The Morality of Aspiration: A Neglected Dimension of Law and Morality
REDISCOVERING FULLER: ESSAYS ON IMPLICIT LAW AND INSTITUTIONAL DESIGN, Willem J. Witteveen, Wibren van der Burg, eds., pp. 169-192, Amsterdam: Amsterdam University Press
Erasmus Working Paper Series on Jurisprudence and Socio-Legal Studies No. 09-03
14 Pages Posted: 5 Sep 2009
Date Written: August 27, 2009
In Fuller's The Morality of Law, an important theme is that of the difference between a morality of duty and a morality of aspiration. Understanding both as a continuum illuminates professional morality by showing, for instance, how a good doctor obeys both certain minimum ethical requirements ("duty") and aspires toward ethical excellence beyond the minimum ("aspiration"). The domain of the morality of aspiration contains ideals, principles and policies. These can be translated into each other, becoming more concrete when they enter the domain of the morality of duty, where they take shape as rules and decisions. This analytical framework is then applied to the problem of eunomics by asking what the functions and limits of law are in modern society. The protective and instrumental functions of law can be seen as two dimensions that permeate morality and law in the spheres of both duty and aspiration. The regulatory function is typically connected with the morality of duty. The communicative function of law, on the other hand, is most at home in the sphere of aspiration. If legislation tries to formulate some ideals, or principles or policies directly, then the communicative function is central. This communicative function of law seems to be intimately linked up with Fuller's idea of the one central indisputable principle of natural law supplementing his procedural natural law: "open up, maintain, and preserve the integrity of the channels of communication by which men convey to one another what they perceive, feel, and desire.
Keywords: aspiration, duty, ideals, principles, policies, rules, Fuller, professional morality, instrumental legislation, communicative function, regulatory function, eunomics, natural law
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