Academic journal article William and Mary Law Review

Law's Limited Domain Confronts Morality's Universal Empire

Academic journal article William and Mary Law Review

Law's Limited Domain Confronts Morality's Universal Empire

Article excerpt

There is an ongoing debate in contemporary jurisprudence over whether law, properly conceived, is capable of incorporating morality. And this debate has its important practical analogues, especially in American constitutional law. For this is where lawyers and scholars argue about whether, for example, the guarantees of equal protection, freedom of speech, and the free exercise of religion, as well as the prohibitions on cruel and unusual punishments and unreasonable searches and seizures, require courts and other governmental decision makers to adhere to the correct moral principles regarding equality, freedom of speech, freedom of religion, punishment, and (locational) privacy. That these and other constitutional clauses appear to speak in moral language is relatively uncontroversial, but far more controversial is what it means for authoritative law to speak in moral language, and how, if at all, such language connects law with what is simply and pre-legally morally right (and wrong) to do.

These debates about the status of morality in legal argument are important, but our goal here is not to engage them frontally. Rather, we wish to illuminate a particular aspect of these debates. And that aspect is the logic of the incorporation by law of morality, and the way in which, if at all, law can retain its law-ness and its ability to perform law's essential functions while still being open to the full universe of moral considerations. In a word, we do not believe that this is possible, and thus we believe, and shall argue here, that even when law incorporates morality, law can only serve its primary and essential functions if it has a considerable degree of resistance to the pressure of at least some morally correct moral claims. In other words, we strive here to make the moral argument for law's ignoring of at least some moral arguments in legal decision making.

I. REASONS, MORAL AND OTHERWISE

We start with the premise that morality, at least morality as we conceive of it, is the domain of practical reason that asks what one ought to do, all reasons considered. Under this view, all reasons are subordinate to the moral "ought" because the moral "ought"--or at least the strong moral ought that expresses an obligation--takes all reasons into account. (1) But even though we believe that this premise is correct, and although it makes our conclusion here starker, in fact, this premise is not strictly necessary to our argument. (2) For even if moral reasons constitute but a subset of the universe of all reasons, they still, tautologically, occupy the full universe of moral space. And thus from either the broad premise that morality pervades all of practical reason, or from the narrower and tautological premise that morality pervades only the entire universe of moral reasons, we can still ask what it would mean for law to incorporate morality, either as part of the rule of recognition as a necessary or sufficient condition of legal validity in a given legal system (3) or as the referent of some more quotidian legal directive such as a constitutional or statutory provision. In our view of law, which posits that legal reasons are a "limited domain" of all the reasons there are, and also, and importantly, that moral legal reasons are a limited domain of all the moral reasons there are, legal incorporation of morality presents the odd case of the subset incorporating the larger set, and thus suggests the peculiar image of a mouse attempting to swallow a python.

II. LAW'S LIMITED DOMAIN

We believe it to be a relatively uncontroversial aspect of our experiences as lawyers and, more generally, of our experiences with the law as citizens, that law has a "limited domain." (4) By that we mean that legal reasons for decisions make up only a subset of all the practical reasons that bear on them. (5) Typically, to find the law we look in the California Reporters, in the West Publishing Company's Digests, in the United States Code Annotated, in the Code of Federal Regulations, and in the American Law Institute's Restatements. …

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