Four Reflections on Law and Morality
Moore, Michael S., William and Mary Law Review
TABLE OF CONTENTS INTRODUCTION I. How DOES MORALITY RELATE TO THE LAW WE HAVE? A. Morality in Judicial Reasoning 1. The Explicit Incorporation of Morality by Obvious Law 2. Morally Justifying the Authority of Obvious Law 3. Morality in Hard Cases 4. Moral "Safety Valves" and the Overruling of Obvious Law B. Morality in the Law II. HOW DOES MORALITY RELATE TO THE LAW WE OUGHT TO HAVE? III. SHOULD REAL OR CONVENTIONAL MORALITY BE PART OF THE LAW? A. Epistemic Deference 1. The Supposed Wisdom of the Many 2. Conventions as Heuristics B. Democratic Deference 1. In the Law We Ought To Have 2. In the Law We Have IV. THE CONTENT OF MORALITY APT FOR LAW A. Competing Theories of Ethics B. Competing Ethical Ideals in Five Areas of Law 1. Criminal Law 2. Torts 3. Distributive Justice in Contracts and Property 4. The Promissory Theory of Contract 5. Natural Rights Theories of Property 6. Constitutional Law C. Picking the Best Morality for Discrete Areas of Law CONCLUSION
Law and morality--my, what an old friend the topic for this Conference seems to me. Showing that law was infused with morality was my first topic in jurisprudence. Indeed, it is what drew me into jurisprudence at all. I was interested in philosophy and law long before I became interested in jurisprudence, that is, the philosophy of law. It was seeing law as a branch of ethics--as related intimately to morality--that made jurisprudence interesting enough for me to pursue it.
This was not just because I, like others in my generation of legal philosophers, grew up in the shadow of the Hart-Fuller debate (in which the relationship of law to morality was central). (1) It was rather because showing how law was part of morality made the abstract study of law, that is, legal philosophy--seem a more noble calling, not a mere techne, a trade, a matter for the sharp pencils crowd and legal jujitsu. Seeing law as obligating, at least of judges if not citizens, made law--and the question of law's nature--matter in a way that positivistic social sciences of law never did. (2)
I have organized my remarks around the four aspects of the topic of law and morality that have dominated my own jurisprudential scholarship and teaching these past four decades. The first is the relationship between the law that obligates judges, and morality: exactly how, in what ways, does that law relate to morality? The second involves the proper aims and limits of lawmaking in a democratic society: put simply, is it proper to legislate morality? The third is the nature of that morality to which the law that we either have, or ought to have, is related: is the justice part of "justice under law" real or conventional morality? The fourth is the content of that morality apt to be part of the law we have or ought to have: should law be concerned with virtue, or should it focus on rights and obligations only? If the latter, is it deontological or consequentialist morality that is of most relevance to law? If consequentialist, is it utilitarian or a more pluralistic consequentialism? If it is deontological, is it libertarian (natural right) or egalitarian (distributive justice) in nature? These are not just questions of the general shape of ethics and meta-ethics (although they are also that). They are also questions about that part of morality apt for law--justice, say, rather than personal virtue.
This is a laughably large set of topics. But one of the benefits of giving introductory remarks is that one can introduce a topic by painting only in bold strokes, and with a broad brush. And then, as one of our broad-brush-strokes-kind of presidents used to say, one can leave the troublesome details to the "fellas." (3)
I. HOW DOES MORALITY RELATE TO THE LAW WE HAVE?
So the first topic: how is law related to morality? …