Challenges to Legal Theory offers the reader a fascinating journey though a variety of multi-disciplinary topics, ranging from law and literature, and law and religion, to legal philosophy and constitutional law. The collection reflects some of the challenges that the field of legal theory currently faces. It is compiled by a selection of international and Spanish scholars, whose essays are made available in English translation for the first time. The volume is based on a collection of essays, published in Spanish, (...) in honour of Professor José Iturmendi Morales, of Complutense University, Madrid, and brings the rich scholarship of pre-eminent Spanish scholars of law and legal theory to an international audience. (shrink)

Does the moral status of an action provide in itself a non-instrumental, pro-tanto reason for a corresponding legal status – a reason that applies regardless of whether the law promotes a value that is independent of the law, such as preventing wrongdoing or promoting distributive or retributive justice? While the relation between morality and law is a familiar topic, this specific question is typically not considered explicitly. Yet it seems to be controversial and each of the contrasting answers to this (...) question has some appeal. The article highlights and considers this question. it concludes that the answer is negative: there is no necessary relation between morality and law in this respect. Rather, there is a reason in favor of incorporating morality into the law only when this incorporation promotes a moral value that is independent of the law. (shrink)

Alstin, Zac The varied iterations of Natural Law theory draw - either explicitly or implicitly - upon a meta-physical account of human nature. They are firmly grounded in an objective description of human nature, and the goods which characterise and sustain it. Natural Law theory is primarily a work of discovery: we distinguish between good and evil in the first instance by observing and discovering the things that contribute to human flourishing.

Written by the world's best-known political and legal theorist, Freedom's Law: The Moral Reading of the American Constitution is a collection of essays that discuss almost all of the great constitutional issues of the last two decades, including abortion, euthanasia, capital punishment, homosexuality, pornography, and free speech. Professor Dworkin offers a consistently liberal view of the Constitution and argues that fidelity to it and to law demands that judges make moral judgments. He proposes that we all interpret the abstract language (...) of the Constitution by reference to moral principles about political decency and justice. His `moral reading therefore brings political morality into the heart of constitutional law. The various chapters of this book were originally published separately and are now drawn together to provide the reader with a rich, full-length treatment of Dworkin's general theory of law. (shrink)

Our goal in this paper is two-fold. First, we aim to clarify two ways in which contemporary Christian bioethicists have erred, on Engelhardt’s account, in their attempts to do bioethics within a distinctively non-Christian idiom, namely, either (1) by rejecting a principal metaethical thesis or (2) by misrepresenting a principal moral-epistemological thesis of natural-law ethics, properly construed. Second, we intend to show not only that Engelhardt can and should endorse the Christian bioethicists’ use of non-Christian moral idioms in the public (...) square but also—perhaps to the surprise both of his critics and of his supporters—that he does, in fact, do so. (shrink)

In Ignorance of Law, Doug Husak defends a version of legal moralism on which ‘we should recognize a presumption that the criminal law should…be based, on conform to, or mirror critical morality’. Here I explore whether substantive criminal law rules should directly mirror not moral blameworthiness, but a distinct legal notion of criminal culpability – akin to moral blameworthiness but refined for deployment in legal systems. Contra Husak, I argue that the criminal law departing from the moral ideal embodied in (...) the standard of moral blameworthiness is not always to be regretted. After showing how criminal culpability might come apart from moral blameworthiness, I argue that my alternative to Husak’s view has practically interesting upshots. In particular, it allows us to resist Husak’s central conclusions about the exculpatory force of normative ignorance. There are good reasons for the criminal law to make certain charitable presumptions about citizens as competent agents, which the standard of moral blameworthiness needn’t similarly embody, and this calls into question Husak’s argument for the claim that normative ignorance exculpates. (shrink)

Lawyers and philosophers have long debated whether law should enforce social morality. This paper explores whether law should improve social morality. It explains how this might be possible, and what sort of obstacles, factual and moral, there are to doing so. It concludes with an example: our law should attempt to improve our social morality of sexual conduct.

According to the established orthodoxy, the law of private wrongs—especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of liability (...) under the guise of the proximate cause element. Analyzing these four prevailing arguments concerning the a-moral (and, with regard to some interpretations, anti-moral) character of tort law, I shall seek to show that the normative structure of tort law can, nonetheless, be reconstructed so as to reflect, to an important extent, our considered judgments about basic moral principles. (shrink)

In this paper, I explore Kant’s discussion of juridical and ethical laws in the introduction to the Metaphysics of Morals as a whole. Following Marcus Willaschek and early Allen Wood, I pose a dilemma for Kant that I call “the paradox of juridical imperatives”, a dilemma that Willaschek and Wood hold Kant can only avoid by giving up his claim that juridical laws are categorical imperatives. I show how a set of interpretative issues concerning juridical incentives, the content of (...) juridical laws, and the idea of an “indirect” ethical obligations, hang together, and must solved simultaneously in order to address the paradox. I argue, contra Willaschek and Wood, that we can dissolve the paradox, solving the network of issues satisfactorily and affirming the status of juridical laws as categorical imperatives, once we recognize that one can go wrong with respect to a principle while fulfilling the letter of its requirements. The picture that emerges is one on which we can straightforwardly affirm Recht as a moral concept for Kant, while simultaneously representing its distinctive character in his system of morality. (shrink)

Resumen Este artículo da cuenta de la forma en que el liberalismo del filósofo chileno Jenaro Abasolo (1833-1884), al conceder un rol activo al Estado en la “habilitación de la masa desheredada”, responde al adjetivo “social”. En Abasolo, el deber de asegurar en lo posible la prosperidad de las personas, se sostiene en el derecho natural y en una teología de la historia pan[en]teísta afín al krausismo. Abasolo piensa que la redención del desheredado en naciones aun juveniles debe apoyarse en (...) una forma de Estado “casi socialista”. Esto implica una acción de centralización y de tutela del pueblo que enfrenta a los autores del artículo a la gran dificultad de determinar cómo el autor chileno realiza la transición de una habilitación consumada a través de un buen grado de despotismo, hacia la libertad. Es decir, resulta controversial establecer la factibilidad de la realización de esta vía cuasi socialista a un liberalismo contrafácticamente orientado por el laissez faire. Abstract This article shows how the liberalism of the Chilean philosopher Jenaro Abasolo (1833-1884), by granting an active role to the State in the “empowerment of the disinherited mass”, responds to the adjective “social”. In Abasolo, the duty to ensure as far as possible the prosperity of the people is based on natural law and on a pan[en]theistic theology of history akin to Krausism. Abasolo thinks that the redemption of the disinherited in even juvenile nations must be supported by an “almost socialist” form of state. This implies an action of centralization and guardianship of the people that confronts the authors of the article with the great difficulty of determining how the Chilean author makes the transition from an empowerment consummated through a good degree of despotism, towards freedom. That is to say, it is controversial to establish the feasibility of the realization of this quasi-socialist path to a liberalism counterfactually oriented by laissez faire. (shrink)

The inclusion of antimicrobial resistance (AMR) and increased research and development (R&D) capabilities in the most recent outline of the World Health Organization’s (WHO’s) international pandemic instrument signals an opportunity to reshape pharmaceutical R&D system in favour of antimicrobial product development. This article explains why the current innovation ecosystem has disadvantaged the creation of antimicrobial products for human use. It also highlights how the COVID-19 pandemic experience can inform and stimulate international cooperation to implement innovative R&D incentives to bring new, (...) life-saving antimicrobial products to the market. (shrink)

The final volume of Feinberg's four-volume work, The Moral Limits of Criminal Law examines the philosophical basis for the criminalization of so-called "victimless crimes" such as ticket scalping, blackmail, consented-to exploitation of others, commercial fortune telling, and consensual sexual relations.

The british legal philosopher John Austin stands at the threshold of the evolution of the legal positivist tradition. His work, which dates back to the first half of the 19th century, was especially important to establish the basic elements of this school of legal understanding. Among his contributions to the legal positivist doctrine, lies the creation of the thesis that separates morality from law. Under an ethical context, however, John Austin was an ardent utilitarian who defended the use of the (...) principle of utility as the only rational criteria for the unveiling of superior moral standards (divine laws). Considering both dimensions of his understanding, it has long been wondered if his utilitarian ethics have influenced, somehow, his legal theory, especially in regards to the separation thesis. Said thesis, which is in the center of the legal positivist tradition, has been interpreted in different ways in contemporary legal debate. A particular branch, called ethical positivism, opened new perspectives to the study of this tradition, defending the legal positivism theory as a morally satisfactory theoretical model for the contemporary legal systems. Hence, using the main premise of ethical positivism (which states that there are moral reasons to defend the separation thesis) as an interprative and methodological tool, this paper plans on revisiting the link between John Austins legal and ethical convictions, in order to comprehend what were the moral reasons which led him to defend the separation of what law is and what it should be. (shrink)

I am writing on moral knowledge in Locke's Essay Concerning Human Understanding. There are two basic parts. In the first part, I articulate and attack a predominant interpretation of the Essay . This interpretation attributes to Locke the view that he did not write in the Essay anything that would be inconsistent with his early views in the Questions Concerning the Laws of Nature that there exists a single, ultimate, moral standard, i.e., the Law of Nature. For example, John Colman, (...) in his book John Locke's Moral Philosophy , argues that even though Locke explains in the Essay that we arbitrarily create our moral notions, they are still objective since they are bound together with the Law of Nature. Colman explains that the features of human nature relevant to the derivation of the Law of Nature are universally shared needs and concerns . I argue that this presupposes a view of Locke which assumes that there are essences of species independent of our beliefs about them. However, I attempt to show from the text of the Essay that this view cannot be supported. ;In the second part, I argue that the text of the Essay supports two alternative theses. The first is that given the kind of metaphysical world-view presupposed by the corpuscular method of science employed within the Essay, coupled with Locke's commitment to the possibility of moral knowledge, he was left with only one option with reference to ethics, viz., to make moral goodness or evil a mind-dependent relation between a rule and an action, instead of a property of an action or person which exists independently of our moral beliefs. This view is logically inconsistent with the existence of the Law of Nature. The second is that Locke has a semantical view of moral claims which is consistent with his relational view of moral goodness, viz., the primary function of moral judgments is to recommend behavior for ourselves and others. I described. However, Locke explains in the Essay that the opposite takes place with respect to our moral notions: events and persons must conform to the moral notion. ;On the account that I offer, Locke's views on moral epistemology are much closer to David Hume's than many have supposed, and correspondingly, anticipate the more skeptical views of moral epistemology in the twentieth century. (shrink)

A defense of the view that every truly human action (that is, every action that proceeds from reason and will) is a moral action. There is no such thing as a concrete, pre-moral action.

In this book, Piderit argues that a natural law approach to morality provides a grounded pathway toward marriage, and shows why these fairly traditional practices help young people find a partner to whom he or she can realistically promise love "until death do us part.".

Offering a new interdisciplinary approach to global justice and integrating the insights of international relations and contemporary ethics, this book asks whether the core norms of international law are just by appraising them according to a standard of global justice grounded in the advancement of peace and protection of human rights.

How is moral knowledge possible? This paper defends the anti-Humean thesis that we can acquire moral knowledge by deduction from wholly non-moral premises. According to Hume’s Law, as it has become known, we cannot deduce an ‘ought’ from an ‘is’, since it is “altogether inconceivable how this new relation can be a deduction from others, which are entirely different from it” (Hume, 1739, 3.1.1). This paper explores the prospects for a deductive theory of moral knowledge that rejects Hume’s Law.

In 'Law as a Leap of Faith' Gardner's analogy of faith in law to faith in God may seem outlandish. But consider the implications of the positions Gardner's jurisprudential views assemble: law can give us reason to do what we would otherwise not have reason to do - in fact it can give us reason to do what would otherwise be immoral. This is the implication of a commitment to law's capacity to give exclusive reasons, on one hand, together with (...) the commitment, on the other, that any given law is valid because of its sources and not its moral merits. (shrink)

This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. Feinberg presents a detailed analysis of the concept and definition of harm and applies it to a host of practical and theoretical issues, showing how the harm principle must be interpreted if it is to be a plausible guide to the lawmaker.

This review article critically examines R. A. Duff and Stuart P. Green’s wide-ranging Philosophical Foundations of Criminal Law. The book captures well a crucial debate at the heart of its topic: is morality a key for understanding criminal law? I first consider legal moralism arguments answering this question in the affirmative and argue they should be rejected. I next consider alternatives to argue that philosophers of criminal law should look beyond legal moralism for more compelling theories about criminal law.

After qualifying in which sense ‘realism’ can be applied to eighteenth-century views about morality, I argue that while Kant shares with traditional moral realists several fundamental claims about morality, he holds that those claims must be argued for in a radically different way. Drawing on his diagnosis of the serious weaknesses of traditional moral realism, Kant proposes a novel approach that revolves around a hybrid view about moral obligation. Since his solution to that central issue combines elements of realism with (...) elements of voluntarist ascent, Kant’s position can be characterized as an idealist version of moral realism or, more specifically, as the combination of a strong realism about the moral law with an idealist account of moral obligation. (shrink)

In The Moral Dimensions of Human Rights, Carl Wellman takes a broad approach to human rights by discussing all three types - moral, international, and national -at length. At the same time, Wellman pays special attention to the moral reasons that are relevant to each kind of human rights.

This essay is about the difficulties of doing criminal justice in the context of severe social injustice. Having been marginalized as citizens of the larger community, those who are victims of severe social injustice are understandably alienated from the dominant political institutions, and, not unreasonably, disrespect their authority, including that of the criminal law. The failure of equal treatment and protection and the absence of anything like fair and decent life prospects for the members of the marginalized populations erode the (...) basis for its allegiance to demands of the political community. The criminal law thus occupies a problematic normative position with respect to lawbreakers in this population; in many cases, it finds itself in the position of convicting them for crimes for which the political community itself bears some significant responsibility. The attempt to administer criminal justice therefore faces a serious moral predicament; on the one hand, criminal law has a right and an.. (shrink)

In this book, S. A. Lloyd provides a radical interpretation of Hobbes' laws of nature, revealing them to be not egoistic precepts of personal prudence but rather moral instructions for obtaining the common good. This account of Hobbes' moral philosophy stands in contrast to both divine command and rational choice interpretations. Drawing from the core notion of reciprocity, Lloyd explains Hobbes' system of 'cases in the law of nature' and situates Hobbes' moral philosophy in the broader context of his political (...) philosophy and views on religion. Offering ingenious new arguments, Lloyd defends a reciprocity interpretation of the laws of nature through which humanity's common good is secured. (shrink)

The second volume in Joel Feinberg's series The Moral Limits of the Criminal Law, Offense to Others focuses on the "offense principle," which maintains that preventing shock, disgust, or revulsion is always a morally relevant reason for legal prohibitions. Feinberg clarifies the concept of an "offended mental state" and further contrasts the concept of offense with harm. He also considers the law of nuisance as a model for statutes creating "morals offenses," showing its inadequacy as a model for understanding (...) "profound offenses," and discusses such issues as obscene words and social policy, pornography and the Constitution, and the differences between minor and profound offenses. (shrink)

Based on the 1963 Storrs Lectures at Yale, these four related essays are an attempt to clarify Fuller's conception of a procedural, non-substantive natural law, which requires that such characteristics as generality, promulgation, non-contradiction, etc., be present in any genuine legal system. These requirements, he indicates, can never all be perfectly met, and hence the "inner morality of law" must remain largely a morality of "aspiration" rather than of "duty." The third essay, entitled "The Concept of Law," is rather disappointing (...) as an answer to possible criticisms and as a half-hearted attack on the book of the same title by Fuller's opponent, Hart; only Fuller's fundamental point, namely, that positivism neglects the notion of purpose in law, comes through very forcefully. In his final chapter, Fuller concludes, tentatively, that promoting communication would probably be the highest goal of any more substantive natural law conception; here, he is weakest of all. Nevertheless, his fine style, his excellent use of cases and other examples, and his sensitivity to crucial issues outweigh the book's inadequacies.—W. L. M. (shrink)

An analysis of moral theology, the study of how man must live in order to achieve his highest end, which, according to many theistic outlooks, is union with his maker. A species of theology, it involves the study of things divine, and is distinct from dogmatic theology by virtue of its focus. Whereas dogmatic theology concentrates upon doctrines and articles of faith, moral theology relates, more specifically to the actions of human beings and their relations to God. Moral theology naturally (...) involves a discussion of ethics and the natural law, since this law is recognized also by divine revelation. It is not, however, co-extensive with moral philosophy, since its subject matter derives generally from revelation and theological sources. -/- . (shrink)

The aim of the article is to answer the question of the importance of legal education in ensuring legal ethics and the moral compass of a person by understanding the most important aspects of it. Methods applied include theoretical-scientific analysis, systematic and critical review of scientific literature and other relevant sources, normative and critical analysis of ethical principles in the context of legal education, empirical-quantitative and qualitative analysis of scholarly articles. According to the main thesis of this article, the integration (...) of ethics into legal education can enhance moral development of future lawyers and improve their ability to serve justice. This paper traces the historical neglect of ethics in legal education and argues for its central place in modern studies. For lawyers to serve justice, a well-defined moral compass is essential. Several conclusions are drawn in this article, and first of all it is believed that universities will have to realise that a good lawyer is not only a professionally competent lawyer, because that is not enough in today’s world. Even if it is a personal journey, universities cannot stand aside, the future lawyer must be helped to grow. What is much more important is not so much the codes of ethics but how our moral compass works and what path it can point us down. To avoid getting lost, law schools could teach future lawyers how to empower their moral compass and find their way around. Each law teacher should have to find ways to teach the key virtues of a lawyer’s moral compass (e.g., wisdom, fortitude, temperance, and justice), how to help law students grow and not burn out in difficult situations. As our empirical research shows, the best scholarly articles on legal education discuss the elements of legal ethics. It is recognised that the ethics of lawyers is increasingly becoming an issue that goes beyond the professional aspects, and it is the university that must contribute to the development of the moral compass. (shrink)

In this article, I discuss the Protestant contribution to the modern concept of autonomy on the basis of an analysis of John Calvin's moral theology. I show that Calvin affirms our incapacity to know and want what is morally good, as expressed by natural law. Such incapacity is compensated for by the biblical mandates that, according to Calvin, should be incorporated into the positive legislation of Christian republics. In view of all this, I conclude that Calvin is far from the (...) Kantian idea of autonomy which defines our Modernity. (shrink)

Few books have had as great an impact on intellectual history as Kant's The Moral Law . In its short compass one of the greatest minds in the history of philosophy attempts to identify the fundamental principle 'morality' that governs human action. Supported by a clear introduction and detailed summary of the argument, this is not only an essential text for students but also the perfect introduction for any reader who wishes to encounter at first hand the mind of one (...) of the finest and most influential thinkers of all time. (shrink)

Political and legal theorists sometimes assign attempts to define the purpose of law and government into one of two categories: protectionism indicates that law and government should protect people from the violation of their rights while perfectionism indicates that law and government should also actively promote virtue in the human community. In this essay I draw primarily from the biblical covenant with Noah, supplemented with other biblical and moral-theological considerations. I argue that protectionism, contrary to common assumptions, need not be (...) individualist, subjectivist, or indifferent to the broader well-being of society. Furthermore, and chiefly, I argue that a strong protectionist presumption ought to govern Christian ethical reflection upon the purpose of law and government. (shrink)

As a leading judge of seventeenth century Scotland, Viscount Stair (1619−1695) was a significant public figure in the immediate period before the Scottish Enlightenment. Indeed, he offers a vital but often overlooked insight into the intellectual life of Scotland during his lifetime. However, as Stair never published anything specifically on moral philosophy, this article asks if it is possible to reconstruct a moral theory on his behalf based on his printed legal and theological works. On the assumption that this is (...) feasible, this article examines how Stair’s moral theory relates to the Scottish variant of natural jurisprudence. In response to these questions, the analysis offered here argues that one can constructure answers to central questions of moral philosophy from Stair’s printed works, and further that it is possible to classify his moral theory as an early example of Scottish natural jurisprudence. Although there are acknowledged challenges in reconstructing his moral theory, it is suggested by the argument below that, to fully grasp the intellectual life of seventeenth century Scotland, we may need to engage more deeply with the theological works of seventeenth century Scots as well as adopt resourceful methods to build a picture of seventeenth century ideas relating to morality. (shrink)

What are moral principles? The assumption underlying much of the generalism–particularism debate in ethics is that they are (or would be) moral laws: generalizations or some special class thereof, such as explanatory or counterfactual-supporting generalizations. I argue that this law conception of moral principles is mistaken. For moral principles do at least three things that moral laws cannot do, at least not in their own right: explain certain phenomena, provide particular kinds of support for counterfactuals, and ground moral necessities, “necessary (...) connections” between obligating reasons and obligations. Moreover, neither a best-systems theory of moral principles nor any of the competing theories of moral principles proposed by Sean McKeever and Michael Ridge, Pekka Väyrynen, and Mark Lance and Margaret Little could vindicate the law conception of moral principles. I conclude with some brief remarks about what moral principles might be if they are not moral laws. (shrink)

Introduction -- Contending for moral first things : Christian social ethics and postconsensus culture -- Natural law and the Christian tradition -- Natural law and the Protestant prejudice -- Moral law, Christian belief, and social ethics -- Contending for moral first things in ethical and bioethical debates : critical categories, part 1 -- Contending for moral first things in ethical and bioethical debates : critical categories, part 2 -- Ethics, bioethics, and the natural law, a test case : euthanasia yesterday (...) and today -- The natural law and public morality : second thoughts on what is at stake. (shrink)

What is the moral law and what role does it and should it play in political theory and political practice? In this entry we will try to answer these important questions by first examining what the moral law is, before investigating the different ways in which the relationship between morality and politics can be conceptualized.

This essay shows how Derrida, in a variety of texts, engages directly or indirectly with the Kantian moral law, which rests on the assumption of man's autonomy vis-à-vis his natural inclinations. In the background of this analysis is Derrida's engagement with Freud, the latter having argued that the Kantian moral law is located in, and can be equated with, the superego. Derrida challenges Freud's assignation of the moral law (solely) to the superego, and suggests that what appears to Kant as (...) the moral law and to Freud as the demands of the superego, already involve a limitation of a much more radical demand on the self: that of absolute sacrifice, and which one can understand with reference to Freud's death drive. This demand can be referred to as the law of law, that is, the law which makes of the moral law a law. Within this broader framework, the essay explores in detail Derrida's reading of Kant's notion of respect that is owed to the moral law, the notion of duty, and the formulation of the categorical imperative by Kant in terms of an ‘as if’. (shrink)