Legal Judgment and Moral Reservation
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Description
Jeremy Waldron takes issue with a core premise of MacCormick’s post-positivistic characterisation of the relationship between law and morality, namely his “reservation principle”, which reconciles the autonomy of law from morality with the claim that the case for integration through law as an autonomous social medium does not require individuals to abandon their own morality. Building on some of Hart’s intuitions on the “thin” intrinsic morality of law and on his opening towards an inclusive legal positivism, MacCormick came to defend the “reservation principle” as a core principle of his political theory in Practical Reason in Law and Morality. Waldron challenges the scope of the reservation principle by considering whether it is justified in all cases, or whether, in some circumstances, it undermines law as an effective means of social integration. He does so by contrasting the implications of MacCormick’s reservation principle and Hobbes’ non-reservation principle in several circumstances. By doing so, Waldron not only problematises one key aspect of the post-positivistic turn of MacCormick (and of discursive theories of law in general, which have shifted the centre of gravity of legal systems from rules to principles), but also reveals the underpinning relationships between law and legal culture which, in themselves, may go a long way to account for MacCormick’s persistent defence of the central role of rules in democratic legal systems, as in the mass of circumstances in which law integrates society, it is rules that undertake the job.
Source Publication
Law and Democracy in Neil MacCormick's Legal and Political Theory: The Post-Sovereign Constellation
Source Editors/Authors
Agustín José Menéndez, John Erik Fossum
Publication Date
2011
Recommended Citation
Waldron, Jeremy, "Legal Judgment and Moral Reservation" (2011). Faculty Chapters. 1578.
https://gretchen.law.nyu.edu/fac-chapt/1578
