David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Ethical Theory and Moral Practice 3 (3):303-325 (2000)
In order to clarify the relationship between morality and law, it is necessary to define both concepts precisely. Cultural realities refer to concepts which are more specifically defined if we focus towards the genealogy of those realities, that is to say, their motivation, function and aim. Should we start from legal anthropology, comparative law and history of law, law arises as a social technique which coactively imposes ways of solving conflicts, protecting fundamental values for a society's co-existence. Values subject to being protected are proposed by morality, the latter making subordination of law to morality inevitable. This explains that a great number of modern constitutions include a reference to fundamental moral values, that is to say, they have explicitly positivised moral contents. Legal reasoning, at all levels and expressions, needs to appeal to the aforementioned values. Constitutional reasoning, international law, legislative activity and judicial practice are studied to verify the latter. This subordination of law to morality sets out a serious problem: moralities are cultural realities which are only valid for a specific society. In order for law not to fall in a not very rational legal relativism, law should not be subordinated to morality, but to ethics, the latter understood as cross-cultural morality. The Universal Declaration of Human Rights was a step forward in this sense.
|Keywords||law legal anthropology moral genealogy morality|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Roger Cotterrell (2000). Common Law Approaches to the Relationship Between Law and Morality. Ethical Theory and Moral Practice 3 (1):9-26.
Gerald Dworkin (ed.) (1994). Morality, Harm, and the Law. Westview Press.
Robert Alexy (2002). The Argument From Injustice: A Reply to Legal Positivism. Oxford University Press.
Matthew H. Kramer (2008). Where Law and Morality Meet. Oxford University Press.
Leon Petrażycki (2010). Law and Morality. Translation Publishers.
Baudouin Dupret (2011). Adjudication in Action: An Ethnomethodology of Law, Morality and Justice. Ashgate.
Bebhinn Donnelly-Lazarov (2011). The Figuring of Morality in Adjudication: Not so Special? Ratio Juris 24 (3):284-303.
Neil MacCormick (2007). Institutions of Law: An Essay in Legal Theory. Oxford University Press.
Added to index2009-01-28
Total downloads44 ( #75,700 of 1,724,889 )
Recent downloads (6 months)4 ( #167,173 of 1,724,889 )
How can I increase my downloads?