Moral Pluralism and Legal NeutralitySpringer 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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... Religion 167 1. Two Principles 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 This book was completed ...
... Religion 167 1. Two Principles 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 This book was completed ...
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... religion , the scope of the freedom of the press , or affirmative action . It would often be difficult to discern a broader consensus within which these clashes of values operate , unless this consensus were described in such vague ...
... religion , the scope of the freedom of the press , or affirmative action . It would often be difficult to discern a broader consensus within which these clashes of values operate , unless this consensus were described in such vague ...
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... religion . I show how a neutral legal framework helps us to resolve a number of " hard cases " of conflicting demands deriving from the principles of free exercise of religion and of the non - establishment of religion by the state , as ...
... religion . I show how a neutral legal framework helps us to resolve a number of " hard cases " of conflicting demands deriving from the principles of free exercise of religion and of the non - establishment of religion by the state , as ...
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Vsebina
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 |
219 | |
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action agent appeal argument Australia autonomy balance of benefits beliefs benefits and burdens capital punishment Carolene ceteris paribus Chapter choice claim Clause coercion coercive community standards conceptions conflict consensus considered constitutional conventional morality criminal law decision definition of religion disadvantaged discrimination distinction distribution duty Dworkin equal moral agency Establishment Clause Footnote Four Free Exercise Principle freedom groups harm principle Harman hence ideals individual interpretation judges judgments judicial review Justice justified Law Review legislation liberal neutrality liberty majoritarian majority minority MORAL PLURALISM Moral Relativism Non-Establishment Principle non-neutral non-religious normative obscenity one's opinion options particular person philosophy Pitjantjatjara political pornography position postulate preferences prejudice priority prohibition protection punishment Rawls Raz's reasons reflective equilibrium rejection religious respect rhetorical rules school prayer secular sense situation social society Somalia strategy suggests Supreme Court theory of judicial Theory of Justice University Press Uruguay valid values Walzer