Evolutionary Theory and Legal Philosophy
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Evolutionary Theory and Legal Philosophy

Wojciech Zaluski

This unique book presents various ways in which evolutionary theory can contribute to the analysis of key legal-philosophical problems. Wojciech Zaluski explores three central questions; the ontological question – what is the nature of law?; the teleological-axiological question – what are the main values to be realized by law?; the normativity question, which has two aspects; normative: what explains the fact that legal norms provide reasons for action?, and motivational: what explains the fact that humans can be motivated by legal norms? It is argued that evolutionary theory suggests non-trivial answers to these questions, and that these answers can become the building blocks of a new – evolutionary – paradigm in legal philosophy.
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Chapter 4: The Normativity Question

Wojciech Zaluski

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4. 1. The normativity question THREE INSIGHTS OF EVOLUTIONARY THEORY WITH REGARD TO THE NORMATIVITY QUESTION The normativity question has two different, though interrelated, aspects. The first aspect concerns the sources of the normative aspect of legal norms, that is, of the fact that these norms provide reasons for action; I shall call this aspect ‘the normative aspect of the normativity question’. This aspect may be explained in two different ways. First, the explanation may consist in showing that the general norm ‘one ought to obey the law’ is a moral norm. The justification of the claim that this norm is a moral norm may take various forms depending on which conception of ethical justification (utilitarian, contractarian, intuitionist, personalist, etc.) one decides to choose.1 As can be easily noticed, this way of explaining the normative aspect of the normativity question provides an explanation of the normativity of legal norms in toto, that is, of the entire legal system. Second, the explanation may consist in showing that concrete legal norms are simultaneously moral norms. This way of explaining the normative aspect of the normativity question provides an explanation of the normativity of these concrete legal norms, not of legal norms in toto. As we can see, the explanation of the normativity (in its normative aspect) of legal norms consists in both cases in embedding legal norms in moral norms (in the former case – in the general moral norm ‘one ought to obey the law’, and in the latter case – in specific...

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