Law's limited domain confronts morality's universal empire.

• Author: Alexander, Larry
• Position: The Relationship of Law and Morality in Respect to Constitutional Law

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.

1. 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.

2. 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. (6) We do not look for it--at least as an initial matter--in Plato's Republic, in John Stuart Mill's On Liberty, in papal encyclicals, in New York Times editorials, in law review articles, or even in the laws of foreign jurisdictions. (7) And when we occasionally do consult these latter sources of practical reasons to ascertain the law, we typically do so only because judicial decisions, constitutional provisions, statutes, and other similar primary legal items purport to authorize us to do so.

   Indeed, just as law's limited domain of reasons and their sources can be expanded by authorization from within that limited domain, so too is that limited domain kept limited by explicitly making some sources of practical reasons legally out of bounds. In the United States, religious sources may not be used as legal sources, though the issue is of course a good deal more complex than that flat statement reveals. (8) And there are other potential, and even potentially reliable, sources of reasons for legal decisions that are legally impermissible, such as what the judge's mother, or what a major political figure, conceivably for very good moral reasons, would like the judge to decide.

   Moreover, we can understand why law has a limited domain. Law exists against a background of moral disagreement and moral uncertainty; for if people generally agreed about what morality required, there would then not be much reason to substitute law for the direct moral decision making of citizens and officials alike. But because this is not a world we recognize, and because moral and practical disagreement seems endemic to the human condition, law must step in to settle practical controversies over what ought to be done. But law can fulfill this role only if its domain--the reasons law consults to determine what ought to be done is less than that of all practical reasons or even of all moral reasons. In any society not made up of all-knowing gods--including societies made up of totally altruistic but not all-knowing angels--deciding what ought to be done only by recourse to the entire domain of practical reasons or moral reasons would serve more to foment disagreement than to ameliorate it. A legal system in which the law (embodying legal norms as well as legal officials and legal procedures) were coextensive with the universe of moral norms would serve primarily to embroil the citizens in never-ending and enormously morally costly controversy over what "the law" required. There would also be controversy over seemingly more procedural issues whose resolution had moral valence, such as the question even of who counted as a legal official and whether a controversy did or did not belong in the legal system. Settling such matters and avoiding the huge moral costs of controversy requires recourse to a limited domain of reasons about which there is little controversy, or, if controversial, the content of which can be authoritatively settled by officials or by procedures that can be noncontroversially identified. And that is why we have both argued that one of law's principal functions--perhaps its single principal function--is its settlement function. (9) And the settlement function necessitates, as a practical matter even if not as a strictly logical one, that law consult a limited domain of reasons. (10)

   Let us expand a bit on why law must have a limited domain in order to fulfill its crucially important settlement function. If people were gods--if they were all-knowing--then they could determine on their own what the totality of practical reasons required of them for each practical decision they faced. That knowledge would have to include the knowledge of what everyone else was going to do--assuming that doing the right thing always requires anticipating the behavior of others--but we have stipulated that these people are omniscient. And with the benefit of this omniscience, these people would have no need of simplified guidance with respect to the dictates of morality.

   In such a world, law would therefore have no moral function. Morality would be a sufficient guide, as everyone would know what was morally required in each situation. And in such a world, law would either replicate morality exactly, in which case it would be otiose, or it would diverge at various points from morality, in which case it would be immoral. Of course, the people we have imagined are all-knowing gods, and not necessarily maximally moral angels, so they might not be motivated to comply with what they know morality demands. Nevertheless, if they did not comply, morality itself would dictate how others should respond to them. After all, there are moral theories of corrective and retributive justice that have, as their subject matter, non-angelic behavior. (11)

   In the world we inhabit, however, people are neither angels nor, more importantly, gods. And in this world law does have a function, and that function is best understood as a moral one. This is because the norms of morality are not themselves in our world a sufficient guide to which course of action is morally necessary. Such failure of morality to guide effectively is sometimes the consequence of the shape of morality itself, for the often abstract content of morality makes it likely to be debated and uncertain. And sometimes morality's ineffectiveness as a practical guide stems from the way in which the concrete demands of morality turn in a vast number of instances on so many factual determinations that they are beyond the ken of ordinary (or even extraordinary) people. The domain of morality, even though it may not be co-terminus with the domain of all practical reasons--moral reasons are, for example, often thought to be different from reasons of prudence or etiquette--nonetheless takes all of these practical reasons into account. So in a very real sense, morality comprehends and weighs all...