Law and Ethics: The Twin Disciplines
INTERDISCIPLINARY RESEARCH INTO LAW, Bart van Kink and Sanne Taekema, eds., Siebeck, 2009
Erasmus Working Paper Series on Jurisprudence and Socio-Legal Studies No. 10-02
28 Pages Posted: 14 Jul 2010
Ethics is a highly productive discipline for legal research. First, its subject, morality, and the academic discipline itself share important characteristics with law and legal research, respectively. Both disciplines are hermeneutic, normative, argumentative, and interdisciplinary. Second, there is an overlap in content and concepts. Third, as law is a normatively open practice, references to moral ideas and hence to exercises in ethics are often unavoidable. Therefore, we may regard legal research and ethics as twin disciplines: closely related and in many respects similar.
In the academic literature, we may find many studies on the subjects of law and morality. It is surprising, however, how little reflection there has been on the methodological issues and on the disciplines themselves. How should the disciplines be distinguished, and how can they be integrated? The central question of this paper, written for a volume on interdisciplinary legal research, concerns in what ways legal research can be improved and enriched by including ethics. I start with an elementary introduction to ethics, its subdisciplines, and how each of them may be useful for interdisciplinary legal research. A major issue in ethics that merits a special discussion is the search for justification. Hence, I discuss the differences and similarities between both the subjects of law and morality and the respective disciplines as well as the intertwinement between them. The article closes with a discussion of five types of interdisciplinary legal research using ethics, ranging from ethics as heuristics and as an auxiliary discipline, through comparative research and dialectical cooperation, to integrated research projects.
Keywords: Ethics, morality, reflective equilibrium, consensus, controversy, deontology, consequentialism, hermeneutics, pragmatism, foundationalism, constructivism, types of interdisciplinairy research, comparative law, argumentative practice, authority, procedure
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