Kriterion (May 2020)

LAW AND MORAL JUSTIFICATION

  • Andrea Faggion

DOI
https://doi.org/10.1590/0100-512x2020n14503af
Journal volume & issue
Vol. 61, no. 145
pp. 55 – 72

Abstract

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ABSTRACT Many prominent legal philosophers believe that law makes some type of moral claim in virtue of its nature. Although the law is not an intelligent agent, the attribution of a claim to law does not need to be as mysterious as some theorists believe. It means that law-making and law- applying acts are intelligible only in the light of a certain presupposition, even if a lawmaker or a law-applier subjectively disbelieves the content of that presupposition. In this paper, I aim to clarify what type of moral claim would be suitable for law if law were to make a claim to be morally justified. I then argue that legal practice is perfectly intelligible without moral presuppositions - that is, that the law does not necessarily make moral claims.

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