Legal imperfectionism

Jurisprudence 15 (3):282-306 (2023)
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Abstract

What role do moral norms play in the justification of legal norms? Here, I explore an answer that emphasises the moral significance of imperfection – of the fact that we are imperfect people, who live imperfect lives, and who have imperfect tools at our disposal for responding to our predicament. These imperfections, I argue, help make the case for (one version of) the harm principle. And they help make the case against the claim traditionally associated with legal moralism, namely that moral duties give law-makers reason to create legal duties with the same content. To accept all this is compatible with accepting – as I also claim here – that legal norms which help us better conform to moral norms are legal norms there is reason for law-makers to create. Those who accept this are nowadays dubbed perfectionists. Following John Gardner, I suggest that they are better thought of as legal imperfectionists.

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