scholarly journals Law’s Autonomy and Moral Reason

Laws ◽  
2019 ◽  
Vol 8 (1) ◽  
pp. 6
Author(s):  
Jack Clayton Thompson
Keyword(s):  
Practical Reason ◽  
Practical Reasoning ◽  
Moral Values ◽  
Moral Truth ◽  
Moral Reason ◽  
Moral Principles ◽  
Legal Positivist ◽  
Law And Morality ◽  
The Law ◽  
The Concept Of Law

This paper intends to set out an argument to Legal Idealism and a thesis that holds law and morality as necessarily connected. My focus is on deconstructing the Positivist argument to the Autonomy Thesis and beginning to reconstruct it through the application of morality to law’s autonomous authority. My aim, ultimately, is to demonstrate how, through the concept of law, practical reason might explain the related (and overlapping) notions of legitimacy, authority, and the obligation to obey through the necessary connection of law and morality. That is, I intend to demonstrate that morality both survives and remains identifiable (transparently) following the process of metamorphosis into institutionalised practical reasoning. If this is so, the authority of and obligation to law is simultaneously a form of morally rational obligation. In the response to the Positivist argument that moral values are incommensurate, I will show that this commensurability can be determined ‘artificially’ by a system of institutionalised reasoning (i.e., the law); this is to say, if I can show that the Legal Positivist argument is left incomplete without some explanation of moral values underpinning it, I need not to show that a specific, defensible moral truth or principle is required, but that an artificial weighting of abstract moral principles is sufficient

THE POSITION OF MORAL VALUES IN LAW

2021 ◽  
Vol 6 (1) ◽  
pp. 51-61
Author(s):  
Dian Latifiani ◽  
Raden Muhammad Arvy Ilyasa
Keyword(s):  
Natural Law ◽  
Moral Values ◽  
Legal Positivism ◽  
Moral Principles ◽  
Legal Science ◽  
Natural Law Theory ◽  
Law And Morality ◽  
The Law

Moral values in legal science are important. However, the flow of law sees a variety of moral values. This paper aims to see the position of moral values in the science of law. Legal positivism separates strictly between law and morals. According to him, there is no law other than the command of the authorities. Even extreme identifying the law (Recht) as the law (wet). Legal positivism activities are aimed at concrete problems, which are different when compared to natural law thinking which engages itself with the validation of man-made law. For adherents of natural law theory, an unjust law is not law. there is an absolute relationship between law and morality. the two cannot be separated, so the law must refer to moral principles.

Law as Practical Reason

1989 ◽  
Vol 48 (3) ◽  
pp. 436-471 ◽  
Author(s):  
M. J. Detmold
Keyword(s):  
Practical Reason ◽  
Practical Reasoning ◽  
Legal Reasoning ◽  
The State ◽  
Strong Sense ◽  
A Priority ◽  
The Law ◽  
John Finnis ◽  
Vast Range

Law is practical. Legal reasoning is practical reasoning. We could make nothing of a judge who having listened to counsel's arguments and reflected about the law governing his case thought that the state of knowledge that he had achieved was the natural termination of his enterprise and submitted his conclusions to the editors of Halsbury's Laws of England rather than performed the action of giving judgment. The parties would be outraged, and rightly. And if the judge continued to do such a thing he would be dismissed. Legal reasoning is practical in the sense that its natural conclusion is an action (in the judge's case the action of giving judgment) rather than a state of knowledge. This is taking “practical” in a strong sense. By this definition thought is practical whose natural conclusion is an action (or decision against action): its strongest contrast is with theoretical thought whose natural conclusion is knowledge. But it also contrasts with hypothetical thought about action (say, my thinking it would be good to play cricket again). I do not call this practical because it does not conclude in an action or decision against action (others do; for example John Finnis in Fundamentals of Ethics; my reasons for differing in this matter will emerge). A judge's practical reasoning towards the action of giving judgment has priority for our understanding of law over that vast range of practically idle things that lawyers do, from the construction of digests like Halsbury to casual reflection about the rule in Shelley's case (of course there is one sort of doing involved in both these, but not legal doing). It is important here to be clear about this priority. It is a priority of practicality, not a priority of judges or lawyers.

Legal Teleology

2019 ◽  
pp. 45-64 ◽  
Author(s):  
David Copp
Keyword(s):  
Natural Law ◽  
Social Practice ◽  
Legal Positivism ◽  
Moral Principles ◽  
Natural Law Theory ◽  
Law And Morality ◽  
The Law

Legal Teleology seeks to embrace and to ground the most plausible tenets of both legal positivism and natural law theory. It is compatible with the positivist view that law consists at root in a social practice of a certain kind. Yet it also can accommodate at least some claims about the relation between law and morality that are advocated by opponents of positivism. Most important, it argues that law is “robustly normative”—roughly, law is a source of genuine reasons. Standard forms of positivism cannot account for this thesis, but, arguably, the central doctrines of positivism are compatible with it. Legal Teleology is an account of the normativity of law that is supported by “pluralist-teleology,” a naturalist account of normativity that has been proposed elsewhere (Copp 2009). Legal Teleology sees the law as having a purpose, and it says that law is defective insofar as it does not further that purpose. It agrees that jurists can sometimes help law better to serve its purpose when they invoke moral principles in interpreting law. Legal Teleology represents a kind of intermarriage between legal positivism and natural law theory.

Positively Fabulous: Why It Is Good To Be a Legal Positivist

1997 ◽  
Vol 10 (2) ◽  
pp. 231-248
Author(s):  
James Allan
Keyword(s):  
Legal System ◽  
Natural Law ◽  
Moral Values ◽  
Legal Positivism ◽  
Legal Philosophy ◽  
Critical Legal Studies ◽  
Classic Work ◽  
Legal Studies ◽  
Legal Positivist ◽  
The Concept Of Law

‘Legal Positivism’ is a much abused term. It is often pejoratively invoked by those occupying both the natural law and critical legal studies ramparts. The former see it as a school of thought which ignores the role in law of those standards and values which have not been deliberately laid down or unintentionally evolved. Positivism, for them, fails because it is prepared to describe a legal world where moral values play no necessary part and where transcendent values may not exist at all. The latter group of critics, not too dissimilarly, see legal positivism’s doctrines as over-reliant on rules and too inclined to accept that a legal system somehow can generate a logically mandated code of answers.In order to defend positivism it is advisable to start with an enunciation of its core precepts. With all that has been written attacking and supporting positivism though, this can be a contentious matter. So instead I shall defend one particular version of positivism, that of H.L.A. Hart. As Hart’s The Concept of Law, first published in 1961, is at worst one of the handful of great legal philosophy texts written in English this century and at best “the classic work of philosophical jurisprudence”, this preference for concentrating on the tangible and identifiable precepts of Hart over the woolly, elusive and frequently caricatured precepts of something disparagingly termed positivism has much to recommend it.

scholarly journals The Ontological Basis and Justification of Law

2020 ◽  
Vol 4 (1) ◽  
pp. 151
Author(s):  
Michael M Uzomah
Keyword(s):  
Legal Positivism ◽  
True Nature ◽  
Legal Norms ◽  
Rational Nature ◽  
Law Of Nature ◽  
Binding Force ◽  
Legal Positivist ◽  
Per Se ◽  
The Law ◽  
The Concept Of Law

This paper responds to the linchpin and central problem of jurisprudence in all its variants (legal schools) which is the task of establishing the meaning, nature and validity of law. The notion of validity and obligation is not only crucial to the concept of law, but also essentially inalienable. In the naturalist perception of law as well as in the positivist explication of law, the notion of validity is given fundamental attention. However, the point of disagreement or conflict, between legal naturalism and legal positivism (which are the two most outstanding and contending legal thoughts) revolves around the question: Where exactly does or from where does the law acquire its obligatory or binding or legal force? Differently put, in what does the validity of the law subsists? What invests a legal stamp or seal on a piece of legislation? Or what confers legality on legal norms that justifies and commands their obedience? While the naturalist appeal to some extra-legal, moral and metaphysical elements as the foundation of the binding force and validity of law (the oughts), the legal positivist took a formal and empirical approach to the explanation of the obligation and validity of law (law as it is, without recourse to metaphysical or moral oughts, is valid and commands unconditional obedience). Consequently, as an attempt towards establishing the ontological nature and justification of law, this paper defends the naturalist jurisprudence. The paper argues that to properly configure the true nature of positive laws otherwise called the jurisprudential laws in relation to law per se, the philosopher transcend the formalistic and materialistic study of law (empirical and descriptive) to the transcendental (prescriptive) examination of law not just in its ontological descriptive dimension, but most essentially in relation to its normative or prescriptive form. In lieu, the paper further argue that consequent upon the prescriptive nature of the law of nature, and the concomitant rational nature of man, positive laws cannot but inexorably be morally biased. The methods adopted by the research include the expository analytic and prescriptive methods.

scholarly journals Emancipatory Of Legal Transendency In Indonesia: Study Of Moral Aspects In The Making Of Laws And Regulations In Indonesia

2019 ◽  
Vol 1 (2) ◽  
pp. 124-146
Author(s):  
Triwahyuningsih Triwahyuningsih
Keyword(s):  
Human Life ◽  
Moral Values ◽  
Legal Positivism ◽  
Philosophical Approach ◽  
Moral Principles ◽  
Positive Law ◽  
The Law ◽  
The Relationship ◽  
Laws And Regulations ◽  
John Austin

ABSTRACT Objectives: This paper aims to answer the question of how the relationship between law and moralism, as well as how to internalize moral principles in making laws and regulations in Indonesia. Methodology: This study used a philosophical approach that aimed to explore the relationship between law and morals from the perspective of John Austin, Kelsen, and H. L. A Hart. It also used the transcendental perspectives in exploring the importance of internalizing moral principles in making laws and regulations in Indonesia. The research method in the article used descriptive normative research methods, with interpretative data processing techniques regarding the importance of moral aspects in making laws and regulations in Indonesia. Findings: The dominance of the philosophy of positivism has broad implications. The closure of the law to morality raised by adherents of legalism, legal positivism, or reinerechtslehre does not only raise injustice everywhere but also appear with a face of totalitarian or repressive law. Law and moral relations, according to John Austin (1790-1859), are diametrically separated and tend to favor the law (the law negates morals), while Hans Kelsen and Austin place religious and moral inferiority while favoring positive law. According to Kelsen, the law deals with the form (formal), not the content (material); then, Hart tries to offer the principle of morality as a minimum legal requirement in which the pattern of the relationship is cooperative or independent dialogue. Whereas in the transcendent perspective, law and morals are in a dialogue-integrative relationship. The legislators should have spiritual intelligence; that is, they do not want to be bound and limited by existing standards but want to go beyond and transcend the existing situations (transcendental).  With spirituality, the legislators, who are in accordance with the principle, can produce laws that show the emancipatory of legal transcendency. The laws do not only humanize humans but are also oriented to moral values that originate from God. Benefit: The benefit of this paper is to be the basis for guarding moral values in making the Law, starting from the preparation and initiative for the submission of the draft law, discussion of the draft law, and approval of the draft law. Originality/novelty: Internalization of moral principles in law can produce laws that can make people happy and answer the problems of human life. At least three elements are fulfilled, namely justice, efficacy, and legal certainty. Keywords: transcendency, morals, the formation of laws

scholarly journals Creating a Virtuous Leviathan: The Party, Law, and Socialist Core Values

2019 ◽  
Vol 6 (01) ◽  
pp. 41-66 ◽  
Author(s):  
Delia LIN ◽  
Susan TREVASKES
Keyword(s):  
Chinese Communist Party ◽  
Thomas Hobbes ◽  
Core Values ◽  
Moral Values ◽  
Xi Jinping ◽  
Law And Morality ◽  
The Law ◽  
The Relationship ◽  
Law Making ◽  
Do So

AbstractIn recent years, the Chinese Communist Party has declared that its governance must dominate over all aspects of law-making and enforcement, declaring that its leadership must be implemented across the entire process of governing the country in accordance with the law. Contemporaneous to this new way of thinking about the law-Party nexus is a propaganda push to integrate moral values into the law. This paper is about moralizing governance in the Xi Jinping era. It explores the ideology behind the promotion of this morals–law integration, focusing on the Socialist Core Values in the legal realm under the current Xi Jinping administration. We do so from two interrelated perspectives. The first examines the relationship between law and morality. Here, we argue that the Party’s calls for a law–morality amalgam can be understood as a form of “pan-moralism.” The second looks at the supremacy of Party rule, extending the theory of the “Leviathan” proposed by Thomas Hobbes to take into account the Party’s morality push. This two-pronged argument enables us to assert that the Xi Jinping administration is creating a “virtuous Leviathan.”

Law and Protestantism in Denmark

2016 ◽  
Vol 102 (1) ◽  
pp. 406-418
Author(s):  
Ditlev Tamm
Keyword(s):  
Criminal Law ◽  
Marriage Law ◽  
The Reformation ◽  
The Law ◽  
The Concept Of Law ◽  
The Church ◽  
Concept Of Law ◽  
Catholic Bishops

Abstract This contribution deals with the influence of the Reformation on the law in Denmark. The Reformation was basically a reform of the church, but it also affected the concept of law and state in general. In 1536, King Christian III dismissed the catholic bishops and withheld the property of the church. The king, as custos duarum tabularum, guardian of both the tablets of law, also took over the legislation for the church. Especially in subjects of morals and criminal law new principles and statutes were enacted. Copenhagen University was reformed into a protestant seminary even though the former faculties were maintained. For that task Johannes Bugenhagen was summoned who also drafted the new church ordinance of 1537. In marriage law protestant principles were introduced. A marriage order was established in 1582.

KEBIJAKAN KRIMINALISASI DALAM UNDANG-UNDANG DI BIDANG POLITIK

Jurnal Hukum ◽  
2016 ◽  
Vol 31 (1) ◽  
pp. 1592
Author(s):  
Hanafi Amrani
Keyword(s):  
Criminal Law ◽  
Administrative Law ◽  
Moral Values ◽  
Criminal Sanction ◽  
Criminal Sanctions ◽  
The Law

AbstrakArtikel ini membahas dua permasalahan pokok: pertama, kriteria yang digunakan oleh pembentuk undang-undang di bidang politik dalam menetapkan suatu perbuatan sebagai perbuatan pidana (kriminalisasi); dan kedua, fungsi sanksi pidana dalam undang-undang di bidang politik. Terkait dengan kriminalisasi, undang-undang di bidang politik yang termasuk ke dalam hukum administrasi, maka pertimbangan dari pembuat undang-undang tentu saja tidak sekedar kriminalisasi sebagaimana diatur dalam ketentuan hukum pidana dalam arti sebenarnya. Hal tersebut disebabkan adanya pertimbangan-pertimbangan tertentu. Pertama, perbuatan yang dilarang dalam hukum pidana administrasi lebih berorientasi pada perbuatan yang bersifat mala prohibita, sedangkan dalam ketentuan hukum pidana yang sesungguhnya berorientasi pada perbuatan yang bersifat mala in se. Kedua, sebagai konsekuensi dari adanya penggolongan dua kategori kejahatan tersebut, maka pertimbangan yang dijadikan acuan juga akan berbeda. Untuk yang pertama (mala prohibita), sanksi pidana itu dibutuhkan untuk menjamin ditegakkannya hukum administrasi tersebut. Dalam hal ini sanksi pidana berfungsi sebagai pengendali dan pengontrol tingkah laku individu untuk mencapai suatu keadaan yang diinginkan. Sedangkan untuk yang kedua (mala in se), fungsi hukum pidana dan sanksi pidana lebih berorientasi pada melindungi dan mempertahankan nilai-nilai moral yang tertanam di masyarakat tempat di mana hukum itu diberlakukan atau ditegakkan. Kata Kunci: Kebijakan, Kriminalisasi, Undang-Undang PolitikThis article discusses two main problems: firstly, the criteria used by the legislators in the field of politics in determining an act as a criminal act (criminalization); secondly, the function of criminal sanctions in legislation in the field of politics. Associated with criminalization, legislation in the field of politics that is included in administrative law, the consideration of the legislators of course not just criminalization as stipulated in the provisions of criminal law in the true sense. This is due to certain considerations. Firstly, the act which is forbidden in the administration of criminal law is more oriented to act is malum prohibitum offences, whereas in actual criminal law provisions in the act are mala in se offences. Secondly, as a consequence of the existence of two categories of classification of the crime, then consideration will also vary as a reference. For the first (mala prohibita), criminal sanctions are needed to ensure the enforcement of the administrative law. In this case the criminal sanction serves as controller and controlling the behavior of individuals to achieve a desired state. As for the second (mala in se), the function of criminal law and criminal sanctions is more oriented to protect and maintain the moral values that are embedded in a society where the law was enacted or enforced.

Introduction: The Guiding Ideas

2018 ◽  
Author(s):  
Philip Pettit
Keyword(s):  
Undergraduate Student ◽  
The Law ◽  
The Concept Of Law ◽  
Scholastic Philosophy ◽  
Concept Of Law

H.L.A. Hart’s (1961) book The Concept of Law already caught my fancy as an undergraduate student in Ireland. It seemed to do more in illumination of its theme than most of the tomes in analytical, continental or scholastic philosophy to which I was introduced in a wonderfully idiosyncratic syllabus. What I attempt here, many years later, is guided by a desire to explore the possibility of providing for ethics and morality the sort of perspective that Hart gave us on the law....

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