|Edited by Wojciech Sadurski
Amsterdam-Atlanta, GA: Rodopi, 1991
Meta-theorizing is represented in this volume, inter alia, by an essay by the late Professor Jerzy WRÓBLEWSKI on mutual relations between moral and legal reasoning. Wróblewski traces a number of ways in which moral values affect legal reasoning: for example, he shows how moral values influence the occurrence of interpreters’ doubts about the meaning of a rule, influence a choice of interpretive directives, and determine the choice of a specific morality in a morally pluralistic society.
Moral values also play a role in the decisions about proof and evidence , a topic discussed in detail by Hannu TAPANI KLAMI et al. A great merit of this paper is to show how the reasoning about evidence is actually saturated with appeals to moral values and principles. In turn, Tomasz GIZBERT-STUDNICKI discusses adjudicative decisions which address conflicts of values within a given legal system. One refreshing aspect of this paper is that Gizbert-Studnicki rejects a legalistic presupposition that any coherent legal system must rest upon a uniform and hierarchically structured system of moral values.
In his thought-provoking essay “Thinking Like a Lawyer,” Martin KRYGIER elucidates the issue of “hard cases” (cases where established rules do not provide any clear authority) by appeal to the notion of a tradition: “thinking like a lawyer” means being able use a complex “idiom” of established rules but also styles, ideals etc. Aleksander PECZENIK restates and elaborates a well-known distinction between the prima facie and the all-things-considered moral statements, and considers the notion of the prima facie duty to obey the law. This is taken up, in a more specific context, by Raymond WACKS who discusses the role of judges in an unjust legal system (his example is South Africa under the apartheid system).
The remaining chapters deal with the relationships between substantive moral theories and the contents of legal rules. Zygmunt ZIEMBINSKI discusses legal relevance of two main currents of moral thought: perfectionism and , on the other hand , appeals to human fellowship and solidarity. Guy HAARSCHER explores main philosophical principles underlying the discourse of human rights by reconstructing and discussing five main notions of the philosophy of human rights by the end of the 18th Century: individualism, state of nature, natural rights, social contract and rationalism. Tom CAMPBELL considers various theories of what constitutes “discrimination” and concludes by proposing his own theory which appeals to the notion of prejudice-based disadvantage. H.Ph. VISSER’ HOFT discusses justice between generations, and shows how this issue is related to such deeper issue as our relations to nature and our duty to continue the species. Finally, Charles SAMPFORD and David WOOD address the moral presuppositions of tax law, and show that , contrary to conventional thinking , tax, property and income belong to the same moral plane, and that “property” is no more (or less) “natural,” or pre-political, than are taxes.
All in all, this volume gives a significant insight into the diversity of concerns, and quality of intellectual reflection, of some of the leading scholars exploring the intersections between law and moral theory.