Two Models of Law and Morality
Associations, Vol. 3, No. 1, pp. 61-82, 1999
12 Pages Posted: 10 Sep 2009
Date Written: August 28, 2009
In this article, I argue that there are two partly incompatible models of law and, correspondingly, two models of morality. The product model is a static model; law and morality are primarily regarded as systems of norms, as bodies of rules and principles which can be formulated as propositions. The practice model concentrates on the dynamics of law and morality, and identifies law with the practices by which law or morality as a product is constructed, changed and applied. Each of these ideal-typical models focuses on certain characteristics of law or morality to which the other model is blind. Each model can partly incorporate the insights of the other model but not all; they are not fully compatible. Therefore, we must alternate between the models to get a full understanding. The distinction between the two models can improve our understanding of concrete phenomena, but also of theoretical issues. For example, it offers new perspectives in the debate on the relations between law and morality. If we focus on law as a practice, a separation between moral and legal argument is impossible. If we focus on law as a product, the separation thesis has a strong core of truth, but in the end it should be rejected. The positivist idea of a separation between law and morality can therefore be a useful stipulative assumption at most, but never an empirically valid thesis.
Keywords: law and morality, practice model, product model, separation thesis, natural law, legal positivism, Hart, Dworkin
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