Preface

By Porter, Robert R. | Harvard Journal of Law & Public Policy, Winter 2008 | Go to article overview

Preface


Porter, Robert R., Harvard Journal of Law & Public Policy


From the first day of classes, students at many American law schools encounter an insistence that systematic and rigorous analysis of the law requires "the separation of law and morality." In such a basic form, however, this separation thesis--generally understood as the defining characteristic of legal positivism--is ambiguous and misleading. Some interaction between law and morality is beyond dispute. No one doubts that widely shared moral beliefs serve as a source in the development of law--legislators and even judges draw upon moral ideas when making and applying the law. Law has also long served as a source in the development of morality. Aristotle highlighted the dependence of morality on law in the closing pages of his Nicomachean Ethics, the most comprehensive treatise on the moral virtues in antiquity.

Law and morality are not, however, coextensive. Some aspects of our lives seem appropriate for moral regulation but not for legal control. Philosophers beginning with Plato have noted a distinction between what is legally or conventionally right and what is naturally (or, as many would say today, morally) right. Indeed, legal norms are often subject to criticism from a moral point of view. The precise contours of the relationship between law and morality are complex and deserve serious discussion. The essays and articles presented here address this relationship from a variety of perspectives.

As has been the Journal's tradition for more than a quarter-century, we are pleased to publish highlights from this past year's National Federalist Society Student Symposium. The twelve collected essays approach the theme of "Law and Morality" by discussing moral choices and the Eighth Amendment, government promotion of moral issues, the morality of First Amendment jurisprudence, and same-sex marriage in constitutional theory. Judge William Pryor's keynote address confronts directly the role of religion and morality in the practice of judging, arguing that although particular doctrines may not be used in deciding cases, motivational moral and religious influences may help a judge discharge his duty to protect and defend the Constitution.

We thank the Federalist Society for sponsoring this Symposium, Professor Steven Calabresi for helping to organize its proceedings, and the speakers who shared their reflections first with the student attendees and now with our readers.

The Journal is particularly pleased to present Professor Robert P. George's lecture on "Natural Law." Legal thinking during much of the last century was dominated by positivism. A recent revival of interest in natural law, led by scholars like Professor George at Princeton and John Finnis at Oxford, has challenged the hegemony of the conventional positivist account. The most prominent argument asserting the so-called separation of law and morals was provided by H.L.A. Hart in his 1957 Holmes Lecture delivered at Harvard Law School. Fifty years later, in his 2007 Dewey Lecture at Harvard Law School, Professor George offered a constructive account of natural law. His lecture explains why the idea of natural law and natural rights is more plausible than Hart and others have supposed, comparing natural law to competing justificatory accounts of positive law and to competing standards for its critical evaluation.

Professor Harry V. Jaffa, an eminent scholar of Lincoln's political thought, contributes an engaging essay arguing that Chief Justice Taney's Dred Scott opinion illegitimately applied the sound jurisprudential doctrine of original intent to advance an "incredible misrepresentation" of the Founding ideals. In rejecting the basic proposition that all men are created equal, Taney "invented" a proslavery Founding, thereby "turning the Founders against the Founding." Professor Jaffa subtly contends that the doctrine of original understanding "presupposes a Constitution based upon the laws of nature. …

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