THE TWO MORALITIES

  • Content of chapters – because unhappy with existing literature about relation between law and morality. Two major deficiencies:
    • 1. Failure to clarify the meaning of morality itself. It is assumed we all know what morality means! But that is not the case.
      • In chapter 1, I try to redress this by highlight distinction between morality of duty + morality of aspiration.
    • 2. Neglect for Morality that makes law possible. Focus on “legal justice”, treat like alike, but little recognition that problem thus adumbrated is only one aspect of much larger problem – clarifying directions of human effort essential to maintain any system of law, even one whose ultimate objectives may be evil.
  • Chp. 3 attempt to bring the analysis of the first two chapters into relation with various schools of legal philosophy.
  • Chp4 seeks to show how proper respect for internal morality of law limits kinds of substantive aims that may be achieved through legal rules – closes by showing how something like a substantive “natural law” may be derived from the morality of aspiration.

The Moralities of Duty and Aspiration as seen in abogados de accidentes de carro

  • Distinction between morality of aspiration and morality of duty
    • Morality of aspiration most plainly exemplified in Greek philosophy: it is the morality of the Good life, or excellence, of fullest realisation of human powers.
    • May be overtones of duty to get there, and if fail to realize fullest capacities, he would be found wanting, not for being recreant to duty, but for shortcoming, not wrongdoing.
    • Rather than right or wrong, we have beseeming conduct.
  • Morality of aspiration starts at TOP of human achievement, morality of duty starts at BOTTOM (ie, lays down basic rules necessary for society)
    • MOD = Old Testament morality “thou shall”, “thou shall not”. Condemns men for failing to respect basic requirements of social living.
  • Metaphor to help distinguish MOD and MOA:
    • MOD = rules of grammar
    • MOA = rules of what is sublime and elegant composition of writing. (these are more vague that basic rules of grammar)
  • How would moralities view gambling?
    • MOD
      • hypothetical moral legislator would have to decide if gambling harmful so as to refrain from engaging in it.
      • Would realise that marginal utility not good with gambling.