Law and morality

Massimo La Torre

pp. 231-260

in: Massimo Torre, Massimo La Torre, Law as institution, Berlin, Springer, 2010

Abstract

Chapter 8 concludes summing up what the neo-institutionalist approach defended would imply as for the relationship between law and morality. Here different approaches are reviewed and discussed. The outcome is a partial endorsement of a discourse theory approach. Institutionalism, old and new, to make sense of the ideal side of law, of its dual nature, cannot maintain morality outside the precinct of legal practice. In this sense, institutionalism – to be faithful to its own notion of institution – cannot keep faith to legal positivism. Institutionalism needs – this might be a conclusion – morality and a theory of morality to render justice to the concept of law we adopt from the internal point of view. But the morality theory searched for cannot be a Platonist one, distant from practice, and imposed upon it, or even one that could believe to derive practice from one or a few basic principles in a logicist mood.