Does general theory of law exist without moral values?

AutorIveta Vitkute Zvezdiniene y Genovaite Rociene
Páginas369-374

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Introduction

To the main question of law theory – what is law? – it is difficult to answer because of insufficient theories (there are a lot of drawbacks of theories,
i.e. it is not possible to create one theory which would be able to answer to all questions). Nevertheless, since Antique various authors have modeled different legal systems based on legal theories. For example, natural law theory (Socrates, Aristotle, T. Aquinas, J. Finnis, R. Dworkin)1, legal positivist theory (Kelsen)2, theory of justice (corrective justice3, distributive justice4, justice as impartiality (called “justice as fairness,” J. Rawls5), justice as a law („justice entitlement“, Nozick6), utilitarianism, Nussbaum, Nagel’s theory of justice7, modern analytical jurisprudence (A. L. A Hart)8, sociological

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jurisprudence (R. Pound)9, historical jurisprudence (Savigny)10, realism, marxism, feminism concepts (A. Ross)11). Differences of these concepts are nature of values and performance direction. In different historical periods, they changed each other or have existed (or exist) at the same time. Not all theories equally recognize moral values (for example, according to prevailing positivism in a legal dispute moral standards can be usable only if the law allows it) 12. So, the question is why moral norms could be important in the legal system?

The aim of the paper - justify why the general legal theory is impossible without moral values in Western culture? The object of the paper. The moral values issues of application in developing and applying general theory of law.

Concept of general theory of law

The general theory of law is possible to understand in two ways. It could be term, which describes legal systems where dominated judicial precedents, like “common law” (for example, United States, United Kingdom) 13. But according to this article the term “general theory of law” reveals a practical aspect of application of legal theory. This is a legal system, which moral values for practical existence are necessary or not; it depends from creation of its theoretical basis. In accordance with moral values, the legal theory is creating from natural law to positive law. In addition, theory can dispose of a minimum content of morality, such as Hart modern analytical jurisprudence. Therefore, the definition of “legal theory” with the word “general” obtains a term expressing to all of Western culture individuals acceptable general legal system. Next it will be resolved only the issue of moral values scope.

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The concept of moral values

Moral is the principles and norms that regulate behavior of people. It would be expedient to state what moral values natural law theorists distinguishes in the context of general theory of law. One of the most famous representatives of modern natural law John Finnis, identifies exemplary list of fundamental goods (basic goods). Values are pursuing by every reasonable prudent person. Values has not derived from facts but directly has derived from mind:

x Life; x Knowledge; x Game;
x Aesthetic Experience; x Friendship; x Practical intelligence; x Religion14.

It is important to protect these fundamental goodness by law. Moral values protects against creation of immoral laws and it‘s application.

Need of moral values in general theory of law

Without moral values, the general theory of law cannot exist, because:

  1. To develop a general theory of law it is necessary to choose the values, which is necessary to create such conceptions of theory. This necessity of value-laden selection of concepts and terms for use in a general theory of social realities such as law is evidenced in the work of Max Weber, prophet of “value-free” social science. His account, for example, of forms of domination (Herrlichkeit) identifies three pure, central, characteristic types (ideal Typen): charismatic, traditional, and rational (bureaucratic, legal). However, the accounts of the first two types are almost entirely in terms of how they differ from the rational type, whose rationality is self-evident to Weber and his readers based on their own knowledge of human goods (basic aspects of human wellbeing) and related practical truths...

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