Download Liability and Responsibility: Essays in Law and Morals by R. G. Frey, Christopher W. Morris PDF
By R. G. Frey, Christopher W. Morris
This selection of modern essays through a bunch of famous philosophers and felony theorists covers quite a few themes within the philosophy of legislation, targeting matters referring to legal responsibility in agreement, tort, and felony legislations. The ebook is split into 4 sections. the 1st offers a conceptual assessment of the problems at stake in a philosophical dialogue of legal responsibility and accountability. the second one, 3rd, and fourth sections current, in flip, extra exact explorations of the jobs of notions of legal responsibility and accountability in contracts, torts, and punishment. the gathering not just offers one of the most tough paintings being performed in criminal philosophy this day, it additionally demonstrates the interdisciplinary personality of the sphere of philosophy of legislation, with individuals bearing in mind contemporary advancements in economics, political technological know-how, and rational selection conception. This thought-provoking quantity may also help to make clear the underexplored floor that lies among legislations and morals.
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There would probably be something in the state constitution I could cite as conﬂicting with the statute, thus entailing its unconstitutionality. Its injustice and immorality needn't be mentioned. NL: If you were to refer to the statute's injustice or inhumanity, would you be going outside of the law for your justiﬁcation? LP: Yes, I would. I think the conceptual distinction between law and morality is too useful to undermine as you keep trying to do. But as I said before, I might nevertheless choose to go outside the law in violation of my legal duty, because when I take into account all the prima facie obligations to which I am subject as a human being, my judicial duty (which is also one of my moral duties) may be outbalanced by the other PFOs that have a bearing in those circumstances on my decision.
So the position of the morally conscientious legal positivist judge in these examples is an unenviable one. Would the morally conscientious judge who is an advocate of natural law theory be in any better a position? NL: Well, I for one, would be much better off. In my theory, when I appeal to natural justice, I am appealing to something internal to the law. I do not have to concede, as you would, that contrary to my oath I am going outside the law for considerations that will support my legal conclusions.
For the positivist there is a conﬂict of prima facie obligations: the PFO of obedience to valid law (here represented as weakly as possible) versus the PFOs (all of them here at maximum strength) to oppose injustice, to prevent suffering, to speak truth, and more. It is a one-sided conﬂict, Hart would say, but a conﬂict for all that, NATURAL LAW 25 and to characterize it in that fashion is to exercise the virtue of candor. Fuller, on the other side, would tally the score as 10–0 against obedience.