Angelo Ryu

According to legal anti-positivism, legal duties are just a subset of our moral duties. Not every moral duty, though, is legal. So what else is needed? This article develops a theory of how moral duties come to be law, which I call the constitutive reasons account. Among our moral reasons are legal reasons—and those reasons make moral duties into legal duties. So the law consists of moral duties which have, as one of their underlying reasons, a legal reason. Such legal reasons arise from a relationship with the body for which it is the law of. The legal reasons in America, then, are the moral reasons flowing from a relationship with the United States. These reasons include consent, democracy, association and fair play. They are law’s constitutive reasons. By looking for them, we can better explain why some moral duties form part of the law, while others do not.

The standard view of judicial motivation is pluralist. Many considerations, on this view, motivate judges to apply the law. Perhaps they do so out of fear, or greed, or—on some occasions—because it is the right thing to do. Here I defend a competing view. Judges must believe legal duties are moral duties. That belief explains their enforcement of those duties. Various features of legal practice support this inference. Judges often render decisions the merits of which they vehemently disagree. They take pride in the lawfulness of such decisions, and are angry at the lawlessness of others. Those features of legal practice are only intelligible if a decisive number of judges were to believe legal duties are moral duties. Judges must believe possess this belief for certain core features of legal practice to obtain.

Take two positions, both of which we take to be popular ways of thinking about law. First, some norm N is part of the law only if, and in virtue of, N being ultimately recognized or validated by the rule of recognition. Call this Hartian Orthodoxy. Second, statements about legal rights are best understood as claims about the existence of moral rights according to law. Call this legal perspectivalism. Here we show that the two are incompatible. Our argument is that, to account for certain arguments that mix legal and factual claims, perspectivalism must close the legal perspective according to some inference rule. As it happens, however, the only defensible candidates render perspectivalism incompatible with Hartian Orthodoxy.