Moral Pluralism and Legal Neutrality

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Springer Science & Business Media, 31. dec. 1989 - 224 strani
lt is a commonplace that law and morality intersect and interpenetrate in all the areas of legal decision-making; that in order to make sense of constitutional, statutory or common-law questions, judges and other legal decision-makers must first resolve certain philosophical issues which include moral judgments of right and wrang_ This is particularly evident with regard to constitutional interpretation, especially when constitutions give a mandate for the protection of the substantive norms and values entrenched as constitutional rights. In these Situations, as a leading contemporary legal philosopher observed, the "Constitution fuses legal and moral issues, by making the validity of a law depend on an answer to complex moral 1 problems". But the need for substantive value elucidation is not confined, of course, only to constitutional interpretation under Bills of Rights. This, however, immediately raises a dilemma stemming from the moral diversity and pluralism of modern liberal societies. How can law remain sensitive to this pluralism and yet provide clear answers to the problems which call for a legal resolution? Sharply conflicting values in modern societies clash in the debates over the death penalty, abortion, homosexuality, separation of state and religion, the scope of the freedom of the press, or affirmative action. lt would often be difficult to discern a broader consensus within which these clashes of values operate, unless this consensus were described in such vague terms as to render it practically meaningless.

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JUDICIAL RESPONSES TO MORAL PLURALISM I THE RHETORIC OF REASSURANCE
7
TWO CASES
8
2 THE STRATEGY OF REASSURANCE
18
JUDICIAL RESPONSES TO MORAL PLURALISM II CONVENTIONAL MORALITY IN JUDICIAL DECISIONS
29
1 CONVENTIONAL MORALITY AND THE LEGITIMACY OF JUDICIAL REVIEW
31
2 JUDICIAL USES OF CONVENTIONAL MORALITY
38
3 JUDGES IN SEARCH OF CONSENSUS
44
4 LAUNDERING DEVICES
47
5 THE HARM PRINCIPLE AND THE REDISTRIBUT1VE STATE
124
LIBERAL NEUTRALITY AND THE SPECIAL PROTECTION OF MINORITIES
133
THE MEANING OF FOOTNOTE FOUR
134
2 PREJUDICE PRINCIPLE AND NEUTRALITY
137
LIBERAL NEUTRALITY AND THEORY OF PUNISHMENT
149
1 FROM COMPENSATORY JUSTICE TO A THEORY OF PUNISHMENT
150
2 THE BALANCE OF BENEFITS AND BURDENS MODEL REVISITED
153
3 CRIMINAL JUSTICE AND SOCIAL INEQUALITIES
160

PHILOSOPHICAL RESPONSES TO MORAL PLURALISM
57
2 WALZER OR SHARED UNDERSTANDINGS
61
3 HARMAN OR MORAL RELATIVISM
70
LAW AND NEUTRALITY
87
THE RIGHTGOOD DISTINCTION THE HARM PRINCIPLE AND LIBERAL NEUTRALITY
89
1 THE PRIORITY OF THE RIGHT OVER THE GOOD AND THE PRINCIPLE OF EQUAL MORAL AGENCY
91
2 THE IMPOSSIBILITY OF POLITICAL NEUTRALITY?
99
3 LIBERAL NEUTRALITY AND DISTORTED PREFERENCES
111
4 THE PRIORITY OF THE RIGHT OVER THE GOOD VERSUS THE BALANCING PROCEDURE
119
4 LIBERAL NEUTRALITY AND CRIMINAL PUNISHMENT
162
NEUTRALITY OF LAW TOWARDS RELIGION
167
2 LEGAL DEFINITION OF RELIGION
171
3 REAL LIFE CONFLICTS OF FREE EXERCISE AND NON ESTABLISHMENT
180
4 THE IMPORTANCE OF NEUTRALITY
193
POSTSCRIPT
197
NOTES
201
INDEX
219
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