Law and morality in the light of acceptance and constraint
Every rule adopted by a community, characterized by the traits: significance, the manner of adopting the rules of morals, the nature of moral responsibility, the form of pressure of morals, is the rule of 'public' morals. It is obvious that 'public' morals are not rooted only in...
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| Format: | Article |
| Language: | English |
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University of Novi Sad, Faculty of Law
2011-01-01
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| Series: | Zbornik Radova: Pravni Fakultet u Novom Sadu |
| Subjects: | |
| Online Access: | http://scindeks-clanci.ceon.rs/data/pdf/0550-2179/2011/0550-21791101257T.pdf |
| Summary: | Every rule adopted by a community, characterized by the traits: significance, the manner of adopting the rules of morals, the nature of moral responsibility, the form of pressure of morals, is the rule of 'public' morals. It is obvious that 'public' morals are not rooted only in autonomous principles of the moral agent, but also in the fact of the existence of adopted rules in a community. At the same time, we distinguish 'public morals', truly adopted by a commonly given group from 'critical morals' used in the criticism of the existing social institutions. Legislators, however, have to decide on some of the questions of 'public morals', which happens when some practice threatens to affect some valuable social institute. Then they are forced to hold to a consensus of moral standpoint adopted by the community as a unity. The definition of the moral standpoint, provided in that manner, shows that that term is now used in an anthropological sense. An ordinary man, whose views we must enforce by means of law, is not expected to judge about anything, and his attitude can mainly be a matter of conviction. If a sensible man believes that some common practice is immoral regardless of whether this belief is correct or not, since for him it is honest and impartial, that no one of the correctly oriented members of the society thinks otherwise, then that practice is immoral for the legislator too. Conclusions made in this way are partly false, because they depend on the use of the term moral standpoint in its anthropological sense. Although it is true that the majority thinks that certain behaviour is 'awful vice', and cannot tolerate it, there remains a possibility that this common opinion is made up of prejudices, rationalizations and personal aversions. Consequently, 'public' morals are always a mixture of customs and conventions, reasoning, experiences and prejudices. It can be said that an ordinary man cannot provide any reason for his point of view but will supply only a reason that reflects a common moral standpoint which he himself is unable to endorse honestly and consistently. A conscientious legislator, to whom is said that there is a consent about an issue in the moral sense, ought to check the credibility of the consensus. |
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| ISSN: | 0550-2179 2406-1255 |