19 K.L.J. 1 (2008)

handle is hein.journals/kingsclj19 and id is 1 raw text is: (2008) 19 KLJ 1-26

Protagonist and Subject in Gewirth's Argument
for Human Rights
Andrew Chitty
As a recent symposium testifies, the'Sheffield School' has established itself as an important
version of contemporary legal idealism.1 If legal idealism (or natural law theory) can be
defined by the claim that there is a conceptually necessary connection between law and
morality, thus as the rejection of the 'separation thesis' characteristic of legal positivism,
then what distinguishes the Sheffield School variety of legal idealism is a specific way of
supporting this claim, and a specific conception of the morality to which law is tied.2
Members of the School advance a 'transcendental argument' for legal idealism that runs
briefly as follows. If legal phenomena are to be an object of genuine knowledge then legal
reason must be understood as a form of practical reason. However practical reason
presupposes moral reason. Therefore legal reason must be conceived as a sub-type of
moral reason. Therefore law in general must be conceived as the moral right to enforce
rules, and particular laws must be conceived as rules that there is a moral right to enforce.
A rule that is effectively enforced on a population but is immoral does not count as a
Lecturer, Department of Philosophy, University of Sussex. I am grateful to Stephen Brown for the discussions
that led to this paper, to Stuart Toddington for clarifications on several points, and to Gordon Finlayson,
Michael Morris, my referees and especially Deryck Beyleveld for comments on earlier drafts. All errors
remain my own responsibility.
1 See the special issue of Ratio Juris dedicated to the Sheffield and the 'Discourse Ethics' Schools of legal
idealism (2006) 19(2) Ratio Juris. Important works by members of the School include Deryck Beyleveld
and Roger Brownsword, Law as a Moral Judgment (Sheffield Academic Press, Sheffield 1994) (previously
published by Sweet & Maxwell, London 1986), Henrik Palmer Olsen and Stuart Toddington, Law in its Own
Right (Hart Publishing, Oxford 1999), Deryck Beyleveld and Roger Brownsword, Human Dignity in Bioethics
and Biolaw (Oxford University Press, 2001), Deryck Beyleveld and Roger Brownsword, Consent in the Law
(Hart Publishing, Oxford 2007), and most recently Henrik Palmer Olsen and Stuart Toddington,
Architectures of Justice: Legal Theory and the Idea of Institutional Design (Ashgate, Aldershot 2007).
2  For the separation thesis, see HLA Hart, 'Positivism and the Separation of Law and Morals' (1958) 71(4)
Harvard Law Review 593. Members of the School now generally use 'legal idealism' and 'natural law theory'
interchangeably to designate the rejection of this thesis. See Beyleveld and Brownsword, Law as a Moral
judgment (n 1) v, 1-4, 8-10, and Bev Clucas, 'The Sheffield School and Discourse Theory: Divergences and
Similarities in Legal Idealism/Anti-Positivism' (2006) 19 Ratio Juris 230,230- 1.

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