Agency, Morality and Law

How does law possess the normative force it requires to direct our actions? This book argues that this seemingly innocuous question is of central importance to the philosophy of law and, by extension, of the very concept of law itself. It advances a position grounded in the secular natural law tradition, and in doing so addresses the two success criteria for this position head on: Firstly, that commitment to the existence of a supreme moral principle is required;Secondly, that any supreme moral principle must be identifiable through human reason. The book argues that these conditions are met by Alan Gewirth's Principle of Generic Consistency (PGC), which - through a dialectically necessary argument - locates the existence of universally applicable moral norms in the concept of agency. Given the very purpose of law is to guide action, legal norms must be located in a unified hierarchy of practical reason. It follows that, if law is to succeed in claiming to be capable of guiding our action, moral permissibility with reference to the PGC is a necessary condition of a rule's legal validity. This strong theory of natural law is defended throughout, both against moral sceptics and positions within contemporary legal positivism. European Academy of Legal Theory Monograph Series: Volume 17 "How does law possess the normative force it requires to direct our actions? This book argues that this seemingly innocuous question is of central importance to the philosophy of law and, by extension, of the very concept of law itself. It advances a position grounded in the secular natural law tradition, and in doing so addresses the two success criteria for this position head on: Firstly, that commitment to the existence of a supreme moral principle is required; Secondly, that any supreme moral principle must be identifiable through human reason. The book argues that these conditions are met by Alan Gewirth's Principle of Generic Consistency (PGC), which – through a dialectically necessary argument – locates the existence of universally applicable moral norms in the concept of agency. Given the very purpose of law is to guide action, legal norms must be located in a unified hierarchy of practical reason. It follows that, if law is to succeed in claiming to be capable of guiding our action, moral permissibility with reference to the PGC is a necessary condition of a rule's legal validity. This strong theory of natural law is defended throughout, both against moral sceptics and positions within contemporary legal positivism."--Publisher's website Contents 8 Introduction 10 1. Key Positions in the Debate 11 2. The Nexus of Normative Disagreement 15 PART 1: ESTABLISHING THE PGC AS A SUPREME MORAL PRINCIPLE 20 1. The PGC as a Supreme Moral Principle 22 1. Introduction 22 2. The Dialectical Necessity of Morality 24 3. Philosophical Criticisms of the PGC 35 4. Conclusion 49 2. The PGC in Raz's Hierarchy of Reasons 50 1. Introduction 50 2. Raz on the Nature of Reasons 52 3. Resolving Conflicts Between Reasons 66 4. Conclusion 78 Part 2: Establishing Permissibility with Reference to the PGC as a Necessary Condition of a Rule’s Legal Validity 80 3. Agency, Morality and Law 82 1. Introduction 82 2. The PGC and Legal Norms 83 3. The Operation of the PGC Within a Legal System 99 4. Conclusion 108 4. Raz and Legitimate Legal Authority 109 1. Introduction 109 2. Raz, Legal Authority and the Contingency Thesis 109 3. Authority to Make Law and the Sources Thesis 117 4. Systemic Functionality 126 5. Obligations to Obey the Law 129 6. Conclusion 132 5. Contemporary Inclusive Positivism 134 1. Introduction 134 2. David Lyons and Formalism 134 3. Incorporationism and Jules Coleman 139 4. The Moderate Incorporationism of Matthew Kramer 154 5. Conclusion 165 Conclusion 167 Bibliography 173 Index 178 "How does law possess the normative force it requires to direct our actions? This book argues that this seemingly innocuous question is of central importance to the philosophy of law and, by extension, of the very concept of law itself. The book demonstrates that the normative force of law has a necessary connection to morality in two ways: Firstly, a commitment to the concept of moral truths is required; Secondly, these moral truths must be identifiable through human reason. The book argues that these conditions are met by Alan Gewirth's Principle of Generic Consistency, which locates the existence of universally applicable moral norms through a dialectically necessary argument grounded in the truism of noumenal agency. It demonstrates that a universalised instrumental reason necessarily serves as a categorical imperative to bind all agents to adhere to its absolute and exclusionary requirements against behaviour that would be non-compliant."-- Provided by publisher