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5 - The Underlying Understanding of Law

from Part II - Consent-Based Monism

Published online by Cambridge University Press:  29 February 2024

Lando Kirchmair
Affiliation:
Bundeswehr University Munich
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Summary

In order to analyze the relationship between international, EU and national law properly, this chapter establishes a working hypothesis: a common denominator of international, EU and national law. Analogous to the historical idea of social contract theory, this common denominator is consensus. After revisiting the major criticism of consent as a (moral) obligation to obey the law, the chapter elaborates on the moral duty to adhere to the pacta sunt servanda principle. After discussing the thesis of an innate Universal Moral Grammar (UMG) that relies on an analogy to the thesis of a universal grammar of the human faculty of language in linguistics, this chapter submits that Colwyn Trevarthen’s concept of primary, secondary and tertiary intersubjectivity is more suitable for conceptualizing the origins and development of the biological setup of human morality. This chapter refers to intersubjectivity, as the decisive concept to align morality and its development with core concepts of (developmental) psychology in order to lay bare the origins of moral normativity, which is essential for us as a basis for the pacta sunt servanda principle.

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Publisher: Cambridge University Press
Print publication year: 2024

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  • The Underlying Understanding of Law
  • Lando Kirchmair, Bundeswehr University Munich
  • Book: Rethinking the Relationship between International, EU and National Law
  • Online publication: 29 February 2024
  • Chapter DOI: https://doi.org/10.1017/9781009380171.010
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  • The Underlying Understanding of Law
  • Lando Kirchmair, Bundeswehr University Munich
  • Book: Rethinking the Relationship between International, EU and National Law
  • Online publication: 29 February 2024
  • Chapter DOI: https://doi.org/10.1017/9781009380171.010
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • The Underlying Understanding of Law
  • Lando Kirchmair, Bundeswehr University Munich
  • Book: Rethinking the Relationship between International, EU and National Law
  • Online publication: 29 February 2024
  • Chapter DOI: https://doi.org/10.1017/9781009380171.010
Available formats
×