This interdisciplinary thesis in legal philosophy examines the relevance and impact of metaethics on legal indeterminacy. Conventionally, the process of adjudication relies on hermeneutical methods of legal interpretation and construction to cope with indeterminacies (ie ‘hard cases’, situations where proper application of legal materials is highly contestable). Two competing adjudicatory theories require evaluation, both based on metaethical positions. The first uses an ethical cognitivist conception of morality to eliminate indeterminacy, arguing for single right answers to legal problems. The second offers an ethical non-cognitivist approach that radicalizes indeterminacy by replacing hermeneutical methods with socio-psychological analysis. The primary objective of this project is investigating the plausibility of these competing approaches by determining whether and to what extent morality affects legal indeterminacy. A strong aspect of this project is its originality. Although there are various scientific texts and articles touching on metaethical content, there is a distinct lack of scholarship investigating metaethical contributions to law, especially to legal hermeneutics. This dissertation aims to fill this gap. Bringing together two areas of knowledge—law and moral philosophy—this project uses a methodological blend of legal theory and interdisciplinarity (ie metaethics) for determining how metaethical scholarship impacts legal interpretation and construction. Addressing the theoretical foundations to public security law, fundamental rights, and the Rule of Law, this project furthers the Department’s research agenda by focussing on fundamental research and the broader functioning of our legal and democratic processes. Substantive outcomes will include: (1) providing additional knowledge indicating to what extent metaethical arguments inform the legal indeterminacy debate, with particular focus on the practical and scientific plausibility of the two contending accounts; and (2) exposing what contributions metaethics can offer to an analytical reconstruction of legal hermeneutics.
Research outcome: doctoral thesis at the University of Freiburg (2020–2022).
First axis: Fundamentals: Theoretical Foundations and Doctrinal Structures Department: Public Law Status of project: Ongoing Project category: Dissertation Project duration: Project start: 2020
Project end: 2022