Neto on the (dis)Similar Properties of Legal and Moral Duties in Law and Morals: Proceedings of the Special Workshop Held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy (2017)

Joao Andrade Neto, Universität Hamburg; Albrecht Mendelssohn Bartholdy Graduate School of Law; Pontifical Catholic University of Minas Gerais, is publishing On the (dis)Similar Properties of Legal and Moral Duties in Paula, André Ferreira Leite de; Santacoloma Santacoloma, Andrés (eds.). Law and Morals: Proceedings of the Special Workshop held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy in Lisbon, Portugal, 2017. Stuttgart: Franz Steiner Verlag, 2019.

Do legal and moral duties share exactly the same properties? Moral philosophers such as Hare, Searle, and W. D. Ross believe that moral conflicts exist in which an individual has equally good reasons to fulfil two or more obligations that cannot be simultaneously satisfied. In such cases, they say, one has “reasons other things being equal” to act one way or another. These so-called “prima-facie duties” contrast with “definitive” moral duties, which remain after all reasons were considered. Some legal philosophers affirm that this separation applies to legal duties, as well. Alexy employs the same classification to differentiate two types of constitutional norms: principles and rules. As the differentiation originally had a philosophical scope, it is relevant to ask whether the separation between prima facie and definitive moral duties can ground a similar differentiation between types of legal norms. This essay addresses this question. Rather than denying the difference between “prima facie” and “definitive” moral duties, it asks whether prima facie legal duties actually exist. The aim is to demonstrate that, from the internal perspective, a possible consequence of legal differentiation and institutionalization is that only definitive duties are to be regarded as law.

Download the essay from SSRN at the link.