Law’s Autonomy and Moral Reason

Jack Clayton Thompson

doi:10.3390/laws8010006

Abstract

This paper intends to set out an argument to Legal Idealism and a thesis that holds law and morality as necessarily connected. My focus is on deconstructing the Positivist argument to the Autonomy Thesis and beginning to reconstruct it through the application of morality to law’s autonomous authority. My aim, ultimately, is to demonstrate how, through the concept of law, practical reason might explain the related (and overlapping) notions of legitimacy, authority, and the obligation to obey through the necessary connection of law and morality. That is, I intend to demonstrate that morality both survives and remains identifiable (transparently) following the process of metamorphosis into institutionalised practical reasoning. If this is so, the authority of and obligation to law is simultaneously a form of morally rational obligation. In the response to the Positivist argument that moral values are incommensurate, I will show that this commensurability can be determined ‘artificially’ by a system of institutionalised reasoning (i.e., the law); this is to say, if I can show that the Legal Positivist argument is left incomplete without some explanation of moral values underpinning it, I need not to show that a specific, defensible moral truth or principle is required, but that an artificial weighting of abstract moral principles is sufficient

Highlights

This paper holds that law and morality are necessarily connected
Returning to the Autonomy Thesis, we find that the logic of its reasoning is threatened, by the demarcation between legal norms that are supposedly autonomous of political morality and the interpretation of those norms that are to rely on non-legal, and non-autonomous, reasons for such interpretations
I found that stage (iv) of the argument for autonomy was an impediment to the completion of the Institutionalised Autonomy Theory unless it is possible to devise some scheme for the considerations that interpretations should take account of (Postema 1996, p. 110)—in the absence of such, we find ourselves at an impasse, if law is to be authoritative in the scheme of practical reasoning it must respond to the practically reasonable priorities of value where they are apparent, the system is an unreasonable authority from moral rationality (Palmer Olsen and Toddington 1999a, p. 147)

Summary

Introduction

This paper holds that law and morality are necessarily connected. Its argument is located within what is generally referred to as Legal Idealism. Laws 2019, 8, 6 norms, are seen to possess a legitimate priority—an exclusionary validity—as against other norms in that society It is this relation to practical reason that defines the ambit of this paper, and may be used to explain the related (and overlapping) notions of legitimacy, authority, and the obligation to obey through the necessary connection of law and morality A coherent legal idealism suggests that a rational understanding of the conception of the legal enterprise leads us to the conclusion that rules posited as laws ought to meet certain demands of morality if they are to achieve validity as laws Legal validity, in this sense, and when ascribed to a rule or system of rules, implies a moral justification to promulgate and enforce, and implies the existence of an obligation to obey. This argument is significant because, if accepted, it demonstrates the necessity of incorporating, at the very least, abstract moral principles into the functioning and justification of institutionalised reasoning without the need to demonstrate that objective moral principles provide an exhaustive list of commitments

The Continuum of Practical Reason

Critiquing the Autonomy Thesis

Constructing a Transparent Autonomy Thesis

Interpretation and Incommensurability

Artificial Weighting in Artificial Reasoning

Conclusions