The Folk Concept of Law: Law Is Intrinsically Moral

Abstract

Most theorists agree that our social order includes a distinctive legal dimension. A fundamental question is 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 unexpectedly conflict with the predictions of legal positivists. Intuitively, an evil rule is not a fully-fledged instance of LAW.

Are There Cross‐Cultural Legal Principles? Modal Reasoning Uncovers Procedural Constraints on Law

“…This body of evidence points toward a promising avenue for further research: Potentially, by comparison to empirical reasoning about actual laws, modal reasoning about possible laws draws attention toward deeper criteria for category membership (i.e., could true laws lack these procedural properties? ), such as the purpose of laws (Rose & Nichols, 2020;Struchiner, Hannikainen, & de Almeida, 2020) or their moral dimension (Flanagan & Hannikainen, 2020;Knobe et al, 2013).…”

The experimental philosophy of law: New ways, old questions, and how not to get lost

“…Moreover, Flanagan and Hannikainen (2020) tested legal positivism against natural law theories that assume a substantive connection between law and morality. They presented lay participants with a hypothetical scenario about a fictitious state that enacted, in a formally valid procedure, a statute prohibiting interracial marriages (i.e., the substance of the law was immoral).…”

“…They presented lay participants with a hypothetical scenario about a fictitious state that enacted, in a formally valid procedure, a statute prohibiting interracial marriages (i.e., the substance of the law was immoral). Participants reported whether they felt a sense that this statue was a law (“superficial legality”) and whether it was truly a law according to the deeper meaning of the term (“deep legality”) (Flanagan & Hannikainen, 2020, p. 7; see also; Knobe et al., 2013). They denied that the immoral statute was truly a law and were divided regarding whether it was superficially a law.…”

Are There Cross-Cultural Legal Principles? Modal Reasoning Uncovers Procedural Constraints on Law

“…This body of evidence points toward a promising avenue for further research: Potentially, by comparison to empirical reasoning about actual laws, modal reasoning about possible laws draws attention toward deeper criteria for category membership (i.e., could true laws lack these procedural properties? ), such as the purpose of laws (Rose & Nichols, 2020) or their moral dimension (Flanagan & Hannikainen, 2020;Knobe et al, 2013).…”