Rules, Defeaters, and Untouchables of Law. Moreso in the Search for the Lost Balance

Postigo J.C.-F. · Doxa. Cuadernos de Filosofia del Derecho (2024) · DOI: 10.14198/doxa2024.48.20

Resumen

Moreso has referred to «the untouchables of law» to allude –within his original «image» of Law– to a certain aspect of the legal systems’ institutional dimension for which, precisely due to moral considerations, some of their institutional decisions would not be subject to a moral reading, nor would they be directly defeated by reasons of a moral nature. This paper’s objective is to suggest the thesis that Moreso is right in defending a sort of institutional immunity that prevents legal systems from a permanent moral reading, although this thesis could find not only a better justification but also some nuances if these legal «institutional untouchables» are complemented with some legal «moral untouchables» –so to speak–, ultimately grounded in a more robust anthropology that, nonetheless, is not incompatible with our Constitutional States governed by the Rule of Law, and in a theory of moral action that justifies equity not only as a mechanism or technique but, above all, as a virtue, theses typical of the Aristotelian tradition.

Instituciones: Universidad Católica San Pablo