Front Page Titles (by Subject) Moral and Legal Justification - Literature of Liberty, Winter 1980, vol. 3, No. 4
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Moral and Legal Justification - Leonard P. Liggio, Literature of Liberty, Winter 1980, vol. 3, No. 4 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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Moral and Legal Justification
“On Moral and Legal Justification.” Southwestern University Law Review 11(4)1979:1327–1344.
We need to analyze the process of reason-giving on the level of both morality and law. We then should describe the flaws in justificatory approaches currently employed and sketch the kind of argument which would provide rational justification for moral and, in turn, legal conclusions.
Since John Austin's nineteenth-century analysis, a large part of Anglo-American jurisprudential thought has discerned little connection between law and morality. On the whole this separation has been as sound and useful as the more basic distinction between science and ethics. Nevertheless, the distinction is not air-tight, considering that law is ordinarily the encoding (with sanctions) of some ethical system.
With their traditional aversion to philosophical issues, lawyers have tended to avoid confronting some of the real difficulties involved in the rocess of justification—problems of infinite regress, circularity, the connection between facts and morals, etc. Whether moral judgments can be termed true or false has by itself vexed the best minds of the past two centuries, leading many to a skepticism which sees moral doctrine as having emotional or hortatory value, but lacking the dimension of truth.
Refutations of traditional natural law, utilitarian, or economic approaches which were surveyed would not necessarily abandon us to the no-man's-land of moral skepticism or to the vagaries of sentiment. On the contrary, we might uphold a rational justification for human rights based on generic features of human action as developed recently by Alan Gewirth. According to this argument, the murderer, rapist, or robber involves his victims against their will in a transaction with himself. He, on the other hand, is acting voluntarily. By acting conatively, the criminal implicitly claims rights to act voluntarily and purposively. Because he necessarily accepts these right-claims for himself (they are rooted in his actions), he must implicitly grant them for every other actor as well. Otherwise, he will contradict his own claims.
In completed form this argument would justify rights to non-interference in terms of the property foundations of our action; rights to voluntary association defined by terms mutually agreed upon; and rights to rectification if involuntarily involved in an association. None of the modern “social and economic” rights can be justified by arguments based on strict reason. “These conclusions, may not always be pleasing to our sentiments, but at least they can be justified, against the claims of the skeptic —and indeed, against those who would use this skepticism to violate our rights.”