Book contents
- Frontmatter
- Contents
- Preface
- Acknowledgments
- Part I The Dilemma of Legal Perspectivalism
- Part II Sources of the Dilemma of Legal Perspectivalism
- Part III The Moral Case for Legal Perspectivalism
- Part IV The Moral Case Against Legal Perspectivalism
- Part V Resolving the Dilemma of Legal Perspectivalism
- 12 Legal Practices Without Moral Combat
- Bibliography
- Index
12 - Legal Practices Without Moral Combat
Published online by Cambridge University Press: 05 November 2011
- Frontmatter
- Contents
- Preface
- Acknowledgments
- Part I The Dilemma of Legal Perspectivalism
- Part II Sources of the Dilemma of Legal Perspectivalism
- Part III The Moral Case for Legal Perspectivalism
- Part IV The Moral Case Against Legal Perspectivalism
- Part V Resolving the Dilemma of Legal Perspectivalism
- 12 Legal Practices Without Moral Combat
- Bibliography
- Index
Summary
If our best moral theory commits us to the correspondence thesis as applied to acts of punishment, then we cannot resolve the dilemma of perspectivalism by abandoning the principle of weak retributivism. We must conclude that justified offenders cannot be justifiably punished. But if the demands of morality require judges to set aside the law whenever its application will work an injustice, what becomes of our commitment to the rule of law, democracy, and the separation of powers? We are not governed by rules, the majority does not give itself its own laws, and powers are not checked and balanced if individual judges are ultimately entitled to set aside democratic enactments whenever their application would be unwise or immoral. If judicial anarchy is the price that we must pay for the preservation of the principle of weak retributivism, we indeed have cause to rethink the inviolability of that principle. But the work done in the previous chapters has put us in a position to articulate both consequentialist and deontological solutions to the dilemma of legal perspectivalism that preserve our systemic commitments without sacrificing the principle that the innocent should not be punished. While the previous chapters strongly suggested that we must give up our philosophical attachment to the notion that legal officials have rolerelative obligations to obey the law of the sort that assure the rule of law and democracy, they also gave us good grounds to believe that morality itself precludes significant judicial activism.
- Type
- Chapter
- Information
- Moral CombatThe Dilemma of Legal Perspectivalism, pp. 297 - 322Publisher: Cambridge University PressPrint publication year: 1999