Preface.

• Author: Porter, Robert R.

From the first day of classes, students at many American law schools encounter an insistence that systematic and rigorous analysis of the law requires "the separation of law and morality." In such a basic form, however, this separation thesis--generally understood as the defining characteristic of legal positivism--is ambiguous and misleading. Some interaction between law and morality is beyond dispute. No one doubts that widely shared moral beliefs serve as a source in the development of law--legislators and even judges draw upon moral ideas when making and applying the law. Law has also long served as a source in the development of morality. Aristotle highlighted the dependence of morality on law in the closing pages of his Nicomachean Ethics, the most comprehensive treatise on the moral virtues in antiquity.

Law and morality are not, however, coextensive. Some aspects of our lives seem appropriate for moral regulation but not for legal control. Philosophers beginning with Plato have noted a distinction between what is legally or conventionally right and what is naturally (or, as many would say today, morally) right. Indeed, legal norms are often subject to criticism from a moral point of view. The precise contours of the relationship between law and morality are complex and deserve serious discussion. The essays and articles presented here address this relationship from a variety of perspectives.

As has been the Journal's tradition for more than a quarter-century, we are pleased to publish highlights from this past year's National Federalist Society Student Symposium. The twelve collected essays approach the theme of "Law and Morality" by discussing moral choices and the Eighth Amendment, government promotion of moral issues, the morality of First Amendment jurisprudence, and same-sex marriage in constitutional theory. Judge William Pryor's keynote address confronts directly the role of religion and morality in the practice of judging, arguing that although particular doctrines may not be used in deciding cases, motivational moral and religious influences may help a judge discharge his duty to protect and defend the Constitution.

We thank the Federalist Society for sponsoring this Symposium, Professor Steven Calabresi for helping to organize its proceedings, and the speakers who shared their reflections first with the student attendees and now with our readers.

The Journal is particularly pleased to present Professor Robert P. George's...