The incorporation as a doctrine: observations for an error theory
DOI:
https://doi.org/10.24215/25916386e028Keywords:
Incorporation Theory-Judicial Adjudication-Morality and Law-Error Theory, incorporation theory, judicial adjudication, error theoryAbstract
In this paper I analyze the use as an argument to solve legal cases of the idea that morality is incorporated into law through the mention of principles and rights by social sources. After presenting a distinction between incorporation as theory and incorporation as a doctrine, I approach the latter from the categories of error theory. Taking as an example a judicial decision based on the doctrine of incorporation, I conclude that this constitutes a generalized error, inasmuch as it is incompatible with the characterization of the legal system that its theoretical references presuppose. Leaving aside the doctrine of incorporation would be a gain for legal practice, both in sincerity and in democratic responsibility.
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