Two basic models of law and morality -- Essentially ambiguous concepts -- The debate between Fuller, Hart, and Dworkin -- The relations between law and morality -- A pluralist framework -- What is Legal Interactionism? -- Understanding the dynamics of law --Three apparent anomalies in modern law -- The necessary and contingent relationship between law and morality.

A central concept in Dutch health law is the care of a good caregiver. We find this standard in various statutes and in legal doctrine. This concept is, however, vague and open and must be made more concrete in professional practice, in moral theory, and in law. In this article, we explore the implications of this complex standard and analyze what moral philosophy and jurisprudence can contribute to its clarification and implementation in professional practice and law. We start with some (...) reflections on how practitioners see this norm and try to live up to it. (shrink)

In this article, we sketch a new approach to law and ethics. The traditional paradigm, exemplified in the debate on liberal moralism, becomes increasingly inadequate. Its basic assumptions are that there are clear moral norms of positive or critical morality, and that making statutory norms is an effective method to have citizens conform to those norms. However, for many ethical issues that are on the legislative agenda, e.g. with respect to bioethics and anti-discrimination law, the moral norms are controversial, vague (...) or still evolving. Moreover, law proves not to be a very effective instrument. Therefore, we need a new paradigm, both for descriptive and for normative analysis. This interactive paradigm, as a normative position, can be summarised in two theses. The process of legislation on ethical issues should be structured as a process of interaction between the legislature and society or relevant sectors of society, so that the development of new moral norms and the development of new legal norms may reinforce each other. And legislation on ethical issues should be designed in such a way that it is an effective form of communication which, moreover, facilitates an ongoing moral debate and an ongoing reflection on such issues, because this is the best method to ensure that the practice remains oriented to the ideals and values the law tries to realise. (shrink)

The central thesis of this paper is that, for most issues of multiculturalism, regarding them as a problem of tolerance puts us on the wrong track because there are certain biases inherent in the principle of tolerance. These biases -- individualism, combined with a focus on religion and a focus on beliefs rather than on persons or practices -- can be regarded as distinctly Protestant. Extending the scope of tolerance may seem a solution but if we really want to counter (...) these biases, the principle of tolerance becomes so general that it loses any distinctive meaning. Therefore, we should accept the limited scope of tolerance and its biases. The principle of tolerance can still be useful for some problems where there is a clear and direct link to political or religious beliefs. Moreover, it should be cherished as a more general attitude or practice in Dutch society. For most problems of multiculturalism, however, we should appeal to broader theoretical frameworks that do justice to persons and practices. (shrink)

I analyze three forms of the slippery slope argument (two logical and one empirical) using two questions: 1) in the context of what kind of norms are we considering a first step on a possible slope: statute law, precedent law, positive morality, or critical morality? 2) What is meant by "If we allow this first step"? The conclusion is that the argument's greatest force is in a context of institutionalized norms, like law, whereas its importance in morality is only marginal.

This paper reinvestigates the question of liberal neutrality. We contend that current liberal discussions have been dominated—if not hijacked—by one particular interpretation of what neutrality could imply: namely, exclusive neutrality, aiming to exclude religious and cultural expressions from the public sphere. We will argue that this is merely one among several relevant interpretations. To substantiate our claim, we will first elaborate upon inclusive neutrality by formulating two supplementary interpretations: proportional neutrality and compensatory neutrality. Second, we will argue that inclusive proportional (...) neutrality is the most appropriate interpretation in many contexts. Our discussion highlights the fact that some political disputes should not be seen in terms of the antithesis between liberal neutrality and illiberal alternatives but, instead, as a clash between various valid but incompatible interpretations of what liberal neutrality may imply. (shrink)

Since Gallie introduced the notion of essentially contested concepts, it has given rise to considerable debate and confusion. The aim of this paper is to bring clarity to these debates by offering a critical reconstruction of the notion of essential contestedness. I argue that we should understand essentially contestable concepts as concepts that refer to ideals or to concepts and phenomena that can only be fully understood in light of ideals and that are, as a consequence, open to pervasive contestation. (...) Moreover, some concepts are second-order essentially contested: it may be a matter of ongoing dispute as to whether they should be regarded as essentially contested. The concept of law is an example. Some authors argue that it is ideal-oriented, whereas others claim it is not. This insight that ‘law’ is a second-order essentially contested concept may explain some of the disagreements between legal positivism and its various opponents. (shrink)

Moral ideals should not be seen as simple and purely personal, but as complex values with a social dimension that transcend attempts to formulate or realize them. Orientation towards ideals needs a realistic component: people should identify with the quest for an ideal, not with the ideal itself, and consider the possibility of negative consequences of their pursuit. Such realism about ideals includes acknowledging that ideals are not the only, nor the most important, motivating force of morality.

In most Western countries, health law bioethics are strongly intertwined. This strong connection is the result of some specific factors that, in the early years of these disciplines, facilitated a rapid development of both. In this paper, I analyse these factors and construe a development theory existing of three phases, or ideal‐typical models. In the moralistic‐paternalistic model, there is almost no health law of explicit medical ethics and the little law there is is usually based on traditional morality, combined with (...) paternalist motives, the objections to this modal are that its paternalism and moralism are unacceptable, that it is too static and knows no external control mechanisms. In the liberal model, which is now dominant on most Western countries, law and ethics closely cooperate and converge, both disciplines use the same framework for analysis: they are product‐oriented rather than practice‐oriented; they use the same conceptual categories, they focus on the minimally decent rather than the ideal, and they are committed to the same substantive normative theory in which patient autonomy and patient rights are central. However, each of these four characteristics also result in a certain one‐sidedness. In some countries, a third model is emerging. In this postliberal model, health law is more modest and acknowledges its inherent and normative limits, whereas ethics takes a richer and most ambitious self image. As a result health law and ethics will partly diverge again. (shrink)

In most Western countries, health law bioethics are strongly intertwined. This strong connection is the result of some specific factors that, in the early years of these disciplines, facilitated a rapid development of both. In this paper, I analyse these factors and construe a development theory existing of three phases, or ideal‐typical models. In the moralistic‐paternalistic model, there is almost no health law of explicit medical ethics and the little law there is is usually based on traditional morality, combined with (...) paternalist motives, the objections to this modal are that its paternalism and moralism are unacceptable, that it is too static and knows no external control mechanisms. In the liberal model, which is now dominant on most Western countries, law and ethics closely cooperate and converge, both disciplines use the same framework for analysis: they are product‐oriented rather than practice‐oriented; they use the same conceptual categories, they focus on the minimally decent rather than the ideal, and they are committed to the same substantive normative theory in which patient autonomy and patient rights are central. However, each of these four characteristics also result in a certain one‐sidedness. In some countries, a third model is emerging. In this postliberal model, health law is more modest and acknowledges its inherent and normative limits, whereas ethics takes a richer and most ambitious self image. As a result health law and ethics will partly diverge again. (shrink)

This chapter contains sections titled: Law Morality From Morality to Law From Law to Morality Converging Law and Morality Diverging Law and Morality: Beyond the Liberal Model References Further reading.

Is the law good? How can it be improved? These questions are frequently addressed, both in traditional doctrinal research and in interdisciplinary legal research. In this article, I elaborate a general argumentative framework for justifying evaluations and recommendations for legislative reform, and I identify the chains of argument for making evaluations and recommendations. This may help researchers to make their arguments explicit and transparent, and then to justify the choices made for each of the steps in the argument. This enables (...) readers - as well as authors - to assess whether the argument’s conclusions are sound and convincing. A key problem in making these arguments concerns the choice of standards for evaluation. I suggest that they can be best understood in terms of the underlying values. In order to make all-things-considered evaluations and normative recommendations, interdisciplinary cooperation between doctrinal, socio-legal, and legal-philosophical researchers is necessary. Therefore, individual researchers will usually have to settle for pro tanto evaluations and recommendations. (shrink)

In this article we present a conceptual overview of relevant interpretations of what state neutrality may imply; we suggest a distinction between inclusive neutrality and exclusive neutrality. This distinction provides a useful framework for understanding the several positions as presented by the parties in the Lautsi case. We conclude by suggesting a solution of the Lautsi case that might provide a more viable solution.

Rawls’ notion of reflective equilibrium has a hybrid character. It is embedded in the pragmatist tradition, but also includes various Kantian and other non-pragmatist elements. I argue that we should discard all non-pragmatist elements and develop reflective equilibrium in a consistently pragmatist manner. I argue that this pragmatist approach is the best way to defend reflective equilibrium against various criticisms, partly by embracing the critiques as advantages. I begin with discussing how each of the three versions of reflective equilibrium in (...) Rawls’ work combines pragmatist and non-pragmatist elements. For Rawls, the primary purpose of reflective equilibrium is epistemic: namely, to construct moral theories or judgments. In a pragmatist approach, there are three connected purposes for moral inquiry: right action, reliable understanding and self-improvement. Depending on the specific context of a reflective equilibrium process, these general purposes can give rise to a variety of specific purposes. In the next sections, I develop a pragmatist approach to reflective equilibrium and discuss the implications of this approach for core elements of reflective equilibrium. These elements are: the initial convictions, facts, personal commitments and comprehensive views of life, coherence and additional methods for critical scrutiny. (shrink)

In this article, I argue that law has two oftenneglected functions: the expressive and thecommunicative functions. They are especially importantfor legislation on moral issues, such as biomedicalethics and anti-discrimination law. The communicativefunction of law is a complex one: law may create anormative framework, a vocabulary to structurenormative discussions, as well as institutions andprocedures that promote further discussion. Theexpressive function of law is at stake when itexpresses which fundamental standards, which valuesare regarded as important. The recognition of thesefunctions is not only (...) important for descriptivepurposes; it is also fruitful for normative theory. (shrink)

Concepts such as law, religion or morality may refer both to a practice (or process) and to a doctrine (or product). My thesis is that we should not regard these as separate phenomena, but as two partly incompatible models of the same phenomenon. Law, religion and morality are therefore essentially ambiguous concepts (EAC). An EAC is a concept which refers to a dynamic phenomenon that may only be described and modeled in at least two different ways that are each essentially (...) incomplete and which are partly incompatible with each other. This means that we have to choose between either an incomplete description or an incoherent one. An EAC resembles an essentially contested concept (ECC) as both allow of conflicting conceptions. However, for an ECC the explanation of pluralism lies in the evaluative character of the concept, for an EAC it lies in the dynamic character of the phenomenon. The insight that many of our social concepts are essentially ambiguous may provide a better understanding of social and customary rules and of the debate between legal positivism and its opponents. I reconstruct the positions of three contributors to this debate, Fuller, Hart and Dworkin. An EAC framework offers a better insight into their theories, highlights the deficiencies, and explains why their debates were characterized by serious misunderstandings. (shrink)

Ethical analysis may result in recommendations for legal reform. This article discusses the problem of how academic researchers can go from ethical normative judgments to recommendations for law reform. It develops a methodological framework for what may be called ‘ethical transplants’: transplanting ethical normative judgments into legislation. It is an inventory of the issues that need to be addressed, but not a substantive normative theory. It may be especially helpful for Ph.D. students and beginning researchers working in interdisciplinary projects combining (...) ethical and legal analysis.I distinguish three stages in the process from ethics to law: translation, transformation, and incorporation. The latter stage can be divided into three clusters of issues, these being legal, empirical, and normative ones. Most of the philosophical literature on the legal enforcement of morals focuses on the normative issues. My aim is to broaden the perspective in two ways. First, I show that this is only one relevant issue and that we should address legal and empirical issues and the processes of translation and transformation as well. Second, I argue that we should pay more attention to pluralism and variation. (shrink)

The central thesis of this paper is that, for most issues of multiculturalism, regarding them as a problem of tolerance puts us on the wrong track because there are certain biases inherent in the principle of tolerance. These biases – individualism, combined with a focus on religion and a focus on beliefs rather than on persons or practices – can be regarded as distinctly Protestant. Extending the scope of tolerance may seem a solution but if we really want to counter (...) these biases, the principle of tolerance becomes so general that it loses any distinctive meaning. Therefore, we should accept the limited scope of tolerance and its biases. The principle of tolerance can still be useful for some problems where there is a clear and direct link to political or religious beliefs. Moreover, it should be cherished as a more general attitude or practice in Dutch society. For most problems of multiculturalism, however, we should appeal to broader theoretical frameworks that do justice to persons and practices. (shrink)

Moral ideals should not be seen as simple and purely personal, but as complex values with a social dimension that transcend attempts to formulate or realize them. Orientation towards ideals needs a realistic component: people should identify with the quest for an ideal, not with the ideal itself, and consider the possibility of negative consequences of their pursuit. Such realism about ideals includes acknowledging that ideals are not the only, nor the most important, motivating force of morality.

Ideals are important in social reality, but they have been neglected in theories of law, politics, and morality. This book has the role of ideals as its central theme. More specifically, it argues that ideals are necessary to understand pluralism, that they are key elements in controversy and debate, and that they enable development. It combines theoretical analysis of the concept of ideals with discussion of concrete debates and cases, including philosophical debates about politics and equality, sociological studies of the (...) diverse interpretations of the rule of law, and accounts of the development of environmental law and privacy law. Thus, the functioning of ideals is critically examined, showing the merits and limitations of an ideal-oriented approach. (shrink)

The familiar idea of a gap between theory and practice cannot be understood in terms of distinctions such as general-particular or abstract-concrete. A "gap" suggests a more fundamental difference. The underlying distinction is that between two incomplete and incompatible models of morality, a doctrine model and a practice model. Morality can be described in terms of interaction, a practice, and it can be described as a set of precepts, an ethical doctrine. This distinction may help us to understand various debates (...) and problems in ethics. It explains why there is so little progress in methodological discussions on reflective equilibrium. In a doctrine perspective, reflective equilibrium is a method to attain moral truth; in a practice perspective it is a process of continuous critical reflection. The distinction also explains conflicting views on moral expertise. In a practice perspective, moral philosophers are not moral experts, whereas in a doctrine perspective they are. (shrink)

Lon Fuller, one of the great American jurists of this century, is often remembered only for his stand on the morality of law in the Fuller-Hart debate. Rediscovering Fuller considers the full range of Fuller's writings, from his early engagement with legal fictions and his critique of legal positivism to his later work on implicit law and the art of institutional design. Contributors from the fields of both civil law and common law argue that Fuller's insights are highly relevant to (...) contemporary concerns. The book contains essays by K. Winston, D. Dyzenhaus, P. Cliteur, F. Schauer ("Beyond the Fuller-Hart Debate"), P. Westerman, W. van der Burg, D. Luban ("Moralities of Law"), G. Postema, P. Teachout ("Implicit Law"), R. Macdonald, W. Witteveen, J. Allison, M. Hertogh, K. Soltan ("The Art of Institutional Design"), J. Allan, F. Mootz, J. Vining ("Law's Dialogue"), and a preface by Ph. Selznick. "At some point in the future, when we become more open to the moral relevance of social inquiry, more empirical in our study of philosophical issues, more capable of uniting moral and social theory, Lon Fuller's work will stand as a landmark. This volume will help show the way." —Ph. Selznick. (shrink)

In this article, we sketch a new approach to law and ethics. The traditional paradigm, exemplified in the debate on liberal moralism, becomes increasingly inadequate. Its basic assumptions are that there are clear moral norms of positive or critical morality, and that making statutory norms is an effective method to have citizens conform to those norms. However, for many ethical issues that are on the legislative agenda, e.g. with respect to bioethics and anti-discrimination law, the moral norms are controversial, vague (...) or still evolving. Moreover, law proves not to be a very effective instrument. Therefore, we need a new paradigm, both for descriptive and for normative analysis. This interactive paradigm, as a normative position, can be summarised in two theses. The process of legislation on ethical issues should be structured as a process of interaction between the legislature and society or relevant sectors of society, so that the development of new moral norms and the development of new legal norms may reinforce each other. And legislation on ethical issues should be designed in such a way that it is an effective form of communication which, moreover, facilitates an ongoing moral debate and an ongoing reflection on such issues, because this is the best method to ensure that the practice remains oriented to the ideals and values the law tries to realise. (shrink)

How can a realistic ethical imagination about the future of a technology take shape? This article contains a reflection which is based on the experiences of an embedded ethicist in the context of biophysical research conducive to the development of photoacoustic mammography, which is intended for the non-invasive detection of breast cancer. Imagination in this context already informs the activities of the biophysical researchers, but its role is limited: biophysical future scenarios concentrate on the technological advances that photoacoustics could bring (...) about. In this article it is argued that it is advisable to also consider the medical practice and the ways in which this practice is likely to change as an effect of the introduction of photoacoustic mammography into it. On the basis of this more encompassing imaginative endeavor it is possible to get a clearer idea about how new technologies are able to contribute to human well being, which is informative for the setting of research-goals/priorities and a responsible implementation of new technologies into the world. (shrink)

Public funding institutions are able to influence what aspects researchers take into account when they consider the future impacts of their research. On the basis of a description of the evaluation systems that public research funding institutes in the Netherlands (STW and SenterNovem) use to estimate the quality of engineering science, this article shows that researchers are now predominantly required to reflect on the intellectual merit of their research and on the usability and marketability of the technology it contributes to. (...) In addition, SenterNovem also mandates reflection on sustainability. Here it is argued that these requirements do not suffice. Funding institutions should also do more to enhance reflection during the research process on the “soft impacts” of technologies, which refer to the alterations that technologies may bring about in the quality of human life. To do this it is suggested that it is helpful to engage a specifically trained ethicist to monitor the research process and create a feedback loop from the ethicist to the funding institution. (shrink)

Making better choices about future technologies that are being researched or developed is an important motivator behind lay ethics interventions. However, in practice, they do not always succeed to serve that goal. Especially authors who have noted that lay ethicists sometimes take recourse to well-known themes which stem from old, even ‘archetypical’ stories, have been criticized for making too little room for agency and decision-making in their approach. This paper aims to contribute to a reflection on how lay ethics can (...) acquire more practical relevance. It will use resources in narrative ethics to suggest that in order to be relevant for action, facilitators of lay ethics interventions need to invite participants to engage in a narrative quest. As part of a quest, lay ethicists should be asked to reflect on a specific question or choice, use diverse input which is informative about the heterogeneity of viewpoints that are defended in society and argue for their standpoints. (shrink)

This article reflects on the contribution that stakeholder involvement could give to circular bioeconomy transformation (CBE). By comparing argument for stakeholder involvement in literature as well as on our own experiences in six stakeholder involvement workshops, we argue that it is probably unrealistic to fully achieve both normative and co-design goals in a single workshop. Furthermore, stakeholder involvement can help to acquire insight into dependencies in the market and offer an opportunity to connect people to deal with them. Therefore we (...) propose for future stakeholder involvement initiatives for CBE to focus on (1) identify relationships of dependency which make it hard for players in the market to change, (2) develop strategies to change while mitigating the detrimental effects on already existing relationships and (3) gradually breaking down relationships and building new ones that support CBE. (shrink)

Digital farming technologies promise to help farmers make well-informed decisions that improve the quality and quantity of their production, with less labour and less impact on the environment. This future, however, can only become a reality if farmers are willing to share their data with agribusinesses that develop digital technologies. To foster trust in data sharing, in Europe the EU Code of Conduct for agricultural data sharing by contractual agreement was launched in 2018 which encourages transparency about data use. This (...) article looks at the EU Code through the lens of literature on trust and contract agreements. We agree with the makers of the EU Code that a contract can make an important contribution to trust relationships as it is needed to mitigate the detrimental effects of power relationships between experts and non-experts. Building on Onora O’Neills perspective to trust, however, we argued that a contract can only be successful in fostering trust when information is comprehended by the more vulnerable party in this relationship who has to sign the contract, the more powerful partner takes responsibility to provide that information, and information is tailored to the information needs of the party signing the contract, even when data are re-used over a longer period. In addition, we think that differences between trust relationships and relationships of accountability, give reason to add to informed consent other more substantive ethical components in a more encompassing code of conduct. (shrink)

Courses on ethics and technology have become compulsory for many students at the three Dutch technical universities during the past few years. During this time, teachers have faced a number of didactic problems, which are partly due to a growing number of students. In order to deal with these challenges, teachers in ethics at the three technical universities in the Netherlands — in Delft, Eindhoven and Twente — have developed a web-based computer program called Agora (see www.ethicsandtechnology.com). This program enables (...) students to exercise their ethical understanding and skills extensively. The program makes it possible for students to participate actively in moral reflection and reasoning, and to develop the moral competencies that are needed in their later professional practice. The developers of the program have tried to avoid two traps. Firstly, they rejected, from the outset, a cookbook style of dealing with ethical problems that applied ethics is often taken to be and, secondly, they wanted to design a flexible program that respects the student’s as well as the teacher’s creativity, and that tries to engage students in moral reflection. Agora meets these requirements. The program offers possibilities that extend beyond the requirements that are usually accepted for case-exercises in applied ethics, and that have been realised in several other computer models for teaching ethics. In this article, we describe the main considerations in the development of Agora and the features of the resulting program. (shrink)

Newborn screening consists of taking a few drops of blood from a baby's heel in the first week of life and testing it for a list of disorders. In the United States and most countries in Europe, newborn screening programs began in the 1960s and 1970s with screening for phenylketonuria (PKU), a rare metabolic disease that causes severe and irreversible mental retardation unless treated before problems arise. As knowledge about rare diseases expanded and new screening technologies were introduced—such as the (...) tandem mass spectrometer and high‐performance liquid chromatography—the same blood sample could be used to test for a whole list of disorders. In general, screening programs in most countries have tended to expand, but in different countries they have expanded in different ways. Regulation also varies. In some states, screening is mandatory, whereas in others—Wyoming and Maryland—parents are asked for their informed consent. Germany and France have adopted an explicit informed consent procedure, whereas other European countries have a more informal “opt‐out” procedure that does not require signing an informed consent form. Whether newborn screening requires informed consent is an ongoing issue in bioethics. In this article, we will focus on the tension between informed consent and the problem of compliance in newborn screening. Asking for informed consent—allowing parents to opt out—is often thought to pose a threat to compliance. Building on the work of Onora O'Neill on informed consent and trust, however, as well as on work she coauthored with Neil Manson, we will argue that informed consent procedures may actually help maintain trust in newborn screening and may therefore support compliance. (shrink)

This paper starts from the presupposition that moral codes often do not suffice to make agents understand their moral responsibility. We will illustrate this statement with a concrete example of engineers who design a truck’s trailer and who do not think traffic safety is part of their responsibility. This opinion clashes with a common supposition that designers in fact should do all that is in their power to ensure safety in traffic. In our opinion this shows the need for a (...) moral philosophy that helps engineers to interpret their responsibility and think more critically about it. For this purpose we will explore the moral philosophy of Alasdair MacIntyre, which is particularly interesting because he locates the beginning of moral thinking in the daily practice of a profession. This is consistent with the history of moral codes, for codes are also the product of moral reflection by professionals. We will use MacIntyre’s philosophy to (1) explain what is wrong with the designers’ understanding of their responsibility and (2) show a possible way to bring their reflection to a more self-critical level. We will also inspect MacIntyre’s proposal critically. (shrink)