be absurd for a judge to admit that her sentence is not correct in any other sense than the sense of being in conformity with current positive law? In: S. Coyle and G. Pavlakos eds. Oxford: Clarendon Press, Moreover, it would be odd for anyone - even a criminal - to announce that her aim is to be unjust, since being unjust is not usually a purpose. Instead, injustice is usually a byproduct of an egoistic purpose, and the egoist simply does not care about whether her action causes injustice.
As Matthew Kramer , p. Oxford: Oxford University Press, To sum up, Alexy , p. What I am saying in reply is that the implicit part in his examples is a matter of interpretation. We can detect such performative contradictions only if we assume that there is only one possible interpretation of enactments or applications of law: they must be acts that attend some purpose that is higher than bare egoistic purposes.
Therefore, there are no such performative contradictions if we can make intelligible the utility of legal practice to serve openly egoistic purposes. That is what I intend to do in section 4. In addition to the method of performative contradiction, Alexy , p. According to Alexy, since we are in the sphere of openness, legal decisions cannot be made only on the basis of legal standards. Thus, Alexy concludes:. Yet, if the claim to correctness is to be met, the question of correct distribution and correct balance must have priority.
Questions as to correct distribution and as to correct balance are questions of justice. Questions of justice are, however, moral questions. Therefore, the claim to correctness produces a necessary methodological or argumentative connection between law and morality. The claim to legal correctness is on no account identical with the claim to moral correctness but it includes a claim to moral correctness. Firstly, as Heidemman , p.
If the elite controlling the legal system are powerful enough not to fear rebellion from the oppressed, would they not be expected to be open about their self-concern by bringing considerations of self-interest to settle matters in cases of legal indeterminacy? If there is such a possibility, the argument from open texture is no better than the argument from performative contradictions. Thus, we should provisionally conclude that Alexy cannot provide anything beyond the bare assertion that a stronger claim to correctness is necessarily connected to the law.
Regarding the open texture of law, Soper , p. Cambridge: Cambridge University Press, According to Soper , p. Soper supports the first alternative. His thesis is that law necessarily makes ordinary moral claims regarding the content of its norms. In: R. George ed. In other words, according to the law, the norm-addressee should comply with the norm that is being enforced because the norm-content is just, not necessarily because he or she has an obligation to obey the law qua law.
It should be stressed that Soper is not denying that the law has authority. He is denying that the law necessarily claims authority. Nonetheless, it is not clear that it would be a problem if our legal theory were to attribute to law a claim that political theory considers invalid. After all, it seems that just as law can have authority without claiming to have authority, as Soper argues, law can also claim to have authority without actually having authority.
Leslie Green makes a nice analogy regarding this point:. Compare the case of papal authority. Suppose a sceptical argument to the conclusion that popes lack the infallibility they claim - suppose that atheists or the reformed Christian churches are right in thinking this an unjustifiable pretence.
Would this in any way undermine our confidence in the character of the claim? In: J. Making the decision to study can be a big step, which is why you'll want a trusted University. Take a look at all Open University courses.
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All rights reserved. The Open University is authorised and regulated by the Financial Conduct Authority in relation to its secondary activity of credit broking. Skip to main content. Search for free courses, interactives, videos and more! Free learning from The Open University. Featured content. However, let us make them perfectly rational and devoid of all emotion, totally free of all purposes, needs, or desires. Like computers, they simply register what is going on, but they make no moves to ensure their own survival or avoid their own destruction.
Do good and evil exist now? Again, there is no theoretical way in which they can. And thus they have no rationale for declaring a thing good or evil. Nothing matters to them and, since they are the only beings in the universe, nothing matters at all.
Enter Adam. Adam is a man who is fully human. He has deficiencies, and hence needs. He has longings and desires. He can experience pain and pleasure and often avoids the former and seeks the latter. Things matter to him.
At this point, and only at this point, do good and evil appear. Such a being is, indeed, the measure of all things: of good things as good and of bad things as bad. For what could it be? And, without him, good and evil could not exist. We will call her Eve. Interesting things begin to happen at this point. For, on the one hand, we have two people with similar aims who are capable of working together for a common cause. And so a complex interpersonal relationship develops, and rules are established to maximize mutual satisfaction and to minimize the effects of evil.
With rules, we now have right and wrong. And from this basic recognition of the need for cooperation ultimately come laws and ethics. But now let us suppose that these two people come to a fierce disagreement over the best way to perform a desired action. The two argue and seem to get nowhere.
And then Adam pulls his trump card. Well, this is all new to Eve, and so she asks Adam, who seems to know so much about it, to provide a little more detail on these absolute standards. So we can see that without living beings with needs, there can be no good or evil. And without the presence of more than one such living being, there can be no rules of conduct.
Morality, then, emerges from humanity precisely because it exists to serve humanity. Theology attempts to step outside this system, even though there is no need beyond coercion for such a move. When theologians imagine that human beings, without some theologically derived moral system, would be without any points of reference upon which to anchor their ethics, they forget the following factors which most humans share in common:.
For these and other reasons, it should not appear strange that human beings can find common ground on the issue of moral values without having to appeal to, or even have knowledge of, a divine set of rules. In fact, ironically, once religiously based rules are brought into any dispute, especially if there is more than one religious view present, the more the religious arguments are used the less agreement there is.
This is because many religiously and theologically based values do not relate to each other or the actual human condition or the science of the world. It is theological values, then, and not human-oriented values, that are the most baseless. For, with theological values, an arbitrary leap of faith must be taken at some point.
And once that arbitrary leap has been taken, all values so derived are as arbitrary as the leap of faith that made them possible. So, it is not the humanist who needs to offer an explanation for value. What explanation could be needed for the fact that people naturally pursue human interests and thus relate laws and institutions to human concerns?
It is only when someone seeks to depart from this most natural of pursuits that any questions need be raised. It is only when someone posits a law higher than what is good for humanity that doubts need be expressed. For it is here than an explanation or justification of a moral base makes sense. The burden of proof belongs on the one who steps outside the ordinary way in which morals are derived — not on the one who continues to keep his or her morals, laws, and institutions relevant, useful, and democratically produced.
By Fred Edwords There is a tendency on the part of many theists to assume that the burden of proof is on the nontheist when it comes to the issue of morality. Laws And Lawmakers Unthinkingly, people often assume that the universe is run in a fashion similar to human societies. An Absolute Point Of Reference At this point, it can be asked: how is it possible that the governed are able to rule themselves? The Source Of Morality But does this completely solve the problem posed by the theist?
Less Than Absolute Points Of Reference So we can see that without living beings with needs, there can be no good or evil. When theologians imagine that human beings, without some theologically derived moral system, would be without any points of reference upon which to anchor their ethics, they forget the following factors which most humans share in common: Normal human beings share the same basic survival and growth needs.
We all belong to the same species and reproduce our own kind. So it should come as no surprise to anyone that we can have common interests and concerns. Sociobiologists are learning that important human behaviors which seem to persist across cultural lines may be rooted in the genes. Therefore, many of the most basic features of culture and civilization could be natural to our species.
Certainly paleoanthropology helps to bear this out when it is recognized that the oldest hominids known show evidence of having been social animals. And our similarities to living apes involve more than mere appearance.
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