n Acta Juridica - The role of moral equality in legal argument
|Article Title||The role of moral equality in legal argument|
|© Publisher:||Juta Law Publishing|
|Publication Date||Jan 2004|
|Pages||18 - 43|
What is an 'analysis' of the nature of law? Let us suppose that it means that we have to find some convention amongst us that determines what amounts to correct or incorrect understandings of law. It would follow that we should regard something as law just because people - perhaps a significant group of people - accepted it as law, for this is what determination by convention means.
Note that this method would not help us in analysing morality. Murder is not murder, or wrong, simply because 100% of people believe it is. So a conventional account of murder is not possible: in fact, the very last reason we would offer to say murder was wrong is that everyone thought it was wrong. In justifying our condemnation of murder we would most likely give as reasons, 'a right to live', 'the wrongness of causing pain' or 'the sanctity of life' and so on, but not: '100% of people think it wrong'. If we did cite the beliefs of others as the major reason for our belief we would merely be parroting the views of others - for example, like saying 'murder is wrong because my father said so'.
People share moral views, true, but we do not think that they hold genuine moral convictions unless they have formed their view independently 'for themselves'. Given that we share so many moral convictions, it is not surprising that linguistic conventions have arisen expressing our shared views - about murder, for example. And so, by convention, 'murder' is the word we refer to correctly when contemplating an intentional killing motivated by personal material gain. (In other countries, there are different linguistic conventions to express exactly the same idea.) But it does not follow that the linguistic convention determines correct understanding, or that it determines the correct set of reasons that justify thinking this case to be murder. We can only say that there is a 'common understanding' that murder is wrong, and this means that each person independently holds a conviction that murder is wrong.
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