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Morality and the Nature of Law$
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Kenneth Einar Himma

Print publication date: 2019

Print ISBN-13: 9780198723479

Published to Oxford Scholarship Online: April 2019

DOI: 10.1093/oso/9780198723479.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 04 August 2021

The Conceptual Possibility of Moral Criteria of Legal Validity

The Conceptual Possibility of Moral Criteria of Legal Validity

Chapter:
(p.197) 8 The Conceptual Possibility of Moral Criteria of Legal Validity
Source:
Morality and the Nature of Law
Author(s):

Kenneth Einar Himma

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198723479.003.0009

This chapter gives a positive argument for the claim that the criteria of validity can incorporate moral constraints on the content of law. It thus concludes the defense of the Incorporation Thesis undertaken in the last two chapters. The argument in question constructs a model of an institutional normative system that validates all and only mandatory moral norms in a possible world. The chapter argues that we must do two things to show the conceptual possibility of a legal system with moral criteria of validity. First, we must produce a model of an institutional normative system in a world resembling this one that can plausibly be interpreted as having moral criteria of validity that clearly satisfies every condition plausibly thought to be necessary for the existence of law. Second, to ensure that the model establishes the Incorporation Thesis, it should be incompatible with an exclusivist interpretation.

Keywords:   Incorporation Thesis, moral constraints, moral norms, moral criteria, exclusivist interpretation

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