Morality, Politics, and Law
Publisher: Kendall Hunt
Published: 2010
Description: This work answers two questions: What are moral obligations, and what are legal obligations?
In Part 1 of this two-part work, it is argued that moral imperatives are biological imperatives. Sometimes such imperatives concern the welfare of one's species (hence our moral obligations), and sometimes they concern own welfare (hence our moral rights).
It is argued that ethical egoism is the only ethical system that, if complied with, satisfies imperatives of both kinds. Egoism obviously satisfies organism-level imperatives. At the same time, because species-level imperatives tend to be embedded in organism-level imperatives (cf. the urge to reproduce), a certain altruism is inherent in genuine egoism. The altruism in question is not the Christ-like altruism of self-abasement---which is merely hatred of humanity directed towards oneself---but the altruism of the wise statesman, who knows that he is only as wealthy as the poorest of his subjects. And the egoism in question is not the Stalin-like egoism of global destruction---which is merely hatred of oneself directed towards humanity---but is that of the wise potentate, who acquires lasting prosperity by enriching his subjects, unlike the unwise potentate, who acquires short term prosperity by impoverishing them.
In Part 2, it is argued that legality is to be understood in terms of morality---more specifically, that laws are governmental assurances of protections of rights and, consequently, that the concepts of law and legal obligation must be understood in moral terms. There are, of course, many immoral laws. But once certain basic truths are taken into account – in particular, that moral principles have a “dimension of weight”, to use an expression of Ronald Dworkin’s, and also that principled relations are not always expressed by perfect statistical concomitances – the existence of iniquitous laws poses no significant threat to a moralistic analysis of law. Special attention is paid to the debate between Ronald Dworkin and H.L.A. Hart. Dworkin’s over-all position is argued to be correct, but issue is taken with his argument for that position. Hart’s analysis is found to be vitiated by an impoverished conception of morality and also of the nature of government.
Our analysis of law enables us to answer three questions that, at this juncture of history, are of special importance: Are there international laws? If not, could such laws exist? And if they could exist, would their existence necessarily be desirable? The answers to these questions are, respectively: “no”, “yes”, and “no.”
Our analysis of law enables us to hold onto the presumption that so-called legal interpretation is a principled endeavor, and that some legal interpretations are truer to existing laws than others. At the same time, it accommodates the obvious fact that the sense in which a physicist interprets meter-readings, or in which a physician interprets a patient’s symptoms, is different from the sense in which judges interpret the law. So our analysis of law enables us to avoid the extreme views that have thus far dominated debates concerning the nature of legal interpretation. On the one hand, it becomes possible to avoid the cynical view (held by the so-called “legal realists”) that legal interpretation is mere legislation and that no legal interpretation is more correct than any other. On the other hand, it becomes possible to avoid Blackstone’s view (rightly descried by Austin as a “childish fiction”) that judges merely discover, and do not create, the law.