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The Moral Justification of Law

March 10, 2023
By admin In Gambling

The Moral Justification of Law

Law

Law is the system of rules and regulations that govern the conduct of people in a given society. In legal practice, this includes both private and public law. The term can also refer to the entire set of laws in a particular country or region, such as the United States’s.

The defining characteristics of “law” involve its enactment by a sovereign authority, its obligation of obedience by all subject to that authority, and its enforcement by the authority through penalties and sanctions (Raz 1970; MacCormick 1977). In addition to these, law implies the moral justification of the normative category of “right”.

A legal right is a normative category whose form (claims, privileges, powers, immunities) and function (to determine what parties may or cannot do) correspond to the “right” language of law (Lyons 1982; Sumner 1987). These are often called claim-rights, privilege-rights, power-rights, and immunity-rights, depending on whether they are active (Lyons 1970; Sumner 1987: 28-29) or passively enjoyed by right-holders (Waldron 1981; Kramer 1998; Enoch 2002).

It is important to distinguish between rights as a formalistic rhetoric and legal reasons for a particular determination. This distinction has implications for the nature of the moral justification of a legal right.

As a rule, justifications of legal rights must be grounded in some sort of underlying reason. The underlying reason might be either a legal norm grounding the right–or its antecedent–or it might be a broader normative context that provides a general justification for the right–or its preemptory grounding.

Some of the more prominent legal justifications include the existence of a positive duty to act in accordance with a law (e.g., a legal duty to prevent violence against the innocent), the existence of an exception (e.g., a legal exception to the rule that murder is against the law) or the existence of a special cause of action for violating a right (e.g., the infringement of a specific property right).

In addition to being justifications for positive law, these legal justifications are sometimes used as grounds for bringing about social change. For example, a social worker from a domestic violence team might use human rights arguments to get new accommodation for a family who were at risk of serious harm from a violent ex-partner.

There are other kinds of moral justifications for a legal right, such as a positive obligation to protect the life or health of a person. However, these are not always regarded as valid justifications of a legal right.

There is an extensive literature on the question of how and why we should justify legal rights, and what these normative categories ought to contain. It is a question that has attracted the attention of a diverse range of philosophers and jurists. The most influential are Joel Feinberg and Stephen Darwall, who are credited with introducing the idea of demand-rights into the literature on rights.

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