Moral Diversity

3 Key excerpts on "Moral Diversity"

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  eBook - ePub

  The Faces of Virtue in Law

  • Amalia Amaya, Claudio Michelon, Amalia Amaya, Claudio Michelon(Authors)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  45 It is more coherent because the same analysis applies across all characteristically legal regimes, whether morally benign or corrupt. And it is more ecumenical because, again, it avoids premising its account of the nature of law on any substantive moral claims. This superior descriptive power of legal positivism combines with a second advantage, which is that it makes the moral assessment of actual and potential legal regimes clearer and easier than natural law theory does. By separating the ontological analysis of law from its moral assessment, legal positivism improves our ability to isolate the relevant moral considerations and helps us to make a clear-headed judgement about the best course of action in the face of the law. The ecumenism of legal positivism allows us to say that, while some legal systems may instantiate the value of integrity, other legal systems may instantiate the value of freedom as independence, and others may represent an aspect of the ideal of practical reasonableness (and of course there may be many other intrinsic values that we have not mentioned). In our view, an approach that enables this kind of pluralistic understanding of the potential intrinsic values that might be instantiated by different particular legal systems is to be preferred over the restrictive monism of the natural law approach.

  The point to take away here is that law can but need not be intrinsically moral. If we have a duty to follow a given law or support a given legal system it is only because morality says that we have a duty to follow that law or support that system in light of its particular virtues. And the best way to determine what these virtues are is to work out what the law in a particular legal system is in a way that does not pre-empt or presuppose any of the relevant moral issues.

  7.  Conclusion

  This essay has shown that the answer to our question – Can the law help us to be moral? – is at best mixed. The law has the potential, in principle, to guide us morally through its instructions, its examples, and its motivational prompts. At its best, it also has the potential to instantiate intrinsic moral value in the world. But there is nothing necessarily

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  eBook - ePub

  Legal Practice and Cultural Diversity

  • Ralph Grillo, Roger Ballard, Alessandro Ferrari, André J. Hoekema, Marcel Maussen, Prakash Shah(Authors)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  how to ameliorate the position of vulnerable minorities within religious minorities (and within religious and secularist majorities!), we have to probe one or other variety of institutional, legal pluralism or joint governance that is compatible with minimal morality or with liberal-democratic morality, minimally understood.

  I Legal Regimes and Vulnerable Minorities

  Drawing on discussions on varieties of ‘legal pluralism’ in anthropology or sociology of law (e.g. Benda-Beckmann 2002, Hoekema 2004), I distinguish four analytically different but actually overlapping legal orders or regimes, which are relevant for fair normative comparisons.

  (a) Informal practices of communal/religious ‘law and jurisdiction’: characterized by (i) oral transmission (either no written sources of law or nearly no use or reference to them); (ii) no organizational/institutional and/or role differentiation (rules are interpreted/changed and applied in decisions (case by case) by either communal assemblies and/or ‘wise men’); (iii) no distinction between ethno-cultural and religious traditions, rules, customs, practices; and (iv) no distinction between different areas of law (criminal, procedural, civil).

  (b) Formalized and institutionalized practices of communal/religious law and jurisdiction: characterized by (i) written sources of law (codes and/or case-law); (ii) organizational and institutional differentiation (courts); (iii) role differentiation (judges, kadi) and legal education and training; (iv) distinctions between religious law and ethno-communal customs/practices (e.g. female genital mutilation, ‘honour killing’) and between criminal, procedural and private law.

  (c) Communal/religious ‘law and jurisdiction’ in matters of marriage and divorce that explicitly ask for ‘legal recognition’ and support by state law. This regime has different varieties that should be clearly distinguished from each other: separate religious codes and courts; international private law, and all varieties of existing or proposed officially recognized arbitration.

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  A Student's Guide to the Study of Law

  • Gerard V. Bradley(Author)
  • 2014(Publication Date)
  • Intercollegiate Studies Institute

    (Publisher)

  Casey “Mystery Passage” slipped subjectivism into law’s moral foundation, with ill effects all around. Flipping from the “good” to “bad” man’s way of looking at law introduces moral relativism. And that will not do very well, either.

  The challenge is to retain the internal view of law without denying what is true about the external perspective of law. Can we integrate the “ought” and “is” of law in one stable story about law?

  Yes, we can. In fact, we have already done so: our whole first chapter described how positive law is a huge cultural artifact—a product (if you will) made for people and presented to the community as a given. But we saw, too, that this edifice is dedicated to serving real moral ends: what law is for, its purpose. All we need to do now is extend and refine the point of chapter 1 .

  John Finnis writes that “for the sake of justice and a flourishing community of people in good [moral] shape . . . we need the set of rules, arrangements, processes, institutions and persons with responsibility and thus authority, the set [we commonly call the] law.” That “law”—say, the law of Indiana or of the United Kingdom—is a vast cultural artifact posited by people to order their common life. For the sake of justice we need these rules to be “clear, general, stable, capable of being complied with and explicable to any fair-minded person.”36 To put the point differently still: law works only where it achieves the appearance of solidity, as if it were a nonnegotiable fact of social interaction. Additionally, law only works where people voluntarily accept it and internalize it.

  Legal authority is thus a kind of moral authority. Legal reasoning is a kind of moral reasoning. Legal norms are good (that is, moral) reasons for acting—all because law is part of the answer to the question, What, all things considered, is the right thing for me to do? Law contributes to resolving that question by offering direction which, presumptively or prima facie, we are morally obliged to accept. This presumption of law’s moral bindingness can be defeated, however, and is overcome in instances where the law would direct me to do what morality holds I must never do. Thus, there can be morally justified lawbreaking.37

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