Moral Foundations of Legal Reasoning

The extreme injustice thesis as a meta-level principle does not concern the problem of legal reasoning at all, although it is intertwined with the dual nature of law - i.e. with the real and ideal dimensions.

There are, of course, many legal problems, even whole areas of law, where moral standpoints and value statements are perfectly irrelevant. This is the case, for instance, in purely technical applications of law. It would seem peculiar to main­tain that an interpretation concerning the notification of a will takes a moral stand. On the other hand, it is as easy to identify a set of problems that are exposed to eth­ical valuations. A good example is offered by the family law, in which ethical and moral arguments cross paths on the levels of legislation, jurisdiction and research.

In this regard, moderate value relativism is closely connected to DSL (Aarnio and Peczenik 1996, 321). As far as interpretation is concerned, the general moral principles and value statements have a similar status in the moral and ethical dis­course as the legal principles and other general norm formulations have in the legal reasoning. They are like “law in books”, which is in need of interpretation before becoming “law as a fact”. As we will see, for these reasons, the legal reasoning is only a special case of moral discourse. That is why moderate value relativism reveals some basic features of all use of general terms, independent of their “home” in moral or legal language-games.

Following Ota Weinberger, value judgments and moral principles become law when they are used as legal arguments (Weinberger 1994, 8, 1992, 252). In other words, a moral argument only receives the status of a legal source when it has the institutional support of the legislature or the judiciary. In this very respect, the non- positivistic thesis also concerns the legal reasoning. Let us look at DSL from this point of view. Ronald Dworkin denies that the Hartian notion of rule of recognition can be applied to principles at all. Such a rule does not allow even a single lawyer to distinguish a set of legal principles from his broader moral or political principles (Dworkin 1986, 40; Siltala 2000, 44). Dworkin is wrong. The fact that the institu­tional support in the case of principles is a complicated one does not mean that there is no such support. In the case of principles, the institutional support is a result of complex legal reasoning, not a matter that precedes the reasoning.