Requirement‐Sensitive Legal Moralism: A Critical Assessment

28 Pages Posted: 21 Nov 2012

Date Written: December 2012

Abstract

Requirement‐sensitive legal moralism is a species of legal moralism in which the legitimacy of turning moral into legal demands depends on the existence of a legitimate moral requirement, producing a legitimate social requirement, which can then ground a legitimate legal requirement. Crucially, each step is defeasible by contingent or instrumental, but not intrinsic moral factors. There is no genuinely moral sphere (e.g., a private sphere) in which the law is not to interfere; only contingent, non‐moral factors can defeat this. Using William A. Edmundson's Three Anarchical Fallacies as a foil, this idea is spelled out; it is shown why considerations based on the harm principle, consent, and the fact of pluralism do not immediately defeat it, but several problems with Edmundson's account are examined to point out where the idea could be further developed.

Suggested Citation

Nielsen, Morten Ebbe Juul, Requirement‐Sensitive Legal Moralism: A Critical Assessment (December 2012). Ratio Juris, Vol. 25, Issue 4, pp. 527-554, 2012, Available at SSRN: https://ssrn.com/abstract=2178883 or http://dx.doi.org/10.1111/j.1467-9337.2012.00526.x

Morten Ebbe Juul Nielsen (Contact Author)

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