On Morality and the Law: Truth, Justice and the American Way

• Author: Daniel M. Abuhoff
• Position: Partner at the law firm of Debevoise & Plimpton
• Pages: 67-77

Page 67

In The Myth of Moral Justice,¹ Thane Rosenbaum's lament on "Why our Legal System Fails to Do What's Right,"² Mr. Rosenbaum puts forward a deceivingly simple proposition: the legal system should be about doing what is right or, as he sometimes puts it, what is moral. But when Mr. Rosenbaum looks at the legal world today, he does not see moral justice. Instead, to him the law appears to be about rules and procedures that make the legal process needlessly cumbersome, and worse, often obfuscate the truth. Drawing from literature and film, he cites numerous examples in fiction where the legal and the moral diverge. Mr. Rosenbaum also writes about the wasted potential of the legal system as a healing process. He envisions a courtroom where the aggrieved are given the opportunity to tell their stories and receive heartfelt apologies, but sees no appetite for such an approach among today's lawyers and judges. Instead, Mr. Rosenbaum complains, because the law has lost its moral moorings, legal practitioners have sublimated their emotional instincts to a hyper-technical approach. The result is an arid, soulless and often bloated legal process that leaves all who participate -litigants, lawyers and jurists- poorer for the experience.

Mr. Rosenbaum's criticism is off-base and his pessimism unwarranted. He fails to examine the fundamental differences between a moral system, on the one hand, and a system of justice on the other. A legal system like ours is not animated by any particular morasystem, but rather by a consensus on the desirability of individual freedoms. The law's primary purpose, then, becomes to preserve those freedoms, including the freedom to follow one's own moral code. At this, our law is generally successful. There is no denying the occasionally odd result, or that particular procedures are cumbersome, but such is the cost of a rule-based system of justice, which, in the end, is fairer and more consistent than a regime based on ad hoc determinations.Page 68

While entertaining, Mr. Rosenbaum's reflections on fictional jurisprudence prove a misleading approach to evaluating a legal system. And while the law's healing potential has a superficial appeal, Mr. Rosenbaum's proposals would almost certainly compromise our legal system's ability to do justice. This is illustrated by a brief discussion of the jury system, an American institution about which Mr. Rosenbaum's ambivalence is revealing.³

The Myth of Moral Justice concludes by reflecting on the role of the American lawyer. Mr. Rosenbaum is negative about the prospects of young lawyers to find meaning in the American jurisprudential system.⁴ But his book is useful in identifying the critical role lawyers must play in making sense of the legal system for their clients. A client's experience with the legal system and his view of the law is greatly enhanced by a lawyer who can explain why a system of justice will sometimes depart from an individual's view of morality, who understands the rationale behind legal principles, and who appreciates the efficacy and limitations of the law.

I Moral v. Legal

A nation's laws are derived from shared values that form the nature of the social contract. In some countries, consensus forms around a singular moral code embodied in a religion. Not so in the United States, where moral absolutism is not the rule. To the contrary, here the highest value is placed on personal freedoms -freedom of the press, freedom of religion, and so forth. As the Declaration of Independence put it: "life, liberty and the pursuit of happiness."⁵

A judge in the United States may be called upon to enforce laws that protect a sphere of actions by individuals and cultures that the judge himself may believe are wrong. Take, for example, Supreme Court Justice Anthony Kennedy's views on abortion. To the surprise of many who know him, Justice Kennedy supported the reaffirmance of Roe v. Wade,⁶ which preserved the right to abortion. In a subsequent lecture, according to a recent profile in the New York Times, the Justice's "'eyes filled with tears' as he explained his moral opposition to abortion,Page 69 but he said he could not impose personal views."⁷ "[I]t would be highly improper," Kennedy said, "for a judge to allow his or her own religious views to enter into a decision respecting a constitutional matter."⁸ According to the Times profile, Kennedy's "admirers see in him the essence of a judicial temperament: good judgment, fair-mindedness and a willingness to disentangle his own moral values from the law"⁹

Disentangle his own moral views from the law? This, according to The Myth of Moral Justice, is where the problem starts. But the book never faces up to the inevitable tension between any single moral system and the commitment in this country to individual freedoms. That commitment is reinforced by a capitalist economic system that thrives on individual initiative. In protecting individual freedoms, United States law also promotes economic efficiency. Contract law protects the legitimate expectations of those making a bargain in the marketplace. Tort law seeks to place responsibility on the party that can act most effectively to avoid an injury. Even the fundamental notion of private property, at its core, is designed to encourage the optimal development of resources. These bodies of law often comport with behavior we regard as fair, but it is important to recognize that they seek to promote economic, as well as moral, values.

Fundamentally, the United States legal system is not primarily about legislating moral behavior but about maximizing free choice -recognizing that limits must be placed on individual choice to protect the freedom of other individuals. There is good reason to favor this approach. The alternative is a state-mandated morality and a government empowered to impose on citizens the moral values of the powers that be. It is not too great a stretch to say that over the course of history the single greatest cause of mayhem and destruction is governmental force in the name of "right." The risks inherent in this approach are obvious.

Is identifying the "moral justice" system with state mandated morality an exaggeration? Clearly not. Rosenbaum argues passionately for rescue as a moral imperative that should be codified in the law. Indeed, he writes, "[p]erhaps nothing in the law reveals such a gross violation ofPage 70 moral failure as the absence of a duty to rescue."¹⁰ A society with such a law would save more lives, but would it be safe from a government empowered to penalize those with different with moral values? And, quite apart from the concern about empowering government to police morals, where is the virtue in rescue if it is required by the state? Only in a society where rescue is not mandatory, such as the United States, can a citizen's rescue truly reflect a moral...