Law, Moral Facts and Interpretation: A Dworkinian Response to Mark Greenberg’s Moral Impact Theory of Law

2019 ◽  
Vol 32 (1) ◽  
pp. 5-43 ◽  
Author(s):  
Thomas Bustamante
Keyword(s):  
Legal Practice ◽  
Moral Obligations ◽  
Metaphysical Theory ◽  
Impact Theory ◽  
Law And Morality ◽  
The Law ◽  
Theory Of Law ◽  
The One ◽  
Moral Facts

Ronald Dworkin’s philosophy of law, in its mature version, is grounded in at least two central claims: first, a thesis about law and morality, which we might call the One-System Thesis; second, a thesis about how moral and legal propositions can be said to be true or false, which we might call the Interpretive Thesis. While the One-System Thesis holds that law and morality form a single system, the Interpretive Thesis makes two distinct claims: first, truth of interpretive propositions—such as moral and legal propositions—must be established from within the practice in which they figure; second, the soundness of an interpretive proposition is related to the purpose of the practice under consideration. Mark Greenberg’s Moral Impact Theory of Law accepts the One-System Thesis while rejecting the Interpretive Thesis. The Moral Impact Theory is a metaphysical theory of how moral facts rationally determine the content of the law. Its main contention is that the actions of legal institutions have an impact on the moral obligations people have in a polity, and the content of the law is made up of the moral obligations that result from the actions of such institutions. Greenberg assumes that moral facts pre-exist and have some metaphysical priority in relation to legal facts. Moral facts must be prior and independent from legal practice in order to play a part in the rational determination of the content of the law. The point of this paper is to offer a response to Greenberg. I argue that the One-System Thesis only should be supported if the Interpretive Thesis is correct, and that without the latter the former becomes an implausible version of natural law jurisprudence.

scholarly journals MEMBANGUN MORALITAS DAN HUKUM SEBAGAI INTEGRATIVE MECHANISM DI MASYARAKAT DALAM PERSPEKTIF HUKUM PROGRESIF

2021 ◽  
Vol 14 (2) ◽  
Author(s):  
Adam Ilyas ◽  
Dicky Eko Prasetio ◽  
Felix Ferdin Bakker
Keyword(s):  
Rule Of Law ◽  
Legal Practice ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Law And Morality ◽  
The Law

Abstract This study aims to analyze the application of morality to legal practice in Indonesia. This is because the reality of the rule of law today is dominated by a positivist-legalistic phenomenon that prioritizes text but darkens morality's meaning in law. Morality in law seems to be immersed in legal practice that deifies the textual law but neglects the law's moral essence. This research is juridical-normative research oriented towards coherence between the principles of law based on morality and legal norms and legal practice in society. This research's novelty is the development of morality in the rule of law practice by prioritizing two aspects, namely the integrative mechanism aspect of Harry C. Bredemeier with the progressive law of Satjipto Rahardjo. This study emphasizes that efforts to develop law must not forget the elements of morality development. This study's conclusions highlight that the development of law and morality will run optimally by upholding the law as an integrative mechanism and applying progressive law as a solution in facing the lethargy of the Indonesian nation.Keywords: integrative mechanism; morality; progressive lawAbstrak Penelitian ini bertujuan untuk menganalisis penerapan moralitas pada praktik berhukum di Indonesia. Hal ini dikarenakan bahwa realitas praktik berhukum saat ini didominasi oleh fenomena positivistik-legalistik yang mengutamakan teks tetapi menggelapkan makna moralitas dalam berhukum. Aspek moralitas dalam hukum seakan tenggelam dalam praktik hukum yang mendewakan tekstual undang-undang tetapi melalaikan esensi moral dalam undang-undang. Penelitian ini merupakan penelitian yuridis-normatif yang berorientasi pada koherensi antara asas-asas hukum yang bersumber pada moralitas dengan norma hukum serta praktik hukum di masyarakat. Kebaruan dari penelitian ini yaitu pembangunan moralitas dalam praktik negara hukum dengan mengedepankan dua aspek, yaitu aspek integrative mechanism dari Harry C. Bredemeier dengan hukum progresif dari Satjipto Rahardjo. Hasil dari penelitian ini menegaskan bahwa upaya membangun hukum tidak boleh melupakan aspek pembangunan moralitas. Simpulan dalam penelitian ini menegaskan bahwa, pembangunan hukum dan moralitas akan berjalan secara optimal dengan meneguhkan hukum sebagai integrative mechanism serta menerapkan hukum progresif sebagai solusi dalam menghadapi jagat kelesuan berhukum bangsa Indonesia.

Integration of one-dimensional equations of motions

2020 ◽  
pp. 79-90
Author(s):  
Gleb L. Kotkin ◽  
Valeriy G. Serbo
Keyword(s):  
Potential Energy ◽  
Field Change ◽  
One Dimensional ◽  
System A ◽  
Small Correction ◽  
The Law ◽  
The One ◽  
The Given ◽  
Equations Of Motions

If the potential energy is independent of time, the energy of the system remains constant during the motion of a closed system. A system with one degree of freedom allows for the determination of the law of motion in quadrature. In this chapter, the authors consider motion of the particles in the one-dimensional fields. They discuss also how the law and the period of a particle moving in the potential field change due to adding to the given field a small correction.

scholarly journals The problem adherence to the rule and jurisprudence

2021 ◽  
pp. 84-98
Author(s):  
Nikita Konstantinovich Fedorinin
Keyword(s):  
Theoretical Analysis ◽  
Philosophy Of Language ◽  
Legal Norm ◽  
Legal Practice ◽  
Practical Application ◽  
The Subject ◽  
Theory Of Law

The discussion on application to law of the principle of adherence to the rule formulated in the works of L. Wittgenstein and S. Kripke has been going in the foreign theory of law since the late 1980s, and now has been joined by the Russian researchers. The article conducts a theoretical analysis and assessment of the positions and arguments expressed by the participants of this discussion, and sums up the results. The author examines the content of the principle of adherence to the rule in the philosophy of language, describes the methods of interaction between jurisprudence and philosophy, and problematizes the link between the principle of adherence to the rule in the philosophy of language and the subject of discussion. The work employs a wide variety of sources and philosophical concepts. The scientific novelty of this research consists in the following: 1) substantiation of the absence of link between the practical application to law of the principle of adherence to the rule raised in the discussion and the content of the principle of adherence to the rule in the philosophy of language; 2) description and analysis of the method of interaction of legal dogma and philosophy of language, the determining role that it plays in structuring the arguments of the participants in the discussion, as well as its defining role for the main outcome of the discussion – refusal to address the problem of adherence to the rule in legal dogma and legal practice; 3) determination of the importance of the principle of adherence to rule for the theory of law in the context of the ontology of legal norm.

scholarly journals Implikasi Putusan Hakim Dalam Penetapan Sanksi Di Bawah Minimum Terhadap Tindak Pidana Narkotika

2019 ◽  
Vol 3 (1) ◽  
pp. 129-146
Author(s):  
Endy Ronaldi ◽  
Dahlan Ali ◽  
Mujibussalim Mujibussalim
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Research Method ◽  
Court Decisions ◽  
The Supreme Court ◽  
The Law ◽  
The One ◽  
Principle Of Legality

Tindak pidana narkotika merupakan kejahatan luar biasa sehingga menjadi prioritas pemerintah untuk diperangi. Penanggulangan tindak pidana narkotika diatur dalam Undang-Undang No. 35 Tahun 2009 tentang Narkotika. Salah satu pengaturan dalam undang-undang tersebut adalah pemberian sanksi di bawah minimum melalui putusan hakim. Sebagaimana kasus yang terjadi dalam Putusan Nomor 64/PID/2012/PN Sigli, Putusan No. 1/pid.sus/2016/PN Cag. (narkotika) dan Putusan No. 14/pid.sus/2016/PN Cag. Adapun permasalahan yang dikaji yaitu faktor penyebab hakim memutuskan sanksi di bawah minimum kepada pelaku narkotika dan implikasinya. Metode penelitian yang digunakan adalah metode yuridis normatif dengan mengkaji aspek normatif atas permasalahan yang dikaji. Pendekatan yang dilakukan adalah pendekatan kasuistik dengan menelaah putusan pengadilan. Putusan pengadilan dengan penetapan sanksi di bawah minimum disatu sisi bertentangan dengan asas legalitas dalam hukum pidana. Sehingga hal ini diakomodir dalam Surat Edaran Mahkamah Agung No. 3 tahun 2015. Narcotics crimes are extraordinary crimes so that become government priorities to be minimized. Tackling narcotics crime is regulated in Law No. 35 of 2009 concerning Narcotics. One of the regulations in the law is to impose sanctions below the minimum through a judge's decision. As the case with is the Decision Number 64/PID/2012/PN Sigli. The problems studied are the factors that cause the judge to decide the minimum sanctions for narcotics and their implications. The research method used is a normative juridical method by examining the normative aspects of the problem under study. The approach taken is a casuistic approach by examining court decisions. Court decisions with the determination of sanctions below the minimum on the one hand are contrary to the principle of legality in criminal law. So that accommodated in the Supreme Court Circular No. 3 of 2015.

scholarly journals “Bodies can be compelled; minds must be turned, since they cannot be compelled”: Preaching as an “Introduction” to Law in the Ecclesiastes of Erasmus of Rotterdam

2021 ◽  
pp. 7-19
Author(s):  
Dawid Nowakowski
Keyword(s):  
Human Life ◽  
The Political ◽  
Short Discussion ◽  
Political Dimension ◽  
Law Of Nature ◽  
Xvith Century ◽  
The People ◽  
The Law ◽  
Theory Of Law ◽  
The One

The recent studies on the relations between humanism or humanists and jurisprudence convince that Reneaissance, especially in XVIth century, when the national states began to raise, belonged to the periods of increased interest in the issue of law. Although Erasmus was not a layer, nor he introduced in any of his works a complete theory of law, he maintained close relations with many leading theoreticians of the law and jurists (Alciati, Budé, Cantiuncula, Zasius) and sometimes spoke in the legal discussions of his age. Among hist most important works concerning the matter of law were: Institutio principis Christiani, Ratio seu Methodus verae theologiae, Christiani matrimonii institutio, De interdicto esu carnium and Ecclesiastes. In the paper I’m going to concentrate on this latter work, in which Erasmus discusses the significance of preaching, preacher and widely understood Christian rhetoric. In the Ecclesiastes Erasmus touches the law subject with the special emphasis on historical character of law and relations between the divine law, the law of Christ and the law of Nature. After a short discussion about his understaning of law I will concentrate on the essential differentiation between the letter of law and the spirit of law, and I will point at proposed by Erasmus ways of introduction of law into human life. Erasmus, on the one hand, escaped a rigidity and abstraction of law and, on the other, he neutralised an aspect of the coercion of law. In his solution Erasmus appreciated the political dimension of preaching and acknowledged preacher as a more important guide of the people, than ruler. I’m going to interpret the Erasmian concept of preaching as an rhetorical mean of introduction of law in analogical way to “introduction” proposed by Plato in his Nomoi.

On the Moral Impact Theory of Law

2021 ◽  
Author(s):  
Ezequiel H Monti
Keyword(s):  
Moral Obligation ◽  
Legal Institutions ◽  
Moral Obligations ◽  
Plausible Account ◽  
Legal Obligations ◽  
Impact Theory ◽  
Joseph Raz ◽  
Theory Of Law ◽  
Better Than

Abstract Mark Greenberg argues that legal obligations are those moral obligations created by the actions of legal institutions in the legally proper way (Moral Impact Theory of Law, MITL). Here I defend three main claims. First, I argue that, although very often misunderstood, Joseph Raz is also a defender of MITL. Secondly, I argue that while both Greenberg and Raz are committed to MITL, they disagree about the conditions under which a moral obligation can be said to be created in the legally proper way. Finally, I argue that Raz’s variant of MITL is better than Greenberg’s. It rests on a more plausible account of authority and it avoids one of the crucial defects threatening Greenberg’s view, namely, its overinclusiveness.

Integration of one-dimensional equations of motion

2020 ◽  
pp. 3-5
Author(s):  
Gleb L. Kotkin ◽  
Valeriy G. Serbo
Keyword(s):  
Potential Energy ◽  
Equations Of Motion ◽  
Field Change ◽  
One Dimensional ◽  
System A ◽  
Small Correction ◽  
The Law ◽  
The One ◽  
The Given

If the potential energy is independent of time, the energy of the system remains constant during the motion of a closed system. A system with one degree of freedom allows for the determination of the law of motion in quadrature. In this chapter, the authors consider motion of the particles in the one-dimensional fields. They discuss also how the law and the period of a particle moving in the potential field change due to adding to the given field a small correction.

scholarly journals AGREEMENT OF THE WILLS FROM THE CONTRACTUAL PARTIES AS ONE OF THE CONDITIONS TO MAKE A DEAL

2018 ◽  
Vol 28 (6) ◽  
pp. 1953-1957
Author(s):  
Aleksandra Patoska
Keyword(s):  
Administrative Law ◽  
The Other ◽  
Written Text ◽  
Theoretical Structure ◽  
Frequent Use ◽  
The Will ◽  
The Law ◽  
Theory Of Law ◽  
The One ◽  
The Right

Every agreement of the wills among two or more persons who make mutual law relation or changes or calls of the existing law relation is named as a contrast in the theory of law. According its characteristics, the law relations may be different - obligatorious, familliarious, hereditorious, administrativ, merchanditorious etc., because of what the contracts as instruments of law regulations of that relationships are published in different law branches, like: familly law, heretige law, administrative law, merchandise law etc. Regarding its theoretical structure and frequent use and meaning in the law practice, the obligatory contracts are separated - those which may make obligatory relationships.The obligatory relationships are law connection among two or more parties from which one of them has the right to ask for, and the other is obligated to give the asked or to do, or not to do, or to bear it. The essence of the obligatory relation is in the right of the creditor to ak from the debtor to fulfille his obligation, which means - basicly - they are in creditor - debtor's relationships. Therefore, the obligatory contracts are double law acts according to which, in the agreement of the wills between two parties, the one part obeys to give something, to do or not to do something, or to bear something in the benefit of the other part, the part which takes that obligation as its right.The agreement of the wills of the contractual parties is one of the four common conditions of the genezes of a contract. It is realized by equality of the different whishes and different aims which the parties like to reach by making an agreement. There are the questions which I am trying to answer in my written text: about law relevant will, the atributes which the will should possesse, the ways of giving the will and, at the end, coordinating the wills of the two parts which goes to make the contact. The coordinating of the wills should be done on a legalized or usual way, frequently or usually by giving an offer from the first part and reaching the offer from the other one. That is the most usual mode of implementation the reunification of the wills between the contractual parts.

scholarly journals Application of law vs «improvement of legislation» (some considerations on current legal practice)

2021 ◽  
pp. 52-62
Author(s):  
Andriy Drishliuk ◽  
Yurii Orzikh
Keyword(s):  
Legal Practice ◽  
Application Of Law ◽  
Permanent Improvement ◽  
The Subject ◽  
The Law ◽  
Rights And Interests ◽  
The One ◽  
Improvement Of Legislation ◽  
Legal Consequences ◽  
Direct Infringement

Relevant problems of the practice of application of law and permanent process of improvement of the Ukrainian legislation are examined in this article. In particular authors stress on contradiction between process of the permanent improvement of the legislation and sustainability, predictability and legal certainty as principles of legal system. On the one hand, constant reforming of the legislation of Ukraine does not give possibility for subjects of law to create stable legal relations, which are regulated in a predictable way. On the other hand, legislation of Ukraine must be actual and even few “step ahead” the actual situation in Ukraine. It must give necessary methods, tools and legal instruments, which regulate relations between subjects of law. Described judicial and notarial practical cases show in what way flexibility of the legislation could be provided in conditions of the ongoing changes. Authors consider that qualified and high-quality application of the current legislation by the subjects of application of law gives possibility to provide flexibility of the legislation. Such application of law is done by subjects applying the law, although their actions are not directly provided for by the legislation, but they are not prohibited either. Essential principle of such application of law must be the whole tendency to create those legal consequences of the application of law which will not lead to the direct infringement of somebodies rights and interests within the process of application of law. Illustrated lawsuit and case of notarial practice show how exactly interpretative mechanism and analogy as a tool of the subject applying the law help to avoid infringements of rights and interests of heirs of the deceased person. Keywords: application of law, improvement of the legislation, notary, judge, court and notarial practice.

scholarly journals PRINCIPLE, PRACTICE, AND PRECEDENT: VINDICATING JUSTICE, ACCORDING TO LAW

2018 ◽  
Vol 77 (2) ◽  
pp. 269-297 ◽  
Author(s):  
T.R.S. Allan
Keyword(s):  
Moral Judgment ◽  
Legal Theory ◽  
Common Law ◽  
Legal Practice ◽  
Moral Obligations ◽  
Moral Ideals ◽  
Legal Obligations ◽  
The Law

AbstractLegal judgment, I argue, entails moral judgment; legal obligations, correctly identified, are genuine moral obligations. Dworkin's legal theory is instructive, but problematic: his account of integrity fails to provide a convincing reconciliation of practice and principle. We can, however, defend a superior account in which the moral ideals that we invoke to justify legal practice – affirming its legitimacy under certain conditions – retain their force throughout our judgments about its specific demands in particular cases. Common law reasoning exemplifies that approach, reflecting the interdependence of practice and principle. It is an internal, interpretative inquiry, drawing on the moral resources of our own tradition, treated as an influential guide to the requirements of justice. The law is constituted, accordingly, neither by its socially authoritative sources, whatever their merits, nor by the moraleffectsof our legal practice. It is rather the scheme of justice we construct in our continuing efforts to bring our practice closer to the ideals that inspire and redeem it.

Sign in / Sign up

Export Citation Format

Share Document