The Morality of Law
This thesis defends a unified theory of morality and law: the one-system view or the normative continuity between morality and law. The one-system view contends that law and morality belong to one normative domain: the moral domain or the domain of practical reason. As part of the moral domain, the law is and ought to be made, interpreted and applied within the limits of moral justification. Legal duties are moral duties because the law belongs to the moral domain; consequently, what cannot be morally justified cannot be justified legally. The possibility of having more than one morally right answer to a legal case does not contradict the moral thesis. However, it rules out the possibility of a law that cannot be morally justified. Contrary to legal positivism, which argues that anything, including wicked decrees, can attain the status of law, this thesis denies the legal standing to laws that cannot be morally justified.
Acknowledging or denying the status of law to ‘wicked laws’ is the bone of contention between legal positivism and legal non-positivism. There seems to be no middle ground and no possibility of sublating these two positions into a higher synthesis. One of the virtues of legal positivism is that it has highlighted the autonomy of positive law, which is inevitable and morally necessary for the validity of the law. Our disagreement is about the status of the morality of law: is law moral? I argue that the non-positivist legal theory defended here avoids the problems and the shortcomings of legal positivism that arise from denying the morality of law. The thesis, therefore, squarely situates itself within the tradition of non-positivism.
The thesis has four chapters. The first chapter presents and criticises the legal positivist understanding of the normativity of the law. The second chapter addresses the question of the morality of law through Dworkin’s analysis of the relationship between law and morality. Finally, chapters three and four discuss the questions of the legal status of wicked laws and the justification for disobeying the law.
PublisherUiT Norges arktiske universitet
UiT The Arctic University of Norway
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