Maastricht Foundations of Law Colloquia
Kenneth Ehrenberg, Professor of Jurisprudence and Philosophy at the University of Surrey and the co-Director of the Surrey Centre for Law and Philosophy - Title: Moral Facts cannot Ground Legal Facts if Law is an Institution
The Department of Foundations of Law in the Faculty of Law cordially invites you to the next meeting of our Maastricht Foundations of Law Colloquia. On 20 September, our speaker is Kenneth Ehrenberg.
To say that law is an institution implies some specific things about its ontology that precludes saying that legal facts can be grounded by moral facts. This has devastating implications for both inclusive legal positivism, and for Mark Greenberg’s moral impact theory. The argument is based upon the following three realizations: 1) that officials cannot be generally wrong in their application of the sufficient conditions for institutional membership (though they can be wrong about the necessary conditions); 2) that just about every official legal ruling is also a determination of legal validity (and hence an application of institutional membership criteria); and 3) in most situations, every official legal ruling is institutionally valid until reversed by an official body of superior jurisdiction (and the situations in which this is not true can be ignored). One implication of these three realizations is that any time a system appears to ground legal facts on moral facts, the actual grounding is only in the beliefs of officials about those moral facts and not in the moral facts themselves. This means that a system cannot successfully include a moral criterion among its validity criteria (as inclusive legal positivism would otherwise have us believe), and that moral facts cannot determine which of a variety of mappings from legal texts to applications is correct (as Mark Greenberg would otherwise have us believe). While these metaphysical truths give us good reasons to doubt the claims of courts to be finding rather than making the law, they also suggest institutional reasons for those beliefs.
The colloquium’s format is pre-read. Those attending are expected to have read the text in advance. The draft will be circulated around 13 September.
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The colloquia will take place physically and online. The Zoomlink for the online sessions will be distributed later.
27 Sep 30 Jun11:00 - 12:30
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