Requirement-sensitive Legal Moralism: A Critical Assessment

TY - JOUR

T1 - Requirement-sensitive Legal Moralism

T2 - A Critical Assessment

AU - Nielsen, Morten Ebbe Juul

PY - 2012/12

Y1 - 2012/12

N2 - Requirement-sensitive legal moralism is a species of legal moralism in which the legitimacy of turning moral into legal demands depends on the existence of a legitimate moral requirement, producing a legitimate social requirement, which can then ground a legitimate legal requirement. Crucially, each step is defeasible by contingent or instrumental, but not intrinsic moral factors. There is no genuinely moral sphere (e.g., a private sphere) in which the law is not to interfere; only contingent, non-moral factors can defeat this. Using William A. Edmundson's Three Anarchical Fallacies as a foil, this idea is spelled out; it is shown why considerations based on the harm principle, consent, and the fact of pluralism do not immediately defeat it, but several problems with Edmundson's account are examined to point out where the idea could be further developed. Journal compilation.

AB - Requirement-sensitive legal moralism is a species of legal moralism in which the legitimacy of turning moral into legal demands depends on the existence of a legitimate moral requirement, producing a legitimate social requirement, which can then ground a legitimate legal requirement. Crucially, each step is defeasible by contingent or instrumental, but not intrinsic moral factors. There is no genuinely moral sphere (e.g., a private sphere) in which the law is not to interfere; only contingent, non-moral factors can defeat this. Using William A. Edmundson's Three Anarchical Fallacies as a foil, this idea is spelled out; it is shown why considerations based on the harm principle, consent, and the fact of pluralism do not immediately defeat it, but several problems with Edmundson's account are examined to point out where the idea could be further developed. Journal compilation.

U2 - 10.1111/j.1467-9337.2012.00526.x

DO - 10.1111/j.1467-9337.2012.00526.x

M3 - Journal article

SN - 0952-1917

VL - 25

SP - 527

EP - 554

JO - Ratio Juris

JF - Ratio Juris

IS - 4

ER -