Conceptions of Objectivity

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Long title: 
Conceptions of Objectivity – Understanding the Nature of Morality for the Purpose of Doing Legal Ethics
Author(s): 
Tucsa, Emanuel R.
Author(s)' contact information: 
emanueltucsa@osgoode.yorku.ca
Conference title: 
Canadian Association for Legal Ethics AGM & Conference
Conference location: 
University of Saskatchewan, Saskatoon, Saskatchewan
Country: 
Canada
Year: 
2013

In the field of philosophical legal ethics, the most prominent question, as in legal philosophy, is that of the relationship between law and morality. Broadly speaking, legal positivists deny that there is a necessary connection between law and morality while natural law theorists affirm such a connection. Philosophical legal ethicists have recently developed theories of legal ethics around the insights of the jurisprudential traditions to which they subscribe. While much attention within these debates is properly focused on understanding the nature of law, an underexplored topic is the nature of morality, the other normative field that is the focus of this debate.

There is a need, within both legal philosophy and philosophical legal ethics, to consider questions of meta-ethics, dealing with the ontology and epistemology of morality. In relation to the large field of inquiry that is meta-ethics, I intend to explore the question of how different conceptions of moral objectivity shape what is meant when a legal theorist/ethicist talks about the connection between law and morality. Legal philosophers such as Brian Leiter and Ronald Dworkin have addressed this debate, dealing with rival conceptions of the ontology of moral objectivity as expressed in mind-dependent and mind-independent varieties.

I will argue that, as far as the issue of objectivity goes, morality is best understood in terms of what Brian Leiter calls the “Naturalistic Conception” of objectivity, in which “objective morality” is understood to be ontologically independent of our views and understandings about morality. This, I suggest, is the conception of the ontology of moral objectivity that we should have when discussing the connection between law and morality and building theories of philosophical legal ethics. That is to say, morality is naturalistically objective.

In addition to proposing this view at the level of meta-ethics, I will discuss the way in which this moral and legal ontology shapes the epistemology of lawyering. Put simply, what are lawyers asked to know under the competing models of moral ontology and, specifically, moral objectivity? How can lawyers practically carry out such normative demands? I will undertake this analysis especially from the perspective of my own Fullerian theory of philosophical legal ethics, outlining what it means, for the purpose of lawyering in a way that appreciates the internal morality of law, if morality is characterized according to the competing theories of the ontology of moral objectivity.

I hope to provide insights into an important theoretical consideration that pertains to doing legal philosophy and to express the insights related to that topic in a way such that they can be practically relevant aspects of philosophical legal ethics.

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