The moral impact theory of law.

• Author: Greenberg, Mark
• Position: I. Situating the Theory through II. The Theory B. How Legal Institutions Change the Moral Profile, p. 1288-1319 - Author abstract

ESSAY CONTENTS INTRODUCTION I. SITUATING THE THEORY II. THE THEORY A. Preliminary Clarifications and Refinements 1. What Do I Mean by Moral Obligations? 2. The Moral Profile 3. Legal Texts Versus Legal Standards B. How Legal Institutions Change the Moral Profile C. Clarifying Which Moral Obligations Are Legal Obligations 1. Pre-Existing Moral Obligations 2. The Legally Proper Way 3. What Makes Something a Legal Institution III. THE MORAL IMPACT THEORY AND LEGAL INTERPRETATION A. A Statutory Interpretation Example B. The Relevance to Statutory Interpretation of Factors Other than Actions of Legal Institutions C. Clarification of the Need for an Ambitious Moral Theory IV. OBJECTIONS A. Arbitrary and Evil Legal Norms B. Moral Disagreement CONCLUSION INTRODUCTION

In this Essay, I develop an alternative to the two main views of law that have dominated legal thought. My view offers a novel account of how the actions of legal institutions make the law what it is, and a correspondingly novel account of how to interpret legal texts. According to my view, legal obligations are a certain subset of moral obligations. (1) Legal institutions--legislatures, courts, administrative agencies--take actions that change our moral obligations. They do so by changing the morally relevant facts and circumstances, for example by changing people's expectations, providing new options, or bestowing the blessing of the people's representatives on particular schemes. My theory holds, very roughly, that the resulting moral obligations are legal obligations. I call this view the Moral Impact Theory because it holds that the law is the moral impact of the relevant actions of legal institutions. (2)

In order to provide an informal introduction to the theory, I begin by illustrating the theory's account of statutory interpretation and contrasting that account with two more familiar accounts of statutory interpretation (those offered by the two main opposing views of law). I use an example drawn from the well-known case of Smith v. United States. (3) Smith had offered to trade a gun for cocaine. The Supreme Court divided over the question whether he was properly sentenced under a statute that provides for increased penalties if the defendant "uses ... a firearm" in a drug-trafficking or violent crime.

According to a standard account of what statutory interpretation involves, in interpreting a statute, we seek the meaning or, better, the linguistic content of the statutory text. (4) This account is assumed without argument by both the majority and dissenting opinions in Smith. (5) Smith highlights a serious problem for this account, however. As the contemporary study of language and communication has made clear, there are multiple components and types of linguistic content. (6) In Smith, there are at least two types of linguistic content plausibly associated with the statutory text that would yield opposite outcomes in the case. First, there is the semantic content of the statutory text--roughly, what is conventionally encoded in the words. Second, there is the communicative content--roughly, what the legislature intended to communicate (or meant) by enacting the relevant text. (7)

Trading a firearm is within the semantic content of the phrase "uses a firearm," so the semantic content yields the result that Smith was properly sentenced. Plausibly, however, Congress intended to communicate that using a gun as a weapon was to receive an increased penalty. (8) For illustrative purposes, I will assume that this was Congress's intention--what Congress meant. Thus, the communicative content yields the result that Smith should not have been sentenced to the increased penalty.

The familiar account according to which interpreting a statute is extracting its linguistic content has no way of adjudicating between multiple linguistic contents of the statutory text. The statutory text in Smith has both a semantic content and a communicative content, and they point in opposite directions. The account therefore offers no answer to the problem posed by Smith's trading a gun for cocaine.

The opposing account of statutory interpretation associated with Ronald Dworkin's influential theory of law instructs us to seek the principle that best fits and justifies the statute. (9) In Smith, we have two salient candidate principles: that use of a gun for any purpose in connection with a violent or drug crime warrants additional punishment; and that use of a gun as a weapon in connection with a violent or drug crime warrants additional punishment. Both principles fit about equally well--after all, the Supreme Court was sharply divided over which of these two better captured the meaning of the statutory text, and we have noted that both are plausibly linguistic contents of the text. On Dworkin's account, the question then becomes which principle is morally better--i.e., which principle would, ex ante, be a better one to have. (10) Assuming that one principle is better than the other, Dworkin's account thus does offer an answer to our problem. But the way in which it does so is problematic. At least in general, a straightforward appeal to which interpretation yields a morally better standard does not seem permissible in legal interpretation.

On the account of statutory interpretation implied by my theory of law, we interpret a statute by seeking to discover what impact the enactment of the statute, along with relevant circumstances, had on our moral obligations. Thus, we ask not which rule is morally better ex ante, but which moral obligations, powers, and so on (if any) the legislature actually succeeded in bringing about. What is the moral consequence of the fact that a majority of the members of the legislature, with whatever intentions they had, voted for this text, with its semantic content? Thus, for example, the semantic content and the communicative content of the statutory text are relevant if, and to the extent that, moral considerations, such as considerations of democracy and fairness, make them relevant. It might be argued on democratic grounds, for example, that the fact that popularly elected representatives intended to communicate a particular decision provides a reason in favor of citizens' being bound by that decision. But the upshot of democratic considerations is a complex matter. A counterargument could be mounted that such a decision is binding on citizens only to the extent that it is encoded in the meaning of the words that the legislature used--mere intentions are not enough. Or it might be argued that, in the actual circumstances of a particular enactment, for reasons of both fairness and democracy, the public's understanding of a statute's effect matters more than the legislature's actual intentions or the meaning of the words. To the extent that moral considerations point in different directions, interpreting the statute will require determining what the moral impact of the statute is, after all of the relevant values have been given their due. And the answer to this question may not correspond to any linguistic content of the statutory text.

It's worth noticing how natural this account of statutory interpretation is. Return for a moment to the standard account, according to which statutory interpretation seeks the linguistic content of the statutory text. When faced with two or more linguistic contents that are competing candidates for a statute's contribution to the law, it is very natural to appeal to considerations such as democracy and fairness to try to adjudicate between them. For example, one might try to argue that certain democratic considerations require that the statute be interpreted in accordance with what the legislature intended to communicate, rather than in accordance with the semantic content of the text. Once we have gone this far, it is difficult to resist the conclusion that we need to ask what the moral implications of the statute's enactment are on balance, that is, taking all of the relevant values into account, as opposed to what certain aspects of democracy or fairness by themselves would support.

I have just sketched a way in which the Moral Impact Theory makes a difference at a relatively practical level--with respect to our understanding of statutory interpretation. Before concluding this Introduction, I would also like to indicate how the theory relates to a larger understanding of law's nature and, in particular, of what law, by its nature, is supposed to do or is for. (11) Often our moral situation is worse than it could be in a particular way--namely, that it would be better if our moral obligations (and powers, and so on) were different from what they in fact are. For example, consider a situation in which a community faces a problem, and there are many different ways to go about solving the problem. For a variety of reasons--for instance, because one person's efforts toward any given solution would not make a difference without participation by many others--it is not the case that anyone has a specific obligation to participate in a particular solution. But it would be better if everyone did have such an obligation. The legal system can change the moral situation for the better by changing the circumstances so that everyone does have the obligation to participate in a particular solution. Although I will not argue for it here, my view is that it is part of the nature of law that a legal system is supposed to change our moral obligations in order to improve our moral situation--not, of course, that legal systems always improve our moral situation, but that they are defective as legal systems to the extent that they do not.

The Moral Impact Theory fits smoothly into this background understanding of law. Legal institutions take actions to change our moral obligations by changing the relevant facts and circumstances. (In Section II.B., I explore a variety of ways in which they are able to do so.)...