Legal Determinacy and Moral Justification

15 Pages Posted: 3 Jun 2007

See all articles by Jody S. Kraus

Jody S. Kraus

Columbia University - Law School

Abstract

The idea that legal theories seek not only to explain but to evaluate the moral justification of particular areas of law is quite familiar. Yet little attention has been paid to the minimal criteria of adequacy for justificatory legal theories. Whereas many theories claim to identify the moral grounds that justify a particular area of law, such as contracts or torts, none of them explains how its justification determines the outcomes of adjudication governed by the law in that area. In this brief Essay for the William and Mary Law Review Symposium on Law and Morality, I argue that a particular area of law can be justified only by identifying moral reasons that fully determine the results of adjudication. No matter how compelling the moral reasons a legal theory identifies, and how tight the fit between those reasons and the structure and content of the legal rules governing a judicial decision, a legal theory fails to justify a particular area of law if the reasoning it identifies falls short of fully determining the results in the judicial decisions governed by that law. Though this bold claim may seem unrealistic, I argue that legal theories can satisfy this determinacy requirement by identifying determinate but inconclusive reasoning that explains outcomes in adjudication. While such reasoning may prove to be erroneous, that does not undermine its justificatory force.

Keywords: legal determinacy, moral justification, private law, philosophy of law, jurisprudence

Suggested Citation

Kraus, Jody S., Legal Determinacy and Moral Justification. William & Mary Law Review, Vol. 48, p. 1773, 2007, Available at SSRN: https://ssrn.com/abstract=990575

Jody S. Kraus (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

HOME PAGE: http://web.law.columbia.edu/faculty/jody-kraus

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
253
Abstract Views
1,698
Rank
219,894
PlumX Metrics