Chapter

Judging: Legal Cases and Moral Questions

Neil MacCormick

in Practical Reason in Law and Morality

Published in print December 2008 | ISBN: 9780198268772
Published online May 2009 | e-ISBN: 9780191713071 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198268772.003.0011

Series: Law, State, and Practical Reason

 Judging: Legal Cases and Moral Questions

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This chapter takes up an issue left hanging from earlier in the book: as autonomous moral agents, do we more resemble legislators or judges, so far as concerning some parallel with agencies of state? The answer given here is, unequivocally, ‘judges’ — in which answer lies another reason for trying to adapt Kant towards Smith. The chapter explores the difference and the similarity between moral and legal decisions about specific issues. It discusses two leading legal cases to answer the moral problem that lies at their core. In one case, it suggests that moral reasoning yields a different solution to the legal one determined by the judges, in the other it finds parallelism but not identity between the moral and the legal decision that seems right. Practical reason is at work, both in legal judgement and in moral judgement. But these are two species of one genus, not simply species and subspecies.

Keywords: judgements; judges; reasoning; legal decision; practical reason; moral judgement

Chapter.  12025 words. 

Subjects: Jurisprudence and Philosophy of Law

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