The Dynamics of Law and Morality: A Pluralist Account of by Wibren van der Burg

By Wibren van der Burg

This booklet investigates the dynamic intertwinement of legislations and morality, with a spotlight on new and constructing fields of legislations. Taking as its place to begin the debates and mutual misunderstandings among proponents of alternative philosophical traditions, it argues that this theoretical pluralism is best defined as soon as legislations is approved as an basically ambiguous notion. carrying on with on, the ebook develops a powerful concept of legislation that raises our grab on worldwide felony pluralism and the dynamics of legislations. This concept of criminal interactionism, encouraged by way of the paintings of Lon Fuller and Philip Selznick, additionally is helping us to appreciate obvious anomalies of recent legislations, corresponding to overseas legislation, the legislation of the eu conference on Human Rights and horizontal interactive laws. In an ecumenical method, criminal interactionism does justice to the dear center of fact in normal legislation and criminal positivism.Shedding new gentle on widely used debates among authors similar to Fuller, Hart and Dworkin, this ebook is of worth to teachers and scholars drawn to felony thought, jurisprudence, felony sociology and ethical philosophy.

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42 Beauchamp and Childress, Principles of Biomedical Ethics, 1994 (fourth edition), p. 40 (this section was dropped from the sixth edition of 2008). It is interesting to note that, although they assert the centrality of principles and rules, at the same time they characterize biomedical ethics as an enterprise. This illustrates the fact that the two models are idealtypical and that almost every interesting author, including those who clearly focus on morality as a product, tries to combine each model with some insights from the other.

6. 13 Scott, Seeing Like a State, p. 80. 14 Scott, Seeing Like a State, p. 262. 15 Scott, Seeing Like a State, p. ’ Two Basic Models of Law and Morality 23 Law as a Product The model of law as a product is probably the most familiar among lawyers and the public alike. A question concerning the law of intellectual property will usually be answered with a reference to statutes and judgments by courts, or with the formulation of some rules and principles. In most law schools in the Civil Law tradition, this certainly is the predominant model: students have to learn law from studying the substance of statutes and precedent.

It may be that in the end such an arbitrary exercise of power is the best we can come up with. However, I will choose a different strategy: to accept the fact of theoretical pluralism, and try to understand it. How can it be that the controversy (or better yet, the four controversies) seems intractable? There must be some more fundamental explanation. It is this explanation that I am after in this and the next chapter. Two Basic Models of Law The explanation for the existence of intractable controversies in legal philosophy is to be found in the fact that phenomena such as law can be modelled in at least two partly incompatible ways.

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