Are rationality and morality linked


Law and morals are closely related in everyday language. This is particularly clear in criminal law, where it is about the protection of certain goods, which in the minds of the citizens are consistently associated with values, the observance of which they consider morally imperative and whose protection they, moreover, expect the state to protect. Think, for example, of the value of human life on the one hand and the legal solution to the collision between the interests of the expectant mother and the growing life of the embryo in the context of the so-called "deadline solution"1 on the other hand. Moral ideas that are experienced as binding can also be found in the other parts of the legal system: This shows, for example, the close connection between the so-called “social welfare laws” of the federal states and the various manifestations of the idea of ​​justice2 stand.3 The so-called "basic rights", which determine the position of the individual vis-à-vis and in the state, are now more and more legally understood as an expression of values ​​whose realization is morally required. The modern theories of "civil society"4 place a particularly strong emphasis on the moral obligation of the individual and the state to realize community values. Finally, moral questions also lie in the private legal system5 based on: Is or under what conditions is the market sufficient to guarantee a fair distribution of scarce goods? The many state interventions to protect otherwise structurally weaker positions, for example for the purpose of consumer protection, are well-known evidence of this.

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  1. Cf. for example: Freise, Kristin (1993): The problem of abortion in the field of tension between morality, law and politics. Saarbrücken.Google Scholar
  2. On the formations of the idea of ​​justice in the law see Perelman, Chaim (1967): Uber die Gerechtigkeit. Munich; Rawls, John (1979): A Theory of Justice. Frankfurt a. M.; Höffe, Otfried (1987): Political Justice. Frankfurt a.M. Google Scholar
  3. See the most recent public debates on the question of whether and what aid should be given to foreigners who have entered Austria as refugees, albeit illegally. Google Scholar
  4. Particularly emphatic: Habermas, Jürgen (1992): facticity and validity, pp. 443ff. Frankfurt a.M. Google Scholar
  5. Cf. Bydlinski, Franz (1994): Private law in the legal system of a private law company. Vienna - New York: Springer.Google Scholar
  6. To protect the legal positions of citizens against shock-like frustrations by the legislature, see Thienel, Rudolf (1990): Confidence Protection and Constitutional Law. Vienna.Google Scholar
  7. The legal measures to achieve certain public goals - e.g. interfering with personal freedom for the purpose of combating injustice - must not be "disproportionate". For example, the firearm may not be used against a fleeing parking offender, because the associated risk to health and life would be disproportionate to the public purpose of regulating stationary traffic. See § 29 SPG, Federal Law Gazette 1991/566 as amended. and § 4 ff. WaffGebrG, BGB1. 1969/149 as published in Google Scholar
  8. Valuation questions can never be completely rationalized.Google Scholar
  9. s On the definition of ethics and morals, as well as ethos: Pieper, Annemarie (1985): Ethik und Moral. An introduction to practical philosophy. Munich.Google Scholar
  10. Alexy, Robert (1978): Theory of Legal Argumentation. Frankfurt; Schreiner, Helmut (1980): The intersubjectivity of evaluations. Berlin.Google Scholar
  11. For Austria see Stock, Wolfgang (Ed.) (1986): Ziviler Disobedience in Austria. Vienna. “Civil disobedience can consist of the lawful use of basic rights against legal measures that are not morally justifiable; In particular, freedom of expression and communication, as well as freedom of the press and freedom of assembly (demonstration) come into consideration. Civil disobedience can also consist of the deliberate illegal public refusal of obedience to a norm. The refusal cherishes the hope of winning over the public through his public behavior, so that the criticized legal measure will be withdrawn or at least changed. ”Google Scholar
  12. The "religious wars" were therefore not only an expression of untamed striving for power, but also to at least the same extent attempts to restore the lost unity of law and morality, predominantly in the guise of religious ideas.Google Scholar
  13. In any case, as does extreme statist legal positivism. The contrary assertion, according to which the law is necessarily connected with moral ideas, is supported by the theories of natural law. Compare with: Ott, Walter (1988): Der Rechtspositivismus. Berlin; Alexy, Robert (1992): Concept and Validity of Law. Freiburg i.Br./München.Google Scholar
  14. Zippelius, Reinhold (1982): Rechtsphilosophie, p. 29ff. Munich. Google Scholar
  15. Kant, Immanuel: Die Metaphysik der Sitten (Academy Edition, Vol. VI: Introduction to Legal Doctrine. § B. What is Law? S. 229f) .Google Scholar
  16. A law is general when it unites all citizens equally and differences are only allowed to the extent that they are justified in the matter. Google Scholar
  17. On the “open society” see Popper, Karl (1977): The open society and its enemies. Vol. 1, 2, 5th ed .; on law: Zippelius, Reinhold (1982): Rechtsphilosophie, p. 78ff. Munich.Google Scholar
  18. Such as the universalization maxim, for example in the sense of Kant's categorical imperative, or the “golden rule” of ethics.Google Scholar

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