Law And Morality Notes

Law and Morality

NB: ‘GD’ means ‘Great Debates’ by Sandy Steel and Nicholas McBride

What does ‘morality’ refer to?

Finnis: A person chooses how to act in any given situation in two stages: (1) a practical judgment, and (2) the self-directing choice. Morality refers to the “available criteria for assessing [one’s] decisions as good or bad”.

• Good refers to when a person chooses to put into practice practical judgments which are true, and bad refers to when the practical judgment and self-directing choice do not line up.

• The actor’s choice is affected by the law: “the primary reality of law is … in its claim on my deliberating about what to decide” – a “claim on my action”.

Steel: ‘Moral’ could carry various meanings, for example:

1. ‘subject to moral assessment’

   • In which case the law does pursue ‘moral ends’; what the law does can be evaluated morally.

2. ‘morally valuable’

   • In which case a moral end would be an end of positive moral value

Modal, functional, social constructionist and non-social constructionist models of law

Three main parts to contemporary jurisprudence:

1. Social construction question – is law a social construction?

   • Legal positivists: Yes – legal validity is a matter of the social practice of legal officials.

   • Natural lawyers: Not entirely. The content of the law on some issues necessarily depends upon moral truths.

2. Functionalist question – is it part of the nature of law that it pursues a particular function, where that function is relatively distinctive to law?

   • Functionalists: Yes.

   • Others: There are no functions that law necessarily pursues which mark it out as a distinctive phenomenon.

   • Legal theories can be classified by whether it considers law to be principally a modal kind (characterised by its mode of achieving various goals) or a functional kind (characterised by the specific function or functions it pursues)

3. Coercion question – is coercion part of the nature of law?

   • (see later chapter)

Instrumentalists: Law can be best identified as an institution by its means rather than the ends it serves.

Social constructionist + Modal:

• Hart: Law’s function is to guide and criticise conduct, but this is not unique to law. What is unique to law is the ways in which it guides conduct – through primary and secondary rules (instrumentalist).

  1. NB: A legal system only exists if (1) primary rules are generally obeyed, and (2) officials accept secondary rules as standards of official behaviour.

• Hart: The content of the law depends on social facts, i.e. about the practices that officials have accepted. Legal ‘oughts’ need not be moral ‘oughts’. The law is not telling you that you have a moral obligation – the law is merely changing your legal position. The law makes no claim about the moral character of those legal obligations. The law is socially constructed legal rules are just the rules of the game.

  1. Support for Hart: judges create legal rules without stating any moral reason for them sometimes, e.g. planning permission, parking fines.

Social constructionist + Functional:

• Fuller: Law can only be understood by looking to its purpose: governing human conduct by rules. To count as law, there must be some compliance with the RoL via the 8 desiderata of legality: rules which are published, prospective and with which it is possible to comply; they should be intelligible, non-contradictory and reasonably stable across time, and officials must act in accordance with the published rules. Such criteria can only be understood if we accept that the law’s purpose is the governance of human conduct by rules.

  1. A legal system must comply to some extent with the desiderata.

  2. The desiderata are necessary but insufficient for a law being morally good.

  3. Waldron: When the law complies with the RoL, it treats people with a kind of dignity by acknowledging their ability to decide what to do.

     1. Steel: Dignity is a threshold concept. If the law is very morally odious, it will not treat people with dignity even if it is clear, stable, etc.

• Simmonds: Law is an archetypal concept. The abstract definition is provided by Fuller’s desiderata. The more law complies with this archetype, the more it promotes liberty. Law’s archetype is therefore a moral aspiration.

  1. Simmonds and Fuller claims that even if a bad law is produced, fulfilling the desiderata makes for a better legal system.

• Finnis: The function of law is to guide people’s behaviour in order to enable people to participate in morally valuable activities. Law’s function is so central that failing to achieve that purpose makes something less law-like. Note that Finnis also thinks there are objective basic goods for human beings, e.g. health.

Non-social constructionist + Functional:

• Dworkin: Law is an interpretive concept. The function of law is to insist that official coercion is only used to the extent that it is justified by past political decisions. The best conception of law is ‘law as integrity’: that the point of legal practice is to come up with the best justification of past legal practice. Thus the content of the law in a legal system consists of the best moral justification of past political decisions.

  1. Legal practice itself is fundamentally interpretive: judges embark on constructive interpretation of past practices.

• In Justice for Hedgehogs, Dworkin even goes so far as to claim that law is a branch of political morality. He claims that legal rights are moral rights that can be enforced by the courts.

  1. BUT he fails to explain why enforcement is the criterion which distinguishes legal and moral obligations. He also does not account for unenforceable legal obligations.

• Greenberg: The ‘moral impact theory’: legal obligations are moral obligations which arise due to the actions of legal institutions. Thus moral obligations are made ‘legal’ due to their mode of creation.

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