https://orcid.org/0000-0001-7719-5051
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ABSTRACT
Most theorists agree that our social order includes a distinctive legal dimension. A fundamental question is that of whether reference to specific legal phenomena always involves a commitment to a particular moral view. Whereas many philosophers advance the ‘positivist’ claim that any correspondence between morality and the law is just a function of political circumstance, natural law theorists insist that law is intrinsically moral. Each school claims the crucial advantage of consistency with our folk concept. Drawing on the notion of dual character concepts, we develop a set of hypotheses about the intuitive relation between a rule’s moral and legal aspects. We then report a set of studies that conflict unexpectedly with the predictions by legal positivists. Intuitively, an evil rule is not a fully-fledged instance of law.
Disclosure Statement
No potential conflict of interest was reported by the author(s).
Notes
1 Elsewhere, Dworkin [Citation1978: 326] holds that the role of moral rights in the ‘calculation’ of legal rights is consistent with the possibility of ‘realistic cases’ of wicked rules that are unreservedly legal. Likewise, Finnis elsewhere suggests that a non-central case of law is simply a borderline case: each property may be ‘more or less instantiated … [such that] [l]aw, in the focal sense of the term, is fully instantiated only when each … is fully instantiated’ [1980: 277].
2 This also provided an opportunity to determine whether participants had been inclined to use legality as a proxy for morality (see Appendix: Analysis 3).
3 Our thanks to Vilius Dranseika, Joshua Knobe, Oisín Suttle and to two anonymous reviewers for their comments on earlier drafts. We are grateful also to participants at the 2020 Online Conference in Experimental Philosophy.