The moral impact theory of law.

• Author: Greenberg, Mark
• Position: II. The Theory C. Clarifying Which Moral Obligations Are Legal Obligations through Conclusion, with footnotes and figure, p. 1319-1342

3. Clarifying Which Moral Obligations Are Legal Obligations

   Thus far, I have written informally of that part of the moral profile created by legal institutions. We need to do more to pin down which moral obligations are legal obligations.

   1. Pre-Existing Moral Obligations

      In some instances, legal norms have content that is the same as, or at least similar to, that of pre-existing moral norms. For example, the criminal law includes many legal obligations, such as obligations not to harm or kill other people, that have content closely related to moral norms that exist independently of the law. Thus, it might be thought that the relevant moral obligations are not created by the actions of legal institutions and therefore are not legal obligations. In that case, the Moral Impact Theory would have the consequence that some of what we take to be paradigmatic legal obligations, such as the obligation not to kill, are not legal obligations at all.

      The needed refinement is that we must understand "that part of the moral profile created by the actions of legal institutions" to include obligations that are altered or reinforced by the actions of legal institutions. (Rather than rewording the official statement of the theory, I will simply stipulate this clarification.)

      I begin with obligations that are altered. When a legislature enacts a criminal prohibition on conduct that is already morally prohibited, the legislature's action typically alters the content of the obligation.66 There are at least two lands of alterations in content--changes in the first-order content of the obligation, and changes in the remedies available in case of a violation. Consider the case of statutory rape. Before action by legal institutions, the content of the moral prohibition will be relatively vague, perhaps something along the lines of: sex with children is prohibited. Once the legal institutions have acted, the content of the prohibition will typically be much more precise. For example, the actions of the legislature may result in a precise age of consent. The content may become more precise in various other ways, for example, with respect to whether the prohibition applies to everyone or only to adults, whether the sex of the victim and perpetrator matter, whether there are exceptions for marriage, and so on.

      Next, legislative action will also typically alter the remedies or punishments for a violation of an obligation. Morality tends to be rather vague about remedies. In the case of punishment, perhaps morality says that a punishment must be proportional to the wrong, but offers little precise detail about what punishments would be proportional to specific wrongs. Indeed, as I suggested above, in part because of this indeterminacy, punishment is in general morally problematic without action by legal institutions. An important way in which legislation alters pre-existing moral obligations is therefore by making determinate the appropriate punishments for violations of those obligations. (I address below the related issue of eliminating uncertainty about moral obligations that are in fact determinate.) Legislation can thus make it morally permissible to punish violators. (67)

      In addition to altering pre-existing moral obligations, a legislative enactment of a criminal prohibition (on conduct that is already morally prohibited) typically results in new reasons for not engaging in the relevant conduct. The examples discussed above are relevant here. For example, the legislative action will often add reasons of fairness and democracy to the preexisting moral reasons. When reasons are added for engaging in conduct that is already obligatory, let us say that the pre-existing obligations are reinforced. (68) The Moral Impact Theory holds that moral obligations that are reinforced by the actions of legal institutions are among the moral obligations that are legal obligations.

   2. The Legally Proper Way

      The next refinement of the theory is that legal obligations are not just any moral obligations that are created by the actions of legal institutions. We need to limit the relevant moral obligations to ones that come about in the appropriate way--what I call the legally proper way. (69) We have an intuitive understanding of the legally proper way for a legal system to generate obligations, and we can articulate it theoretically by appealing to what legal systems are for or are supposed to do. Let me explain. Suppose a government persecutes a particular minority group. This persecution may include directives to harm members of that group or to deny them benefits. Such government actions are likely to have the effect on the moral profile of producing an obligation to protect or rescue the minority group, to disobey the directives, to try to change the policy, and so on. It is intuitively clear that an obligation that comes about in this way is not a legal obligation, despite the fact that it is the result of actions of legal institutions.

      The example suggests a necessary condition on the legally proper way for legal institutions to change the moral profile. If legal institutional action, by making the moral situation worse, generates obligations to remedy, oppose, or otherwise mitigate the consequences of the action, such obligations to mitigate have not come about in the legally proper way. Call this general way of changing the moral profile paradoxical (because the resulting obligations run in the opposite direction from the standard case). Moral obligations that are produced in the paradoxical way are not legal obligations.

      It is important to note that legal institutional action that generates moral obligations in the paradoxical way may also generate other moral obligations that are legal obligations. For example, Proposition 13, the 1978 California ballot initiative that restricted property taxes, made the moral situation worse and may therefore have generated moral obligations to try to repeal it, but it nevertheless generated legal obligations concerning the assessment of property taxes. (70)

      The necessary condition I have sketched matches our intuitive understanding of the way in which legal systems are supposed to generate obligations, and it is not ad hoc. As I mentioned above, on my view, a legal system, by its nature, is supposed to change the moral situation for the better. This understanding of what legal systems are supposed to do, or what they are for, explains why moral obligations that are generated in the paradoxical way are not legal obligations. The key idea is that, for an institution that, by its nature, is supposed to improve the moral situation, a method that relies on creating reasons to undo what the institution has wrought is a defective way of generating obligations. (71) I have illustrated my suggestion that we can use our understanding of what law and legal systems are supposed to do to explain which ways of generating obligations are legally proper--and therefore which obligations are legal. But I do not have a complete account of the legally proper way; further work is needed. (72)

      The Moral Impact Theory (version 3): The content of law is that part of the moral profile created by the actions of legal institutions in the legally proper way. 3. What Makes Something a Legal Institution

      Because my formulation of the theory uses the term legal institution, I want to conclude this Part by addressing briefly the question of what makes something a legal institution. (73) Although it is not the goal of the Moral Impact Theory to provide a theory of the nature of legal systems and institutions, I will offer a necessary condition. An important part of what it is to be a legal institution is to be part of a legal system, so an account of the nature of legal institutions depends on an account of the nature of legal systems. On my view of law, again, it is essential to legal systems that they are supposed to improve the moral situation. Therefore, a necessary condition on a legal institution is that it be an organization that, by its nature, is supposed to improve the moral situation. (74) (Again, the claim is not that legal institutions always improve our moral situation, but that they are defective to the extent that they do not.) This point explains, for example, the fact that an organization of powerful thugs that controls a community is not a legal system or a legal institution. It is no part of the organization's nature that it is supposed to improve the moral situation. Scott Shapiro makes a similar argument in Legality. (75)

      The foregoing is one necessary condition on legal systems and institutions; there are certainly other necessary conditions. It is not my purpose here to develop a complete account--the Moral Impact Theory is consistent with a range of accounts, and others have done important work on this topic. For example, Joseph Raz argues that legal systems are distinguished from other institutionalized systems by their claiming authority to regulate any type of behavior and by their claiming to be supreme (76) Shapiro argues that Raz's analysis fails to capture the relevant distinction; he offers, instead, the thesis that a legal system must be self-certifying, i.e., "free to enforce its own valid rules without first having to establish their validity before some superior official or tribunal (if one should exist)." (77)

      Finally, at least in mature and stable legal systems, uncertainty about what a legal institution is will not in practice lead to much uncertainty about what the law is. For, in practice, there is a great deal of consensus about which institutions are legal institutions. (In immature or unstable legal systems, where there is uncertainty about what the legal institutions are, the Moral Impact Theory predicts that there will be uncertainty about what the law is.) It's also worth noting that, as Raz and Shapiro note, it is plausible that the features that distinguish a legal system (or...