Ideal and Experience

N.E. Simmonds

in Law as a Moral Idea

Published in print August 2008 | ISBN: 9780199552191
Published online March 2012 | e-ISBN: 9780191701597 | DOI:
Ideal and Experience

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Jurisprudence can only properly be understood in light of the possibility that moral insight might be derived from historically informed reflection upon our practices and institutions, yet even a modest understanding of this possibility requires a considerable imaginative effort on our part. Ron Fuller regarded the Desiderata as constituting a conception of ‘law’, but seemed to acknowledge the possibility that this conception might be open to further refinement in the light of experience. The author then suggests that perhaps the judicial task is one of fidelity, not to a rule of recognition, but to the idea of law itself; and perhaps our understanding of that idea is deepened by the experience of pursuing it. He further suggests considering the revision of the Desiderata by the addition of a requirement that the rules should be enforced to reflect the intuition that a law should carry a kind of necessity, as they do not simply provide us with reasons for acting in a certain way since we think of them as possessing a kind of peremptory force.

Keywords: peremptory force; experience; fidelity; reflection; Ron Fuller; Desiderata

Chapter.  12013 words. 

Subjects: Jurisprudence and Philosophy of Law

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