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.
Highlights
Why is law not the “gunman situation writ large”? Does it make a difference to the concept of law that our rulers usually claim that they are coercing us for our own good? Is it essential to law that the use of force is always accompanied by a moral claim, which is to be objectively attributed to law itself? If the law claims to be morally justified in its interference with our lives, what kind of moral justification would be appropriate to it? Is it enough that the law claims to do the right thing? This paper is a reflection on these questions
This being so, the fourth and final section deals with the thesis shared by Alexy, Soper, and Raz that the attribution of a moral claim to law is necessary for the distinction between the law and the “gunman situation writ large”
What law needs to claim before its citizens if it claims to be morally justified at all, and not merely stronger than ordinary citizens in enforcing its decisions, is that citizens qua citizens are not entitled to decide whether the norm is just and to act on their own judgment
Summary
Why is law not the “gunman situation writ large”? Does it make a difference to the concept of law that our rulers usually claim that they are coercing us for our own good? Is it essential to law that the use of force is always accompanied by a moral claim, which is to be objectively attributed to law itself? If the law claims to be morally justified in its interference with our lives, what kind of moral justification would be appropriate to it? Is it enough that the law claims to do the right thing? This paper is a reflection on these questions. I argue that, despite being right in maintaining that the law’s moral claim would have to be a claim to authority, Raz is wrong in defending that the law necessarily makes such a claim. This being so, the fourth and final section deals with the thesis shared by Alexy, Soper, and Raz that the attribution of a moral claim to law is necessary for the distinction between the law and the “gunman situation writ large”. Following in the footsteps of Frederick Schauer and Matthew Kramer, I argue that this essential part of Alexy’s, Soper’s, and Raz’s jurisprudence is misguided
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