Part II - Sources of the Dilemma of Legal Perspectivalism

Summary

As was made clear in Chapter 1, the dilemma of legal perspectivalism is a product of three presuppositions: (1) that the content of law departs from the content of morality; (2) that the content of morality is not relative to individual or communally held beliefs; and (3) that the authority of law departs from the authority of morality. In Chapter 1,1 defended the first of these presuppositions. In this part I shall take up the second and third presuppositions in an attempt to determine whether we must indeed choose between the jurisprudential axioms that the dilemma of legal perspectivalism makes incompatible. In Chapter 2,1 shall advance reasons to think moral relativism indefensible. In Chapter 3,1 shall demonstrate the indefensibility of the dominant theory of legal authority – the theory of practical authority – which defends the power of law to trump morality in instances in which the two diverge. In Chapter 4, I shall similarly criticize a popular variation on this theory – one which holds that the law, while lacking the power to trump morality, nevertheless possesses influential authority, and so is entitled to such weighty respect that only on the rarest occasions will one be entitled to set it aside in the name of morality. In Chapters 5 and 6,1 shall explore two accounts of how law might be evidential of, but not paramount to, morality. I shall defend in Chapter 6 the theory that only morality can obligate us, because law can possess, at most, theoretical authority. If persuasive, the chapters of this part collectively render the dilemma of legal perspectivalism a robust one.