![handle is hein.journals/nfdnsaisy2 and id is 1 raw text is:
EDITORIAL
There is an interesting passage in H.L.A. Hart's Essays on Bentham where he discusses
J.S. Mill's use of the legal in the definition of moral right (Hart 1982, 91-94). There it
seems that a knowledge of practically feasible law is taken as the defining component
of an abstract idea of morality. According to Mill, there is a moral right, if that right
should be a legal right even if all the side-effects, costs and other troubles ('disutilities')
ensuing from its enforcement and protection as law are taken into account. This,
according to Hart, amounts to putting the cart before the horse, because Mill was
trying, with his idea of moral right, to develop a standard with which positive law could
be measured. If the moral right was to check law as an external measure, it would be
against proper ways of construing that measure to make the law (the thing to be
measured) a defining part of the measure itself.
Mill's formula brings to mind another and at least equally famous definition
in moral philosophy. Namely, the moral law of Immanuel Kant according to which one
should act so that the maxim of thy will could be a principle of general legislation,
allgemeine Gesetzgebung (Kant [1902/10] 1995, 30). Markedly, the law is also here
contained in the definition of morality. In Kant's case the placing of horse and cart is
not a problem, as his moral law is not intended as an external measure for positive law.
In both cases, however, one makes the observation that the thought procedure, in which
a concept of critical morality is to be developed, relies definitively on a preconceived
concept of positive law.
Emile Durkheim and Marcel Mauss maintained in their Primitive Classification
that '[f]ar from it being the case, as Frazer seems to think, that the social relations of
men are based on logical relations between things, in reality it is the former which have
provided the prototype for the latter' (Durkheim & Mauss [1903] 1963, 82). Guided
by this idea, that is, the idea of predominance of the social over other things in
conception, let us make a pair of brief experiments with law as a 'social relation' that
precedes and determines the conceptualization of other 'relations'.
The moral autonomy requires that external influences such as the variety of
factors affecting the survival and well-being of one, and among them the social
pressures leveled against him/her by the majority opinion, will not affect the personal
deliberation concerning one's moral duty. Only in such an independent condition, is one
free and therefore morally accountable in full. Autonomoy, i.e., the self-motivated
obligation to act morally, is assigned praise and valour because of its capability to
overcome heteronomy, i.e., to trump all dependency upon external factors.](ViewImageLocal?handle=hein.journals/nfdnsaisy2&div=1&collection=&method=preview&ext=.png&size=3)
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