From Ethical Analysis to Legal Reform: Methodological Reflections on Ethical Transplants in Pluralist Contexts

Wibren van der Burg, ‘From Ethical Analysis to Legal Reform: Methodological Reflections on Ethical Transplants in Pluralist Contexts’, De Ethica 7(2022)1, 41–59 https://doi.org/10.3384/de-ethica.2001-8819.227141

21 Pages Posted: 4 Mar 2022 Last revised: 19 Oct 2022

See all articles by Wibren van der Burg

Wibren van der Burg

Erasmus School of Law, Erasmus University Rotterdam

Date Written: February 28, 2022

Abstract

Ethical analysis may result in recommendations for legal reform. This article discusses the problem of how academic researchers can go from ethical normative judgments to recommendations for law reform. It develops a methodological framework for what may be called ‘ethical transplants’: transplanting ethical normative judgments into legislation. It is an inventory of the issues that need to be addressed, but not a substantive normative theory. It may be especially helpful for Ph.D. students and beginning researchers working in interdisciplinary projects combining ethical and legal analysis.

I distinguish three stages in the process from ethics to law: translation, transformation, and incorporation. The latter stage can be divided into three clusters of issues, these being legal, empirical, and normative ones. Most of the philosophical literature on the legal enforcement of morals focuses on the normative issues. My aim is to broaden the perspective in two ways. First, I show that this is only one relevant issue and that we should address legal and empirical issues and the processes of translation and transformation as well. Second, I argue that we should pay more attention to pluralism and variation.

Keywords: applied ethics, legal reform, ethical transplants, pluralism, methodology, ethical triangulation

Suggested Citation

van der Burg, Wibren, From Ethical Analysis to Legal Reform: Methodological Reflections on Ethical Transplants in Pluralist Contexts (February 28, 2022). Wibren van der Burg, ‘From Ethical Analysis to Legal Reform: Methodological Reflections on Ethical Transplants in Pluralist Contexts’, De Ethica 7(2022)1, 41–59 https://doi.org/10.3384/de-ethica.2001-8819.227141 , Available at SSRN: https://ssrn.com/abstract=4045684 or http://dx.doi.org/10.2139/ssrn.4045684

Wibren Van der Burg (Contact Author)

Erasmus School of Law, Erasmus University Rotterdam ( email )

PO Box 1738
3000 DR Rotterdam
Netherlands

HOME PAGE: http://www.wibrenvanderburg.nl

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