Four reflections on law and morality.

• Author: Moore, Michael S.

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 INTRODUCTION

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)

1. HOW DOES MORALITY RELATE TO THE LAW WE HAVE?

   So the first topic: how is law related to morality? With apologies to Herbert Hart--who accused us American jurisprudes of being "obsessed" with judicial behavior (4)--I still think that this question of how law is related to morality is best approached through judicial obligation. Provisionally at least, fix law as that which obligates judges in their role as judges, and then ask: how ought judges use morality in their decision of disputed law cases? So proceeding temporarily suspends the question of whether such morality--the morality judges are obligated to use in their role as judges--is or is not part of the law. By stipulative definition, assume for now that it is, and then ask the more practically interesting question: how should morality properly enter into judicial decisions?

   1. Morality in Judicial Reasoning

      I have killed as many trees as anyone on this topic, with over-long and rather elaborate argumentation. (5) Yet at the end of the day it seems to me that there are only four, not very complicated ways that morality properly enters judicial reasoning. The first two stem from what I will call "the obvious law"--the stuff (like statutes) that everyone's theory of law would classify as law. (6)

      1. The Explicit Incorporation of Morality by Obvious Law

         First is the explicit incorporation of morality by such obvious law. (7) When statutes award custody of minor children to that parent most likely to further the best interest of the child, award citizenship only to those applicants possessed of good moral character, and deport those convicted of crimes of moral turpitude, they explicitly require judges to make moral decisions in the course of their making legal decisions. Likewise, when constitutions such as that of the United States require judges to review statutes to see whether they give the process that is due persons, protection of the laws that is equal, and respect each citizen's rights to free speech, free exercise of religion, freedom from unreasonable searches and seizures, etc., they require judges to reach legal conclusions based on moral premises. Similarly, when the common law makes tort liability turn on whether one behaved reasonably, or when statutory law justifies what would otherwise be criminal conduct by a balance of evils defense, judges must make moral decisions in order to make legal decisions.

         Such explicit incorporation of morality by the obvious law poses problems for some kinds of positivistic theories of law, (8) but taking sides in such domestic debates is not here my concern. Irrespective of whether or not a legal theory can accommodate the fact and remain positivistic, it is unquestionably true that judges in legal systems with obvious law like ours have to make some kind of moral decisions in order to apply such laws to the cases before them.

      2. Morally Justifying the Authority of Obvious Law

         Second, there is what I shall call the regressive considerations of the thoughtful judge. (9) Judges make people do things they do not want to do. With all the force of the state behind them, they coerce people into giving up their money, their liberty, their children, and their lives. Such coercion requires justification. The immediate justification for each occasion of judicial coercion is of course the (obvious) law itself: a judge might justify his judgment in a particular criminal case, for example, by a penal statute which directs him to so decide. But the thoughtful judge regresses the question of justification: what justifies the judge in regarding that criminal statute as imposing this obligation upon her? The answer is presumably in terms of some doctrines of legislative supremacy and the ban on common law crimes. But what makes those doctrines a source of judicial obligation? Presumably, some political ideals such as democracy, the separation of powers, and the rule of law. By this time the thoughtful judge is deep into the morality of such ideals even in applying the most obvious law to the most obvious cases.

         The difference between a natural lawyer and a positivist does not lie in how judges should be thoughtful about the source of their obligations. Rather, the difference lies in seeing such ideals as the rule of law, democracy, and the separation of powers, as part of the standards that obligates judges in their role as judges, or, by contrast, as reasons not part of such standards even though they are reasons for playing such a role to start with. Consider a work-week metaphor: the positivist sees the judge while off the bench on Sundays, sitting by Hume's reflective fireside musing about the role of judging. The thoughtful judge sees that, as a person, she needs to justify the coercive job she does on Monday through Friday, and that the justification for continuing this job lies in ideals like democracy, the separation of powers, and the rule of law. Yet on Monday morning when she steps into role by putting on the judicial robes, those ideals drop away as she does her job. The ideals justifying the playing of the role, in other words, do not enter into how the role is played. The baseball umpire (to adopt the simple-minded simile of our new Chief Justice) (10) may have to use morality to justify being an umpire at all, but once that is done and he is behind the plate, the values justifying his playing that role have no purchase on how to call the balls coming over the plate.

         This attempt to cabin the recourse to morality by judges--they may use morality to justify the role but not use morality in playing the role so justified--sounds better than it is. I shall defer saying why until we have before us all four ways in which morality enters judicial reasoning. (11)

      3. Morality in Hard Cases

         The third way is a very familiar one. It stems from the inevitable indeterminacies of the obvious law. Jeremy Bentham proclaimed that ideally we would draft a book of laws so comprehensive that citizens need but open the book to know the legal consequences attached to any possible action by them. (12) Bentham projected a ten-volume treatise on the science of legislation that he wanted to write, although he only completed the first of these volumes. But we all know that even if he had...