Abstract
Communitarians and liberals disagree about the way the state should treat the phenomenon of moral pluralism, the phenomenon that the members of a modern society usually do not share the same moral outlook, but have different views about good and bad. Whereas liberals take the position that the state has to be neutral between the competing conceptions of the good, communitarians argue that the state ought to enforce that morality which is dominant within the community. The liberal view rests on the distinction between the right and the good1 according to which the state is only entitled to enforce the principles of justice, but not — in a perfectionist way — any special conception of the good. According to the liberal view, the individual has the right to pursue any conception of the good and to hold any moral view as long as she does not violate the rights of her fellow citizens. Communitarianism, on the other hand, gives the state the right to discriminate between different views of the good; the state is entitled to give special treatment to that morality which is dominant within the community. The reason for this preferential treatment for the majority’s morality lies in its importance for the common good; according to Charles Taylor2 the dominant morality helps to define the common good of a society, its form of life. Without the state’s support for this dominant morality society would run the risk of disintegrating. A different argument against ethical neutrality was put forward by Philip Selznick3. For him the dominant morality is important because it represents the objective criteria which enable the individual to decide between right or wrong. Without these criteria there would be no way for the individual to distinguish right from wrong.
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Notes
John Rawls: A Theory of Justice, Cambridge, Mass.: Harvard University Press 1971, p. 31.
Alternative Futures: Legitimacy, Identity and Alienation in Late Twentieth Century Canada“, in: A. Chaims/C. Williams (eds.): Constitutionalism, Citizenship and Society in Canada, Toronto: University of Toronto Press 1986, p. 213.
The Moral Commonwealth, Berkeley et al.: University of California Press 1992, and “Dworkin’s Unfinished Task”, in: California Law Review 77, 1989, pp.505–513, 507.
Morality and the liberal ideal“, in: New Republic,7th May 1984, pp.15–17.
Bowers v. Hardwick, 478 U.S. 186, 203 (1986).
As the author is primarily acquainted with Austrian and German law the expression “our contract law” is to be taken as referring to these legal systems.
Usually court decisions are formulated in the name of the people.
This argument, of course, simplifies a bit: It could be part of the morality of these people that it is forbidden to make such contracts themselves, but admissible to take part in the enforcement of such contracts if other people make them. This could be the case because they also highly value the principle of pacta sunt servanda. Thus, it is not necessarily the case that the enforcement of such contracts is opposed to their morality.
Werte im Pluralismus“, in: Juristische Blätter 113, 1991, pp.681–689.
Neue Juristische Wochenschrift 45, 1992, p.2557.
Verwaltungsgerichtshof Baden-Württemberg, in: Der Betriebsberater 13, 1958, p.500.
Neue Juristische Wochenschrift 28, 1975, p.1363.
Juristische Blätter 111, 1989, pp.785–786.
Bundesgerichtshof, Sammlung der Entscheidungen des Bundesgerichtshofs in Zivilsachen, 67, p.119.
Bundesfinanzhof, Sammlung der Entscheidungen und Gutachten des Bundesfinanzhofs, 97, p.378.
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© 1994 Springer Science+Business Media Dordrecht
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Graf, G. (1994). Contract Law and the Ethical Neutrality of the State: Some Thoughts About Liberalism and Communitarianism. In: Pauer-Studer, H. (eds) Norms, Values, and Society. Vienna Circle Institute Yearbook, vol 2. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-2454-8_11
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DOI: https://doi.org/10.1007/978-94-017-2454-8_11
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