Relationships Between Law and Morality

2019 ◽  
pp. 5-28
Author(s):  
Kenneth Einar Himma
Keyword(s):  
Legal System ◽  
Conceptual Truth ◽  
Legal Validity ◽  
Law And Morality

This chapter distinguishes three types of inquiry about law. It articulates the two conceptual views about morality and the nature of law that comprise the focus of this volume. First, the chapter explains positivist and anti-positivist views with respect to whether it is a conceptual truth that the criteria of legal validity include moral constraints on the content of law. It then turns to the dispute between inclusive and exclusive positivists with respect to whether it is conceptually possible for a legal system to have content-based moral criteria of validity. Finally, this chapter argues that the claim that conceptual jurisprudence should not be done is either unclear or false.

Morality and the Nature of Law

2019 ◽  
Author(s):  
Kenneth Einar Himma
Keyword(s):  
Legal System ◽  
Thought Experiment ◽  
The United States ◽  
Necessary Condition ◽  
Moral Norms ◽  
Legal Validity ◽  
Law And Morality ◽  
Conceptual Relationships ◽  
Conceptual Relationship ◽  
Conceptual Possibility

This book is concerned with explicating the conceptual relationships between law and morality. In particular, it explores the conceptual relationship between morality and the criteria that determine what counts as law in a given society (i.e. the criteria of legal validity). Is it a necessary condition for the existence of a legal system that it includes moral criteria of legal validity? Is it even possible for a legal system to have moral criteria of legal validity? The book considers the views of natural law theorists ranging from Blackstone to Dworkin and rejects them, arguing that it is not conceptually necessary that the criteria of legal validity include moral norms. Further, it rejects the exclusive positivist view, arguing instead that it is conceptually possible for the criteria of validity to include moral norms. In the process of considering such questions, this book considers Joseph Raz’s views concerning the nature of authority and Scott Shapiro’s views about the guidance function of law, which have been thought to repudiate the conceptual possibility of moral criteria of legal validity. The book, then, articulates a thought experiment that shows that it is possible for a legal system to have such criteria and concludes with a chapter that argues that any legal system, like that of the United States, which affords final authority over the content of the law to judges who are fallible with respect to the requirements of morality is a legal system with purely source-based criteria of validity.

The Conceptual Possibility of Moral Criteria of Legal Validity

2019 ◽  
pp. 197-224
Author(s):  
Kenneth Einar Himma
Keyword(s):  
Legal System ◽  
Moral Norms ◽  
Possible World ◽  
Legal Validity ◽  
Normative System ◽  
Positive Argument ◽  
Conceptual Possibility

This chapter gives a positive argument for the claim that the criteria of validity can incorporate moral constraints on the content of law. It thus concludes the defense of the Incorporation Thesis undertaken in the last two chapters. The argument in question constructs a model of an institutional normative system that validates all and only mandatory moral norms in a possible world. The chapter argues that we must do two things to show the conceptual possibility of a legal system with moral criteria of validity. First, we must produce a model of an institutional normative system in a world resembling this one that can plausibly be interpreted as having moral criteria of validity that clearly satisfies every condition plausibly thought to be necessary for the existence of law. Second, to ensure that the model establishes the Incorporation Thesis, it should be incompatible with an exclusivist interpretation.

All We Like Sheep

1999 ◽  
Vol 12 (1) ◽  
pp. 169-188 ◽  
Author(s):  
Jeremy Waldron
Keyword(s):  
Legal System ◽  
Extreme Case ◽  
Legal Positivism ◽  
Legal Validity ◽  
Slaughter House ◽  
Necessary Truth ◽  
Central Case ◽  
Adequate Definition ◽  
Definition Of ◽  
Moral Demand

In an extreme case, … only officials might accept and use the system’s criteria of legal validity. The society in which this was so might be deplorably sheeplike; and the sheep might end in the slaughter-house. But there is little reason for thinking that it could not exist or for denying it the title of a legal system.The essence of legal positivism, wrote H.L.A. Hart, is a very simple contention: “[I]t is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality” (185-86).It is tempting to treat this claim—which some have called “the separability thesis”—as a definitional truth about law, i.e., as a constraint on any adequate definition of the term “law.” On this understanding, the positivist maintains that one should not define “law" in a way that excludes some norms from the extension of this term simply because they do not reproduce or satisfy a particular moral demand. Similarly, on this understanding, one should not exclude a system of norms, S, from the extension of the term “legal system” on account of S’s failure to satisfy the demands of justice. Indeed, positivism entails not only that one should not exclude S on this ground, but also that the injustice of S is not even a reason for regarding S as a problematic or marginal or less-than-central case of “law.” The positivist holds that it is a mistake to build moral conditions into the definition of “law” in any way whatsoever.

scholarly journals ON THE INFLUENCE OF LAW ON MORALITY

2020 ◽  
pp. 46-49
Author(s):  
K.A. Sinkin ◽  
D.A. Emelyanova
Keyword(s):  
Legal System ◽  
Negative Trend ◽  
The Other ◽  
Legal Rules ◽  
Immoral Behavior ◽  
Other Hand ◽  
Law And Morality ◽  
The One

The article is devoted to the problem of the interaction between law and morality and especially whenlaw influences on morality. The influence of law on morality has two opposite sides. On the one hand, lawdefenses morality but on the other hand, law alters morality. The author of the article marks that suchalteration has negative trend according to which law approves immoral behavior as conformist or marginal.On the basis of analysis of certain legal rules and historical examples the author shows different possibilitiesof the interaction between law and morality and especially the influence of law on morality. There is aconclusion in the article according to which it is highly important to form legal system of Russia based onmorality.

Kant’s Non-Positivistic Concept of Law

2019 ◽  
Vol 24 (4) ◽  
pp. 497-512
Author(s):  
Robert Alexy
Keyword(s):  
Legal Philosophy ◽  
Legal Validity ◽  
The Third ◽  
Main Thesis ◽  
Social Efficacy ◽  
Law And Morality ◽  
Theory Of Law ◽  
Point Of Departure ◽  
Concept Of Law

AbstractThe main thesis of this article is that Kant’s concept of law is a non-positivistic one, notwithstanding the fact that his legal philosophy includes very strong positivistic elements. My argument takes as its point of departure the distinction of three elements, around which the debate between positivism and non-positivism turns: first, authoritative issuance, second, social efficacy, and, third, moral correctness. All positivistic theories are confined to the first two elements. As soon as a necessary connection between these first two elements and the third element, moral correctness, is established, the picture changes fundamentally. Positivism becomes non-positivism. There exist two kinds of connections between law and morality: classifying and qualifying connections. This distinction stems from different sorts of effects that moral defects give rise to. A classifying connection leads to the loss of legal validity, whereas a qualifying connection leads only to legal defectiveness. In Kant’s theory of law both connections are found. The qualifying connection is conspicuous throughout Kant’s theory of law, whereas the classifying connection, by contrast, is rare and well hidden. This will suffice to consider Kant as a representative of inclusive non-positivism.

The Separation Thesis and the Limits of Interpretation

1999 ◽  
Vol 12 (1) ◽  
pp. 135-150 ◽  
Author(s):  
Andrei Marmor
Keyword(s):  
Legal System ◽  
Legal Reasoning ◽  
Close Relation ◽  
Legal Positivism ◽  
The Other ◽  
Legal Validity ◽  
Other Hand ◽  
Separation Thesis ◽  
The Law

There are many versions of legal positivism; perhaps as many as there are legal positivists around. All the versions of legal positivism, however, subscribe to the so-called Separation Thesis. This thesis basically maintains that detenriining what the law is, does not necessarily, or conceptually, depend on moral or other evaluative considerations about what it ought to be in the relevant circumstances. Legal positivists differ, however, and quite substantially, over the appropriate interpretation of this thesis. The so-called ‘strong’, or ‘exclusive’ version of legal positivism maintains that moral considerations never determine the legal validity of norms. ‘Soft’ positivists, on the other hand, do maintain that there is a close relation between legal validity and morality, but they hold that this relation is, at best, a contingent matter; it does not derive from the nature of law or legal reasoning as such. Soft-positivists claim that moral considerations determine legal validity only in certain cases, namely, in those cases which follow from the rules of recognition that happen to prevail in a given legal system.

scholarly journals In search of moral foundations of law: debate on nature of inclusive legal positivism

2021 ◽  
Vol 6 (4) ◽  
pp. 119-123
Author(s):  
A. B. Didikin ◽  
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
Applied Ethics ◽  
Legal Positivism ◽  
Moral Foundations ◽  
Judicial Practice ◽  
Theoretical Approaches ◽  
Law And Morality ◽  
Necessary And Sufficient ◽  
The Relationship

The paper is devoted to the analysis of the arguments of foreign jurists about the nature and advantages of inclusive legal positivism as a legal theory that justifies the existence of moral foundations of the legal system. Examples from judicial practice are considered, as well as key theoretical approaches that reveal the necessary and sufficient features of inclusive legal positivism, as well as its subject specifics and basic provisions on the relationship between law and morality. The paper is prepared within the framework of the HSE research project «Applied Ethics».

Sources of Law

2021 ◽  
pp. 58-92
Author(s):  
Giorgio Pino
Keyword(s):  
Legal System ◽  
Legal Positivism ◽  
Legal Philosophy ◽  
Legal Change ◽  
Legal Validity ◽  
Positive Law

Oddly enough, very scant reference—if any—is made to the sources of law as a genuinely jurisprudential topic in contemporary legal philosophy. Yet, the jurisprudential import of the concept of ‘sources of law’ seems substantial: sources of law are what makes of something ‘a law’—a law is what is produced by, or derives from, a source of law. Sources epitomize the very ‘positivity’ of positive law, an aspect of law which is central to legal positivism of course, but whose importance not even a natural lawyer or an anti-positivist would ever deny. This essay highlights several jurisprudential questions that surround the sources of law, and tries to show they relate to–and contribute to illuminate–many long-debated jurisprudential topics such as the concept of legal validity, the notion and the conditions of existence of a legal system, the problem of legal change, and the scope of legal disagreements.

Law’s Claim of Legitimate Authority

2019 ◽  
pp. 121-148
Author(s):  
Kenneth Einar Himma
Keyword(s):  
Legitimate Authority ◽  
Conceptual Truth ◽  
Law And Morality ◽  
Conceptual Relationships ◽  
Normative Content

This chapter determines whether the Authority Thesis is true. The Authority Thesis is based on the idea of a conceptual truth that law claims legitimate authority and hence that it is a conceptual truth that law is capable of being legitimate. This is the foundation of the Incorporation Thesis. Insofar as the notion of legitimate authority is a concept with morally normative content, it is important to understand whether it is part of law’s nature that it claims legitimate authority. To this end, the chapter attempts to determine whether the arguments against the Incorporation Thesis succeed, as well as to facilitate a deeper understanding of the conceptual relationships between law and morality.

scholarly journals Legal information as a theoretical and legal phenomenon: essence and types of legal information

2021 ◽  
Vol 9 (2) ◽  
pp. 31-35
Author(s):  
Nikolay Kovshov ◽  
Alina Zaharova
Keyword(s):  
Legal System ◽  
Direct Impact ◽  
Legal Systems ◽  
Legal Information ◽  
Legal Validity ◽  
Points Of View ◽  
Definition Of

Legal information has a direct impact on the development of the legal system. With the acquisition of legal information of such quality as public accessibility, it has greatly contributed to the improvement of the legal system, as it allows for the analysis of legal validity from various points of view, contributing to the change of existing problem zones, as well as determining the prospects for the development of legal systems. However, despite its significance, in modern conditions there is no uniformity in the definition of the concept of legal information, as well as the main features of legal information.

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