Annual Jurisprudence Lecture - Law and Morality: A Conceivability Argument by José Juan Moreso

The event is part of the Legal Theory Festival See the full Legal Theory Festival porgramme of events 

Abstract

The separability thesis is typically framed in terms of the conceptual possibility of a legal system without moral criteria of legal validity but is framed in terms of the ‘conceivability’ of such legal systems. Jules Coleman, for instance, expresses it as ‘the claim that there exists at least one conceivable rule of recognition (and therefore one possible legal system) that does not specify truth as a moral principle among the truth conditions for any proposition of law’. 

The latter formulation assumes the epistemic reliability of arguments of conceivability, which have figured prominently in recent years in the literature in philosophy of mind on physicalism. Most famously, David Chalmers makes the following ‘conceivability argument’ against physicalism: 

• 1) Zombies are conceivable. 

• 2) Whatever is conceivable is possible. 

• 3) Therefore, zombies are possible. 

But, as suggested by Les Green, conceivability and possibility can come apart, which raises the following concern: a legal system without a moral criteria of validity might be conceivable. however, given the human condition (i.e. Hart’s minimum content of natural law), it does not follow that such a legal system is possible. 

This essay evaluates the second premise in Chalmers’s argument: conceivability entails possibility. The problem is that we can distinguish at least three kinds of possibility. This essay distinguishes among metaphysical, human, and normative possibility and addresses the following issues: a) Does conceivability entail metaphysical possibility? b) does conceivability entail human possibility, c) does conceivability entail normative possibility? The essay concludes that a legal system lacking in moral criteria of validity might be conceivable; but whether it is possible depends on which modal sense is relevant. 

This event is will be followed by a reception in the Moot Court Room. 

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