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.

Moral and Legal Obligations to Support ‘Family’

2018 ◽  
Author(s):  
Diane Jeske
Keyword(s):  
Intimate Relationships ◽  
Spousal Support ◽  
State Regulation ◽  
The State ◽  
Legal Institutions ◽  
Moral Obligations ◽  
Familial Relationships ◽  
Legal Obligations ◽  
Support Family

We have various kinds of moral obligations to take care of those to whom we stand in intimate relationships, and, for many of us, some of those whom we consider family are among our most important intimates. These moral obligations have various grounds; some are unique to intimate relationships while others also occur in non-intimate relationships. Given the centrality of intimate relationships and their attendant moral obligations to our lives, we need to consider what role, if any, political and legal institutions ought to play in protecting, enforcing, and/or regulating intimacy, whether familial or not. I consider various approaches that the state might take to intimate familial relationships and their possible justifications. I then consider state regulation of spousal support after the dissolution of a marriage to see what approach the state seems to take and whether this has implications for how it ought to proceed in other cases.

scholarly journals THE OBLIGATION TO OBEY THE LAW IN THE LIGHT OF THE DEBATE BETWEEN FINNIS AND RAZ

2021 ◽  
Vol 48 (152) ◽  
pp. 725
Author(s):  
Andrea Luisa Bucchile Faggion
Keyword(s):  
Political Philosophy ◽  
Moral Obligation ◽  
Prima Facie ◽  
Moral Obligations ◽  
Social Facts ◽  
Recent Debate ◽  
Joseph Raz ◽  
The Law ◽  
John Finnis

The recent debate between John Finnis and Joseph Raz on the existence of a general prima facie moral obligation to obey positive laws is a major contribution to a classical topic in legal and political philosophy. In this paper, I argue that Raz’s normal justification thesis and Finnis’s doctrine of “determinatio,” inherited from Aquinas, complement each other, shedding light on how norms grounded in social facts can give rise to particular moral obligations independently of their content. However, I argue that this on its own does not explain the possibility of a general moral obligation to obey the law, that is, the notion that everyone has a prima facie moral obligation to obey every law that applies to them.

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.

On the Artifactual—and Natural— Character of Legal Institutions

2018 ◽  
Author(s):  
Corrado Roversi
Keyword(s):  
Natural Law ◽  
Common Ground ◽  
Legal Positivism ◽  
Legal Institutions ◽  
Human Beings ◽  
Legal Realism ◽  
Natural Law Theory ◽  
The Law ◽  
Theory Of Law

Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law makes a stronger claim, namely, that there is actually an explanatory gain to be had by investigating legal institutions as artifacts, or through the features of ordinary artifacts. This is the proposition explored in this chapter: that while this understanding of legal institutions makes it possible to find common ground between legal positivism and legal realism, it does not capture all of the insights offered by these two traditions. An artifact theory of law can therefore be necessary in explaining the law, but it will not suffice to that end. This chapter also posits that legal artifacts bear a relevant connection to certain conceptions of nature, thus vindicating one of the original insights behind natural law theory.

MORAL OBLIGATION AFTER THE DEATH OF GOD: CRITICAL REFLECTIONS ON CONCERNS FROM IMMANUEL KANT, G. W. F. HEGEL, AND ELIZABETH ANSCOMBE

2010 ◽  
Vol 27 (2) ◽  
pp. 317-340 ◽  
Author(s):  
H. Tristram Engelhardt
Keyword(s):  
Immanuel Kant ◽  
Moral Obligation ◽  
Historical Context ◽  
Important Change ◽  
Moral Pluralism ◽  
Moral Obligations ◽  
European Continent ◽  
Presence Of God ◽  
Thing In Itself ◽  
The Status

AbstractOnce God is no longer recognized as the ground and the enforcer of morality, the character and force of morality undergoes a significant change, a point made by G.E.M. Anscombe in her observation that without God the significance of morality is changed, as the word criminal would be changed if there were no criminal law and criminal courts. There is no longer in principle a God's-eye perspective from which one can envisage setting moral pluralism aside. In addition, it becomes impossible to show that morality should always trump concerns of prudence, concerns for one's own non-moral interests and the interests of those to whom one is close. Immanuel Kant's attempt to maintain the unity of morality and the force of moral obligation by invoking the idea of God and the postulates of pure practical reason (i.e., God and immortality) are explored and assessed. Hegel's reconstruction of the status of moral obligation is also examined, given his attempt to eschew Kant's thing-in-itself, as well as Kant's at least possible transcendent God. Severed from any metaphysical anchor, morality gains a contingent content from socio-historical context and its enforcement from the state. Hegel's disengagement from a transcendent God marks a watershed in the place of God in philosophical reflections regarding the status of moral obligations on the European continent. Anscombe is vindicated. Absent the presence of God, there is an important change in the force of moral obligation.

GOALS, LUCK, AND MORAL OBLIGATION

2010 ◽  
Vol 27 (2) ◽  
pp. 297-316
Author(s):  
R. G. Frey
Keyword(s):  
Moral Obligation ◽  
Moral Luck ◽  
Moral Experience ◽  
Bernard Williams ◽  
Moral Obligations

AbstractIn Ethics and the Limits of Philosophy, Bernard Williams is rather severe on what he thinks of as an ethics of obligation. He has in mind by this Kant and W. D. Ross. For many, obligation seems the very core of ethics and the moral realm, and lives more generally are seen through the prism of this notion. This, according to Williams, flattens out our lives and moral experience and fails to take into account things which are obviously important to our lives. Once we take these things into account, what do we do if they come into conflict with some of our moral obligations, as Williams, in his earlier writings on moral luck, thought to be the case. I want here to explore some of these ideas, in a way that I think harmonious with Williams's general bent though not one that I intend as in any way detailed exegesis of Williams's work.

LEGAL OBLIGATION IN THE LEGAL STATUS STRUCTURE OF A PERSON SENTENCED TO IMPRISONMENT AND ITS STRUCTURE

2021 ◽  
pp. 29-33
Author(s):  
Андрей Владимирович Кулаков ◽  
Ольга Рениславовна Родионова
Keyword(s):  
Public Relations ◽  
Legal Status ◽  
Legal Responsibility ◽  
Legal Obligation ◽  
Russian Science ◽  
Legal Obligations ◽  
Long Time ◽  
Legitimate Interests ◽  
Points Of View ◽  
Theory Of Law

Общей теорией права и отраслевыми науками достаточно давно исследуется структура правового статуса личности и место в данной структуре юридической обязанности. Доктринально обоснованной является позиция ученых, согласно которой структуру правового статуса личности, в том числе и осужденного к лишению свободы, составляют права, свободы и обязанности лица, закрепленные в нормативно-правовых актах. Несмотря на это, в отечественной науке время от времени появляются мнения ученых-правоведов, которые наряду с системой прав и обязанностей включают в состав правового статуса такие правовые явления, как «законные интересы», «гарантии прав», «юридическая ответственность» и т. д. Кроме того, подвергается сомнению и устоявшееся положение о структуре юридической обязанности как элементе правового статуса. Проведенный авторами анализ уголовно-исполнительных отношений дает основание утверждать, что, несмотря на особое правовое положение осужденных к лишению свободы, структура их правового статуса не изменяется, а юридические обязанности являются неотъемлемым ее элементом. При этом юридическая обязанность осужденного к лишению свободы, как и любого другого участника правовых отношений, всегда корреспондирует субъективному праву и состоит из четырех элементов: - необходимость совершения осужденным определенных (требуемых, должных) действий, предписанных нормативно-правовыми актами; - необходимость отреагировать на законные требования управомоченного лица; - необходимость (обязанность) претерпеть меры государственного принуждения в случае нарушения нормативно-правовых предписаний; - необходимость (обязанность) не мешать контрагенту пользоваться и/или реализовывать законное право. Только при таком подходе к юридической обязанности как элементу правового статуса осужденного ее можно считать не только средством установление границ дозволенного поведения, но и действенным регулятором общественных отношений. The legal status structure of an individual and the place of the legal obligation in it have been studied for a long time by the general theory of law and branch sciences. Doctrinally justified is the opinion of scientists, according to which the structure of the legal status of an individual including a person sentenced to imprisonment, consists of the rights, freedoms and duties of a person enshrined in normative legal acts. Despite this in Russian science from time to time there are points of view of legal scientists which along with the system of rights and obligations, include the legal status of such legal phenomena as «legitimate interests», «guarantees of rights», «legal responsibility», etc. In addition the well-established position on the legal obligation structure as an element of the legal status is also questioned. The author's analysis of penal relations gives grounds to assert that despite the special legal status of those sentenced to imprisonment the structure of their legal status does not change and legal obligations are an integral part of it. At the same time the legal obligation of a convicted person as well as any other participant in legal relations always corresponds to subjective law and consists of four elements: - the need for the convicted person to perform certain (required, due) actions prescribed by regulatory legal acts; - the need to respond to the legal requirements of the authorized person; - the need (obligation) to undergo measures of state coercion in case of violation of legal regulations; - the need (obligation) not to prevent the counterparty from using and / or exercising the legal right. Only with this approach to the legal obligation as an element of the legal status of the convicted person, it can be considered not only a means of establishing the boundaries of permissible behavior, but also an effective regulator of public relations.

Discretionary Moral Duties

2019 ◽  
pp. 50-72
Author(s):  
R. Jay Wallace
Keyword(s):  
Moral Obligation ◽  
General Framework ◽  
Mutual Aid ◽  
Moral Obligations ◽  
Moral Duties

The topic of Chapter 3 is the idea that there are discretionary moral duties, i.e., duties that cede to the agent who stands under them wide latitude in determining the actions that count as satisfying them. The chapter offers a general framework for thinking about moral obligations, which construes such obligations in essentially relational terms. It then draws on this conception of moral obligation to understand two classes of obligations that are intuitively understood to exhibit wide agential discretion: duties of gratitude and of mutual aid. It argues that the wide agential discretion apparent in these cases makes sense against the background of an understanding of morality as a set of directed obligations that we owe to each other, as individuals. A further important theme is the standing of morality as a source of requirements that make it possible for agents to relate to each other on a basis of autonomy and equality.

The Obligation Dilemma

2019 ◽  
Author(s):  
Ishtiyaque Haji
Keyword(s):  
Interpersonal Relationships ◽  
Moral Obligation ◽  
Prima Facie ◽  
Moral Obligations ◽  
Philosophical Work ◽  
Skeptical Conclusion

This book argues for the prima facie plausibility of the surprising and paradoxical conclusion that there are no moral obligations regardless of whether determinism is true. In the form of a dilemma, the primary argument for this skeptical conclusion presupposes that obligation requires freedom. A minimal number of credible principles entail that this is the freedom both to do, and to refrain from doing, what is obligatory. On the deterministic horn of the dilemma, since determinism eliminates freedom to do otherwise, it imperils moral obligation. On the indeterministic horn, pertinent actions are too luck-infected to qualify as obligations. Hence, there are no moral obligations. The book’s principal goal is to develop the obligation dilemma as powerfully and clearly as possible to inspire sustained philosophical work to solve it (assuming that it can be solved). In many respects, the obligation dilemma mirrors the venerable responsibility dilemma: regardless of whether determinism is true, no one is morally responsible for anything. The book shows that various prevalent moves in favor of, or in response to, the responsibility dilemma are, when suitably amended, not promising as supportive of, or retorts to, the obligation dilemma. Exposing the obligation dilemma’s implications for responsibility, and its ramifications for forgiveness (something central to salutary interpersonal relationships), underscores its urgency.

“BUT IT WOULD BE WRONG”

2010 ◽  
Vol 27 (2) ◽  
pp. 135-157 ◽  
Author(s):  
Stephen Darwall
Keyword(s):  
Moral Obligation ◽  
Reactive Attitudes ◽  
Moral Obligations ◽  
Normative Concepts ◽  
Buck Passing ◽  
Reason For Action

AbstractIs the fact that an action would be wrong itself a reason not to perform it? Warranted attitude accounts of value suggest “buck-passing” about value, that being valuable is not itself a reason but “passes the buck” to the reasons for valuing something in which its value consists. Would a warranted attitude account of moral obligation and wrongness, not entail, therefore, that being morally obligatory or wrong gives no reason for action itself? I argue that this is not true. Although warranted attitude theories of normative concepts entail buck-passing with respect to reasons for the specific attitudes that are inherently involved in the concept, the concepts of moral obligation and wrong are normative not in the first instance for action, but for a distinctive set of attitudes (Strawsonian “reactive attitudes”) through which we hold ourselves and one another answerable for our actions. On this analysis, moral obligations are demands we legitimately make as representative persons, and the fact that an act would violate such a demand, and so disrespect the authority these demands presuppose, is indeed a reason not to perform the wrongful act that is additional to whatever features make the act wrong.

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