moral law essay

ESSAY CONTENTS

The moral impact theory of law.

abstract . 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. 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. In this Essay, I elaborate and refine the theory and then illustrate and clarify its implications for legal interpretation. I also respond to important objections.

author . Professor of Law and Associate Professor of Philosophy, UCLA; Faculty Co-Director, UCLA Law and Philosophy Program. For valuable discussions and comments on this paper or ancestors of it, I would like to thank Larry Alexander, Selim Berker, Mitch Berman, Jules Coleman, Ronald Dworkin, Les Green, Barbara Herman, Scott Hershovitz, Pamela Hieronymi, Ken Himma, Kinch Hoekstra, A.J. Julius, Frances Kamm, Sean Kelsey, Christine Korsgaard, Brian Leiter, Harry Litman, Andrei Marmor, Herb Morris, Steven Munzer, Derek Parfit, Stephen Perry, David Plunkett, Joseph Raz, Larry Sager, Scott Shapiro, Seana Shiffrin, Scott Soames, Larry Solum, Nicos Stavropoulos, and Jeremy Waldron. I am especially grateful to Andrea Ashworth, Seana Shiffrin, and Scott Shapiro for many invaluable conversations. Special thanks to Ben Eidelson and other editors of the Yale Law Journal for helpful suggestions.

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.) With important qualifications, the resulting moral obligations are legal obligations. If a legal system is, by its nature, supposed to change moral obligations, it is not surprising that the central feature of law—its content—is made up of the moral obligations that the legal system brings about. Moreover, the view that a legal system is supposed, not merely to change moral obligations, but to do so in a way that improves the moral situation will, as we will see, play an important role in determining which of the moral obligations that result from actions of legal institutions are legal obligations.

Here is the plan for the rest of the Essay. In Part I, I situate the Moral Impact Theory more fully by contrasting it with two dominant views of law. In Part II, I develop the theory, beginning with a rough formulation and gradually refining it. In Part III, I illustrate the theory’s implications for legal interpretation in greater detail than I did at the start. In Part IV, I address two important objections to the theory.

I. situating the theory

The Moral Impact Theory stands in opposition to two dominant views of law. In the Introduction, I sketched the difference between the Moral Impact Theory’s account of statutory interpretation and those of the dominant views. In this Part, I introduce the two opposing views properly and explain briefly how the Moral Impact Theory differs from them.

A few preliminaries. In a jurisdiction like that of the United States or Massachusetts or France there are many legal obligations, powers, privileges, and permissions. I will refer to all of the legal obligations, powers, and so on in a given jurisdiction at a given time as the content of the law . 12 (For brevity, when context prevents confusion, I will sometimes simply use the law for the content of the law. 13 ) It is uncontroversial that at least many facts about the content of the law in a given jurisdiction are not among the ultimate facts of the universe. 14 Rather, we can explain why those facts obtain in terms of more basic facts, including, of course, facts about what various legal institutions such as legislatures, administrative agencies, and courts did and said and decided. I will use the term determinants of legal content —or determinants , for short—for the more basic facts that determine the content of the law. 15

A theory (or view ) of law, in the sense in which I use the term, is a constitutive explanation of the content of the law—i.e., an explanation of which aspects of which more basic facts are the determinants of legal content, and of how those determinants together make it the case that the various legal obligations, powers, and so on are what they are. 16 An example of the sort of thesis that could be part of a theory of law is the thesis that the content of constitutional law in the United States is constituted by the original public meaning of the text of the U.S. Constitution.

The first of the two dominant views of law is the Standard Picture . According to this vague picture—I hesitate to call it a theory—the content of the law is primarily constituted by linguistic (or mental) contents associated with the authoritative legal texts. 17 The Standard Picture is extremely widely taken for granted, and assumed to be common ground (though it is rarely explicitly espoused). In characterizing the Standard Picture, I use the phrase “linguistic content” rather than “meaning” because the latter has multiple senses, and I am trying to get at a particular one—what we might call meaning, strictly speaking . 18 Some linguistic contents are constituted by the contents of mental states. For example, on a common view, the speaker’s meaning of an utterance is determined by the content of certain of his or her communicative intentions. Moreover, the Standard Picture is often relaxed to include the contents of other mental states associated with an authoritative text, such as the content of a legislature’s intention to achieve particular legal effects by enacting a statute.

The Standard Picture has deep roots in ordinary thought about the law. A simple version of this picture is encapsulated in the layperson’s idea that the law is what the code or law books say. And among legal philosophers, the Standard Picture is widely taken for granted. 19 One reason is that it dovetails with—and indeed fills a gap in—legal positivism, the most widely held position in philosophy of law. 20 A central positivist thesis is that the content of the law depends, at the most fundamental level, only on social facts, understood as non-normative, non-evaluative facts. 21 But legal positivism does not specify how social facts determine the content of the law. To say that the content of the law is determined, at the most fundamental level, by social facts alone does not yet tell us, for example, how statutes contribute to the content of the law. One manifestation of this gap is that positivism by itself does not yield an account of statutory interpretation—of how to discover a statute’s contribution to the content of the law. How do we get from the fact that a given statute was enacted to the statute’s contribution to the content of the law?

In general, it is a difficult problem to say how practices, decisions, and the like determine unique norms. 22 The Standard Picture offers what appears to be an easy solution: the linguistic contents of the authoritative pronouncements are the contents of the legal norms. Moreover, the solution 1) is intuitively appealing to many (as noted, the idea that the law is what the texts say has deep roots in ordinary thought), and 2) requires no appeal to moral or other normative facts. Unsurprisingly, then, the Standard Picture is the standard positivist view with respect to that issue. 23 The Standard Picture yields the account of statutory interpretation, discussed in the Introduction, according to which the interpretation of a statute is primarily a matter of extracting its linguistic content—an account that would be accepted by most positivists.

The widespread assumption of the Standard Picture also plays a role in explaining legal positivism’s influence. Unlike positivism, the Standard Picture is typically an implicit assumption that is rarely explicitly acknowledged or defended—and, indeed, it is often assumed to be common ground. 24 And the widespread assumption of the Standard Picture biases the debate in favor of legal positivism. Because the Standard Picture holds that the law is primarily constituted by the contents of authoritative pronouncements, it leaves only a limited role that morality could play. All of the anti-positivist options that, given the Standard Picture, are most naturally taken to be available suffer from obvious and serious problems. 25

This completes my introduction of the Standard Picture, the first of the two dominant views to which my view is opposed. In sum, the Standard Picture is widely taken for granted, and assumed to be common ground, by contemporary philosophers of law (though it is rarely explicitly espoused). 26

The second main view is that of Ronald Dworkin, which, though well-known and influential, is far less widely accepted than the Standard Picture. 27 Dworkin conceives of the law as an underlying, idealized source from which all legal practices flow. More specifically, the content of the law is the set of principles that best morally justifies past legal and political practices. 28 Dworkin famously explicated the relevant kind of moral justification with his notions of fit and justification. 29

The Moral Impact Theory, like Dworkin’s theory and unlike the Standard Picture, holds that the relation between legal practices and the law is a moral one. But, unlike Dworkin’s theory, the Moral Impact Theory holds that the law is the moral impact or effect of certain actions of legal institutions—i.e., the moral obligations that obtain in light of those actions—rather than the set of principles that best justify them. To use a spatial metaphor, on the Moral Impact Theory (as on the Standard Picture), the law is downstream of the legal practices; on Dworkin’s theory, by contrast, the law is upstream of the legal practices. Figure 1 illustrates this contrast. 30

There are several other closely related differences between the Moral Impact Theory and Dworkin’s view. First, the Moral Impact Theory makes no appeal to Dworkinian interpretation—that distinctive form of interpretation according to which the basic question is which interpretation would make the legal system the best it can be, or, more specifically, which principles best morally justify the practices of the system. In fact, according to the Moral Impact Theory, working out the content of the law is not a genuinely hermeneutic enterprise—rather, it involves straightforward moral reasoning about the moral consequences of various facts and circumstances. Second, according to the Moral Impact Theory, the content of the law is a subset of what morality, taking into account all the relevant considerations, requires. By contrast, there is no obvious reason why the set of principles that best morally justifies the actual practices of a legal system would be a subset of what morality requires. Certainly, Dworkin never argues for or even suggests any such claim. 31 On the face of it, one might expect that the principles that best fit and justify the actual, often severely morally flawed, practices would be principles that one should not follow, even given the existence of the legal practices. And, in fact, Dworkin accepts that legal requirements may not be moral requirements, indeed that law may be “too immoral to enforce.” 32 Finally, the Moral Impact Theory does not license an argument that because a standard would be a morally good one ex ante, it is part of the content of the law. On Dworkin’s view, however, the fact that a principle is more morally justified counts in favor of its being part of the content of the law; moreover, as we saw with respect to the Smith example, whenever the competing candidate principles fit roughly equally well, the fact that a principle is more morally justified is decisive. In sum, though both the Moral Impact Theory and Dworkin’s theory afford morality an important role, they offer very different accounts of the content of the law.

The three views considered here yield very different understandings of legal interpretation as well. The Standard Picture holds that legal interpretation involves answering the question: what is the linguistic content of the legal texts? On this picture, there is little or no role for moral reasoning in legal interpretation, except perhaps when the legal texts explicitly involve moral terms. 33

On Dworkin’s view, legal interpretation involves answering the question: which principles best morally justify the legal practices? In terms of the heuristic that Dworkin often used to explain his account of legal interpretation, it involves finding the most morally justified interpretation that sufficiently well fits the legal practices. 34 The Moral Impact Theory rejects both understandings of legal interpretation. It takes the question of legal interpretation to be: what is morally required as a consequence of the lawmaking actions? And it does not understand the universe of lawmaking actions to consist exclusively of issuing texts. When the relevant actions do involve issuing texts, the linguistic content of those texts is only one relevant consideration in the calculation of the moral impact of the actions.

The prominence of the Standard Picture and the Dworkinian view may make it seem that there is a stark choice: either legal interpretation does not involve moral reasoning or it involves the kind of moral reasoning that Dworkin spells out—moral reasoning directed at answering the question of which candidate interpretation makes the legal system “the best it can be,” 35 to use Dworkin’s phrase. The Moral Impact Theory opens a third way: legal interpretation involves moral reasoning about what is required as a consequence of the relevant lawmaking actions. 36

I mentioned in the Introduction one reason that the Moral Impact Theory is a natural position. We can now recognize several other, closely related reasons. First, at least for many theorists, it is plausible that moral reasoning has a place in legal interpretation. But, as mentioned above, it seems wrong to think that the relevant kind of moral reasoning is moral reasoning concerning which interpretation of a legal text would be ex ante morally preferable. The Moral Impact Theory’s account of statutory interpretation allows a role for moral reasoning that is more procedural. We ask about the moral implication of the fact that, say, the legislature enacted a statute or a court decided a controversy in a particular way, not about which interpretation of the statute or judicial opinion would be morally best. As we will see, the fact that a legal institution acted in a particular way can, along with background circumstances, change our moral obligations—for example, making participation in a particular scheme morally obligatory, despite the fact that the scheme is seriously morally flawed.

Second, legal systems treat legal obligations as genuinely binding obligations that are generated by the legal institutions. The Moral Impact Theory vindicates this treatment. It maintains that the legal obligations are the genuinely binding obligations that are generated by the legal institutions. By contrast, on the Standard Picture, the legal obligations are simply constituted by the linguistic contents of the pronouncements of legal institutions. In general, there is no reason to think that such “obligations” are genuinely binding. For similar reasons, legal positivists have struggled to explain the use of the term legal obligation . For example, influential positivists have argued that to say that there is a legal obligation is to say that, from the perspective of the legal system, there is a moral obligation. 37 The account thus denies the commonsense view that a legal obligation is a kind of obligation at all. For, on this view, it can be true that one has a legal obligation despite the fact that one has no obligation (as long as the legal system takes one to have a moral obligation).

Third, the Moral Impact Theory makes it easy to explain our dominating concern with law. We generally treat the law not merely as one relevant consideration among many, but as a central concern, indeed as excluding the relevance of other considerations. It is easy to understand why we would have such interest in the moral consequences of the legal practices. If the legal institutions change what we are obligated to do, it is vital to work out that change. By contrast, it is much less easy to understand why we would be interested in identifying the principles that best justify the legal practices (or that make them the best they can be). More precisely, although we might be interested in such principles, for example because of the value of principled consistency, they would be merely one relevant consideration in reaching practical judgments.

A similar point applies to the Standard Picture. The ordinary meaning of the legal texts is obviously a relevant consideration in practical deliberation, but it is hard to see why it would deserve the central and exclusive focus of attention that the Standard Picture gives it. This point is even stronger than it might at first appear because, as noted above, there are typically multiple different types of linguistic and mental content associated with each authoritative legal text. In the case of a statute, for example, there is the semantic content of the text, what the legislature intended to communicate, what the legislature asserted, what the legislature presupposed and implicated, what the legislature would reasonably be taken to have intended to communicate, what legal effect the legislature intended to achieve, and so on. 38 Proponents of the Standard Picture typically assume that, without appeal to moral considerations, one type of content can be identified as the onethat constitutes the content of the law. 39 But it is unclear why we should be exclusively concerned with one such content. On the Moral Impact Theory, all of the linguistic and mental contents associated with the legal texts are among the factors that are potentially relevant to our obligations. They—and other morally relevant factors—are given whatever relevance they in fact deserve.

II. the theory

In this Part, I develop the Moral Impact Theory in three stages. Section A makes a few preliminary clarifications and refinements. Section B explains, via several examples, how legal institutions can change our moral obligations, thereby creating legal obligations. Finally, Section C clarifies how the theory distinguishes legal obligations from other moral obligations.

We can begin with a rough and incomplete formulation of the theory:

The Moral Impact Theory (version 1): The legal obligations are those moral obligations created by the actions of legal institutions.

On my view, legal institutions take various kinds of actions, such as voting on bills and deciding cases, that change our moral obligations. The resulting moral obligations are our legal obligations.

A. Preliminary Clarifications and Refinements

1. what do i mean by moral obligations.

My usage of the term moral is relatively standard, but, because the term is used in various ways, I offer brief clarification. The relevant obligations—the ones that, according to my theory, are legal obligations—are simply genuine, all-things-considered, practical obligations.

Let me take the italicized terms in reverse order. First, the relevant obligations are practical ones—i.e., obligations that concern what one should do , as opposed to what one should think or feel. 40 Thus, for example, we are not concerned with epistemic obligations, which concern the formation and revision of beliefs. (The law of evidence does not concern what the finder of fact should believe, but rather concerns such questions as what evidence may be presented to the finder of fact and what evidence the finder of fact may consider.)

Second, the relevant obligations are all-things-considered obligations, as opposed to merely pro tanto ones. If one makes a promise to pick up a friend at the airport, and one’s mother becomes severely ill, then taking all of the relevant considerations into account, one should not pick up the friend at the airport. The obligation may still exist, and consequently one might be morally required to apologize or to make up for its breach. In a terminology that has become standard, we can say that the obligation to pick up the friend is, in light of the mother’s illness, merely a pro tanto obligation. By contrast, an all-things-considered obligation is one that, taking all relevant considerations into account, one should fulfill. 41

Third, the point of saying that the relevant obligations are genuine is not that there are two types of obligations, genuine ones and non-genuine ones. Rather, the point is to distinguish my usage from what we might call the sociological sense of the term “obligation” (and of other normative terms such as “reason,” “right,” and so on). To say that a group has an obligation to perform some action in the sociological sense is to say, roughly, that members of the group believe that they have such an obligation (and perhaps have other relevant attitudes and tendencies, such as disapproval of people who do not perform the action in question). An anthropologist might say, for example, that for a particular group it is obligatory (in the sociological sense) to follow particular dietary laws. 42 The fact that members of a group believe that something is obligatory obviously does not imply that they have any genuine obligation. For instance, the fact that a cult believes that it is obligatory to sacrifice one’s firstborn child does not imply that this action is obligatory. On my theory, what matters is not whether people believe that they have certain obligations, but whether they actually do. 43

In my view, genuine, all-things-considered, practical obligations are all-things-considered moral obligations. 44 I therefore will often refer to such obligations as moral obligations . (For brevity, I generally omit the qualification all-things-considered .)

2. The Moral Profile

As a shorthand, I have been writing of obligations. But the content of the law includes more than just obligations. For example, it includes powers, privileges, and perhaps permissions. When I write about the way in which legal institutions change our moral obligations, I mean to include the way in which they change our moral obligations, powers, privileges, and so on. I have coined the term moral profile to cover all of these, but, for convenience, I sometimes write “moral obligations” or just “obligations.” 45 With this clarification, the theory can be reformulated more precisely:

The Moral Impact Theory (version 2): The content of law is that part of the moral profile created by the actions of legal institutions.

3. Legal Texts Versus Legal Standards

It will be important to distinguish different uses of the term law . As a mass noun, law can refer to the content of law or to the legal system. As a count noun, a law can refer either to an authoritative legal text (such as a statute or ordinance or a provision thereof) or to a legal standard, requirement, rule, or principle. It is this latter distinction that I want to emphasize here. 46 An authoritative legal text is a linguistic entity. By contrast, a legal standard is a norm. Texts and norms are fundamentally different kinds of things. A text may express a norm, just as a numeral may express a number or a sentence may express a thought. But a text is no more a norm than the Roman numeral “IV” is the number four or than the sentence “ c’est la vie ” is the thought that that’s life. (If the distinction is not immediately evident, consider the moral case. No one would confuse the moral norm against causing unnecessary suffering with a sentence or text.) Moreover, it is a substantive claim that the issuance of an authoritative text makes it the case that a legal norm corresponding to the linguistic content of the text obtains. 47 Indeed, it is the central thesis of the Standard Picture.

Despite the obviousness of the distinction, legal practitioners and scholars habitually use terms such as statute and provision interchangeably with terms such as rule and standard . The prevalence of the Standard Picture explains these habits. On the Standard Picture, although texts are not norms, there will be a relatively straightforward correspondence between texts and norms. 48

The Moral Impact Theory is an account of how actions of legal institutions, including importantly the issuance of authoritative texts, make it the case that legal norms obtain. And, according to the Moral Impact Theory, the relation between texts and norms will be more complex than the Standard Picture would have it. 49 Although using terms for legal texts and legal norms interchangeably is harmless in many contexts, in the present context it will be important to distinguish carefully between statutes and norms. To avoid confusion, I will be careful to use statute , provision , and the like exclusively for texts, and to use standard , norm , and the like exclusively for norms. And I will not use law as a count noun without explicit clarification.

B. How Legal Institutions Change the Moral Profile

How can legal institutions like legislatures and courts change our moral obligations? On the Standard Picture, legal institutions issue authoritative legal pronouncements—statutes, judicial decisions, and the like—the linguistic content of which becomes the content of the law simply in virtue of the fact that it was authoritatively pronounced. We can express this idea by saying that, on the Standard Picture, authoritative legal pronouncements change our legal obligations directly . 50 This change in legal obligations may, depending on the circumstances, affect moral obligations. Thus, on the Standard Picture, the standard way for legal institutions to change our moral obligations is by directly changing our legal obligations (by issuing authoritative legal pronouncements).

On the Moral Impact Theory, by contrast, the idea is not that legal institutions change the moral profile by changing the content of the law. Any such suggestion would be viciously circular given that, according to my theory, the changes in the content of the law brought about by the legal institutions are to be explained by the changes in the moral profile brought about by the legal institutions. Instead, the idea is that legal institutions change our moral obligations by changing the relevant circumstances (and not by doing so via changes in the content of the law). There are many different tools that legal institutions can use to bring about such changes in the moral profile.

I can best explain with examples. I use them to illustrate ways in which legal institutions can change our moral obligations by changing the relevant circumstances, thus creating legal obligations. The crucial point is that the examples do not involve changing the moral profile by changing the content of the law, but, rather, changing the content of the law by changing the moral profile. I will come back to this point about the direction of explanation below. 51

First, the establishment of a legal system and the actions of legal institutions in maintaining security and punishing wrongdoers can make it morally impermissible to use violence. Without a legal system, it may be morally permissible for people to use violence against others who attack or threaten to attack them or their families or allies. Indeed, it may be morally permissible for people to use violence against others who are endangering their well-being in other ways, for example by taking food or water on which they rely. By maintaining a monopoly on the use of force, effectively protecting people against violence, and reliably punishing wrongdoers, a legal system can make violence morally impermissible, except in a very narrow range of circumstances. Notice that, in this example, actions of legal institutions other than the issuance of texts play an important role in improving the moral situation.

Second, given the great moral importance of advance notice of punishment and the indeterminacy—or at least uncertainty—with respect to what punishment is morally appropriate, the punishment of wrongdoers is in general morally problematic without action by legal institutions. 52 A legal system plausibly can make punishment morally permissible by giving notice of which morally wrong acts are punishable and what the corresponding punishments will be.

Third, in the punishment example, the actions of legal institutions are able to make determinate and knowable aspects of morality that are otherwise either relatively indeterminate or uncertain. There are many other cases of this and related phenomena. For example, it is clear that agents who break at least some promises have resulting obligations to the promisee, but there is a great deal of uncertainty about what sorts of remedial actions are appropriate with respect to different promises, and it is plausible that there are frequently a variety of different ways in which the remedial obligations can be met. 53 Once the legal system provides certain contract remedies, however, people who make promises act against that background, and this can render determinate and certain or otherwise change what is morally required in the event of breach. The case of accidental breach is a nice example. Ex ante, it is unclear and perhaps indeterminate what remedy is morally required if one breaches a promise accidentally. The actions of legal institutions make the remedy for accidental breach of a legally binding promise clear and determinate. 54

Fourth, consider the familiar example of a coordination problem. 55 It is sometimes important that all or nearly all people act in the same way, though there are several equally good ways in which everyone could act. It is important, for example, that everyone use electrical outlets that meet the same specifications, though there are many different specifications that would work equally well. Suppose a legislature directs everyone to adopt a particular solution. In the simplest kind of case, this action by the legislature may well have the effect of making the specified solution more salient than the others. As a result, given the moral reasons for following the solution that most other people are likely to follow, everyone may now have a moral obligation to adopt the specified solution.

Matters may be more complicated, however. Because of a wide variety of factors—established practices in the relevant industry, early misunderstandings of the legislation by a particularly influential company or by government inspectors, basic features of human psychology, new technological developments not predictable when the legislature acted, and so on–the result of the legislature’s action may be that a solution that is somewhat different from the one specified by the legislature becomes the most salient one. That solution may therefore come to be morally obligatory, despite the fact that it does not correspond to the linguistic content of the statute.

In both kinds of cases, the legislature has changed the moral profile, creating a new moral obligation. On my account, this new moral obligation counts as a legal obligation because of the way in which it came about.

Fifth, to the extent that people have the ability to participate equally in governance, legal institutions can harness democratic considerations to alter the moral landscape. Promises and agreements are a useful analogy. By making promises and entering into agreements, people change their moral obligations. The fact of agreement has moral force. Even if what was agreed on is an arrangement that is seriously morally flawed—a different arrangement would have been much fairer, for example—the fact that the arrangement was agreed on may be sufficient to create a moral obligation.

Similarly, the fact that a decision is reached by a procedure that is part of a system of governance in which everyone has an equal opportunity to participate has moral force. I don’t mean to suggest that people are morally bound by any decision of a legal institution in a democratically constituted government. But to the extent that self-government results in an arrangement, there are moral reasons for people to abide by the arrangement. I will generally refer to such moral reasons as “democratic considerations,” “reasons of democracy,” or the like.

It is a complex matter what democratic considerations support. It certainly cannot be assumed that democratic considerations always translate into some simple formula, such as whatever a popularly elected legislature intended. 56 For example, there are familiar ways in which legislatures fail to be accountable to the public. 57

According to the Moral Impact Theory, the relevance of democratic considerations does not derive from the history and traditions of our legal system. It is not, for example, that we are seeking principles that fit and justify our practices, and, because those practices happen to be democratic, the relevant principles turn out to be democratic. Rather, it is a general moral truth that, to the extent that people have equal opportunity to participate in procedures of governance, they acquire moral reasons to comply with the decisions that are reached through those procedures. Democratic considerations therefore are relevant in all legal systems, not just those with democratic traditions. Of course, to the extent that a legal system is part of a system of government that does not allow people to participate, it will not be effective at harnessing democratic considerations.

It is worth noting that, as with agreements, democratic considerations can provide moral support for seriously morally flawed arrangements. The fact that the democratic process has settled on a particular scheme provides reasons for compliance with that scheme, even if the scheme is far from the best scheme that could have been chosen.

I want to emphasize that, in appealing to democratic considerations, I do not mean to suggest that there is a general moral obligation to comply with directives of popularly elected representatives in the circumstances of contemporary nations. There is a widespread consensus that there is no such general moral obligation, and I think that the consensus is correct. 58 Indeed, I have elsewhere argued that one of the attractions of my account of law is that it explains how legal systems can generate morally binding obligations despite the fact that there is no general moral obligation to obey directives from legal authorities. 59 Although there is no such general moral obligation, democratic considerations can reinforce other factors of the sort that my examples illustrate, yielding moral obligations in particular cases. For example, in the case of a coordination problem, the fact that the solution was democratically chosen may add democratic considerations to the other considerations, such as salience, supporting the solution. In general, in real cases, the different kinds of considerations illustrated by the examples often reinforce each other.

Sixth, legal institutions can create moral obligations to participate in specific schemes for the public good, such as paying taxes. Without a legal system, people will have general moral obligations to help others. But there will often be no moral obligation to give any particular amount of money to any particular scheme. For one thing, especially when it comes to problems of any complexity, many different possible schemes are likely to be beneficial, and the efforts of many people are needed for a scheme to make a difference. Nothing determines which possible scheme is the one that people should participate in. In addition, there is no mechanism for people to participate in one common scheme. By specifying a particular scheme and making it salient, creating the mechanism for everyone to participate in that scheme, and ensuring that others will not free-ride, legal institutions can channel the pre-existing, relatively open-ended, moral obligations into a moral obligation to pay a specified amount of money into that scheme. 60

Again, the moral obligation that legal institutional action brings about may be to participate in a scheme that is seriously morally flawed. Suppose that it is very important to have some mechanism in place for solving a particular problem, for example, preventing violence or ensuring clean drinking water. Then, if a particular solution has the best chance of being implemented, it may be morally required to do one’s part in that scheme even if it is significantly worse than—for example, more unjust than—the ex ante best solution to the problem. The fact that legal institutions are implementing a particular scheme can make it the case that that scheme has the best chance of being adopted and therefore that it is morally obligatory. Similarly, once a particular morally flawed rule has been widely adopted and relied on, it may be unfair not to follow it. What legal institutions actually do , not merely the linguistic content of their pronouncements, can therefore play an important role. And, as in the case of a coordination problem, the scheme that becomes morally obligatory as a result of legal institutional action may not be one that corresponds to the linguistic content of any pronouncement.

In certain kinds of situations, however, the linguistic content of directives will be morally binding. Court orders directed at specific individuals are a good example. Because of the overwhelming moral importance of having a way of ending disputes peacefully, there are powerful moral reasons to give binding force to such specific orders. 61

I should emphasize that I am not suggesting that making a particular scheme salient, creating a mechanism for participation, and preventing free-riding are necessarily sufficient to create the relevant moral obligation. It will depend on all the circumstances. A corresponding caveat applies more generally across the examples.

Seventh, the point about the legal system’s ability to ensure participation is of great general importance. In many situations, one person’s taking action toward some community benefit will be worthless, or nearly so, without the actions of many others. In such cases, if there is no reasonable expectation that others will cooperate, there is likely no moral requirement that a particular person should participate. By using the threat of coercion, legal institutions can ensure the participation of others, thus removing this obstacle to a moral obligation to participate.

Eighth, and finally, the adjudication of cases is another way in which legal actors can change the moral profile. The considerations relevant to the impact of a judicial decision on the moral profile are complex. I will briefly explicate these considerations by sketching how the actual practice of interpreting appellate case law can be explained as the result of the interaction between them. 62

To begin with, note that on the Standard Picture, working out an appellate decision’s contribution to the law should be a matter of identifying an authoritative text—which might be only some portion of the judicial opinion—and then extracting its linguistic content. Indeed, at least once the relevant text is identified, interpreting appellate decisions should be no different from interpreting statutes.

Our actual practice is very different. The standards that appellate courts announce and the reasoning that they offer are given substantial attention, but they are far from the end of the story. In deciding how to resolve a new case in light of a past decision (or decisions), a past decision can be distinguished by pointing out that the present case has relevantly different facts, even if the present case falls within the standard apparently announced by the court in the past case. Moreover, the standards announced in the past case can be treated as nonbinding dicta on the ground that they go beyond what was necessary for resolution of the case.

According to the Moral Impact Theory, considerations of fairness support treating like cases alike, so the fact that a case is resolved in a particular way provides a reason for treating relevantly similar cases in the same way in the future. To the extent that we must treat like cases alike, the resolution of cases will generate standards that affect the proper resolution of future cases. On the other hand, at least for many kinds of issues, democratic considerations favor the creation of standards by representative bodies such as legislatures. Thus, there is an apparent tension between these two kinds of considerations.

But treating like cases alike does not warrant privileging the way in which the court explains its decision or the standards that it announces. What matters with respect to treating like cases alike is whether future cases are in fact relevantly similar to the past case, and that is a moral question, not a question of what the court in the past case said. Therefore, treating past decisions as governing only relevantly similar cases—through the practices of distinguishing past decisions and treating the announcement of rules as dicta—can be seen as a way of reconciling the value of treating like cases alike with democratic considerations that militate against courts’ creating general standards.

The situation is more complicated, however. Depending on the legal system’s practices with respect to precedent, the court’s reasoning and any standard that it announces may create expectations and, for that reason, engage fairness considerations. Moreover, even though a court does not represent the interests of constituents in the way that a legislature does, democratic values having to do with public deliberation give weight to a court’s public offering of reasons in support of a standard. Thus, these other aspects of fairness and democracy explain the careful attention given to past courts’ explanations of their decisions.

This concludes my discussion of ways in which legal institutions can change the moral profile. I emphasize two points about the examples. First, even when, as is typical, the relevant action includes the issuance of some kind of text, the content of the law is not determined simply by the meaning of the text. Rather, the content of the law depends on the moral significance of the fact that the legal institution took the action in question (including the issuance of the text). Judicial decisions illustrate this point well.

Second, in the examples, various kinds of action by government officials, not just pronouncements, alter the moral profile. The examples involve, among other things, the actions of legal officials in setting up actual mechanisms for collecting taxes, protecting people from violence, and taking or threatening enforcement action against shirkers to enforce people’s participation in collective schemes.

As noted, my examples involve actions by legal officials. But how does the legal system instigate appropriate action by officials? If the legal system gets legal officials to act by instructing them to do so, and if such instructions generate legal obligations to act as instructed, then does my account tacitly assume at least some part of the Standard Picture’s understanding of how legal obligations are generated?

This objection is off target. A preliminary point is that officials often do not need to be specifically instructed how to act. Legislators propose legislation, vote on bills, and so on without legal instructions specifying what legislators are to do. Similarly, courts and executive officials take a wide range of actions without specific instructions.

More importantly, although authoritative pronouncements, such as statutes, regulations, and executive orders, are an important part of the way in which a legal system gets officials to act, this use of authoritative pronouncements is not in tension with my theory. As noted above, for familiar reasons, ordinary citizens in contemporary nations, even democratic ones, do not have a general moral obligation to do what the legislature or other legal institutions command. 63 Government officials are an important exception, however. The moral obligation of officials is generally overdetermined. They have explicitly consented to the government, have voluntarily assumed an obligation to carry out the instructions of their superiors, and have accepted benefits that they could easily have declined. Therefore, unlike the situation with respect to ordinary citizens, the legal system can typically generate moral obligations of government officials simply by specifying what they are required to do. And those moral obligations, on my account, are legal obligations.

Even in such circumstances, however, the Moral Impact Theory affords authoritative pronouncements a role that is crucially different from the one envisioned by the Standard Picture. According to the Standard Picture, legal obligations come about simply because the relevant content is authoritatively pronounced. By contrast, on the Moral Impact Theory, when circumstances obtain in which authoritative pronouncements are capable of generating corresponding moral obligations, the pronouncements change the content of the law via a change in the moral profile. For example, an executive order directing legal officials to act generates a moral obligation for those officials to act accordingly. This moral obligation comes about not simply because the order was authoritatively issued, but also because of the morally relevant background circumstances—for example, that the officials have voluntarily assumed an obligation to obey, have accepted benefits, and so on. The consequent moral obligation is a legal obligation, so the explanation of the legal obligation goes through the relevant moral considerations.

More generally, there are special circumstances in which commands do generate moral obligations to do what is commanded. That the person commanded is an official of the legal system is simply one such special circumstance. When the relevant circumstances obtain, authoritative pronouncements provide a shortcut for a legal system. The legal system can use such pronouncements to generate moral obligations—and these moral obligations, according to the Moral Impact Theory, are themselves legal obligations. In sum, legal systems can use diverse tools to generate moral obligations. Those tools include, under appropriate circumstances, authoritative pronouncements. 64

I hope that the examples have clarified the point that I highlighted earlier about the direction of explanation. It is not that a legislature or court pronounces a norm, which thereby becomes a valid legal norm, and, because of moral reasons for obeying the law, ultimately gives rise to a genuine (moral) obligation. The order of explanation between the legal obligations and the moral obligations is reversed in my account: the legislature votes or the court decides a case, thus possibly creating genuine obligations through the kinds of mechanisms I have been illustrating. Those genuine obligations then are legal obligations.

The examples also are suggestive of what law and legal systems, by their nature, are supposed to do or are for . 65 In many of the examples, it would be better if people’s obligations were different from what they in fact are, and the actions of legal institutions have the potential to improve matters by changing the relevant circumstances, thus changing moral obligations. As mentioned in the Introduction, my view (which I do not argue for in this Essay) is that it is part of the nature of law that a legal system is supposed to improve our moral situation in the kind of way that I have described—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.

C. 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 kinds 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 pre-existing 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 institution) from other systems are a matter of degree. 78 Unsurprisingly, there will be borderline cases.

III. the moral impact theory and legal interpretation

The outline of the theory is now complete. In this Part, I examine the implications of the Moral Impact Theory for legal interpretation. 79 In Section A, I return to the example drawn from Smith to illustrate in greater detail the implications of the idea that legal interpretation involves working out the moral consequence of the relevant facts. In Section B, I look at the way in which the Moral Impact Theory explains the relevance to legal interpretation of factors other than actions of legal institutions, such as canons of construction. Finally, in Section C, I clarify and qualify the idea that legal interpretation may require developing an ambitious moral theory.

A. A Statutory Interpretation Example

Recall that, in Smith , the defendant offered to trade a gun for cocaine. 80 He was convicted of drug trafficking crimes and sentenced under 18 U.S.C. § 924(c)(1), which provides for the imposition of augmented penalties if the defendant “during and in relation to any crime of violence or drug trafficking crime . . . uses . . . a firearm.” The Supreme Court, over a vigorous dissent, held that trading a gun satisfied the statutory requirement and therefore affirmed Smith’s conviction.

The Court’s majority and dissenting opinions both regard the question as whether the statutory language—“uses . . . a firearm”—has the effect of making the specified penalty applicable to one who trades a firearm for drugs. The opinions appeal to diverse considerations in support of their opposing positions: the “ordinary meaning” of the word “use”; 81 dictionary definitions of the word; 82 what people ordinarily mean by words or phrases in particular contexts or how words ordinarily are used; 83 how Congress intended the language to be construed; 84 how the statutory phrase is most reasonably read; 85 whether Congress would have wished its language to cover the situation; 86 whether Congress intended the type of transaction to receive augmented punishment; 87 the purpose of the statute; 88 how the word “used” is employed in the United States Sentencing Guidelines; 89 case law; 90 other provisions in the same statutory scheme; 91 the history of the statute’s modification over time; 92 and the rule of lenity. 93

For all these claims about relevant considerations, the majority and dissenting opinions strikingly lack both an account of why the relied-upon considerations are relevant 94 and an account of how much weight each deserves—or, more generally, of how to adjudicate between the considerations when they point in different directions. These two points are closely related: without an understanding of why considerations are relevant in the first place, it is difficult to know how to reconcile conflicts between them. 95

Recently, two philosophers of language, Stephen Neale and Scott Soames, have (separately) pointed out that the Court’s opinions in Smith are marred by mistakes about language and communication. 96 Most significantly, the Justices seem unaware of the important distinction between the semantic content of a sentence (roughly, what is conventionally encoded in the words) and what a person means or intends to communicate on a particular occasion by uttering the sentence (and might be easily understood by ordinary hearers to so intend). 97 I will use the term communicative content for this latter notion. Soames and Neale share a central point: although the meaning of the word “use” certainly includes trading, Congress, by employing the sentence in question, may well have intended to communicate that the specified penalties cover only the use of a gun as a weapon . 98 Both assume without argument that the law is determined by the communicative content of the statute, not its semantic content. 99

Thus, despite all their sophistication about language, both philosophers are ultimately in the same position as the Court. They point to a plausibly relevant determinant of the content of the law—communicative content—that they favor, but they offer no framework for explaining why it is relevant or why it should trump other putative determinants.

As I now explain, the account of legal interpretation that derives from the Moral Impact Theory supplies what is missing. 100 First, it offers an account of the possible relevance of the diverse candidate factors mentioned by the Court’s opinions, as well as the one favored by the philosophers of language. Second, this account of why factors are relevant yields an account of how potential conflicts between sources are to be resolved.

On the Moral Impact Theory, a statute’s contribution to the content of the law is, roughly, the impact of the fact of the statute’s enactment on the moral profile. In interpreting a statute, therefore, a fact is relevant because it has a bearing on the statute’s impact on the moral profile. A fact might, for example, be relevant because it is a morally relevant aspect of the enactment of the statute (or evidence of such a morally relevant aspect) or because it is a background fact that affects the enactment’s impact on the moral profile. In other words, moral considerations explain why various factors are relevant.

Considerations of democracy and fairness provide explanations of why the various factors mentioned by the Court in Smith are (or would plausibly be thought to be) relevant. For example, the relevance of how Congress intended the language to be construed, whether Congress would have wished its language to cover the situation, how the statutory phrase is most reasonably read, what Congress intended to communicate, and the purpose of the statute are all plausibly explained by democratic considerations. What about dictionary definitions and ordinary usage? Dictionary definitions and ordinary usage are plausibly evidence of how the statutory phrase is most reasonably read or what the legislature would have reasonably been understood to be intending to communicate. And considerations of both democracy and fairness arguably make those factors relevant. Similarly, fairness helps to explain the basis of the rule of lenity and the relevance of decisions of past cases (because of the importance of treating like cases alike). 101

It is worth noting how natural it is to appeal to democracy, fairness, rule of law, and other moral values to provide such explanations. 102 For example, textualists often appeal to democratic values to support the view that the intentions of legislators or framers, to the extent that they are not expressed in the text, are not relevant to statutory or constitutional interpretation. 103 And, similarly, intentionalists argue that democracy supports their view that what matters is the legislators’ intentions. 104

The Moral Impact Theory offers not just an account of why various factors are relevant, but, more importantly, an account of how conflicts between relevant factors are to be resolved. On the Moral Impact Theory, the contribution of a statute to the content of the law will depend on the on-balance best resolution of conflicts between moral considerations. Morality provides answers to questions of how conflicts between competing considerations are to be resolved, for example, by determining how much weight competing considerations deserve. In this respect, it differs from a miscellaneous collection of considerations. If one asks what action is supported by, say, considerations of health, efficiency, and aesthetics, then, assuming that there is any conflict between the specified considerations, the question is incomplete because one has not specified how the considerations are to be weighed against each other. The Moral Impact Theory holds not merely that we are to take into account moral considerations, but also that we are to give to each consideration the relevance that morality in fact gives it. (I do not mean to suggest that morality always provides a unique answer to every practical question. There may be much indeterminacy.) Competing democratic considerations may, for example, have different implications for which aspects of the statute are relevant. Or considerations of democracy and considerations of fairness might point in different directions in a particular case. According to the Moral Impact Theory, the correct resolution of such conflicts depends on what the relevant moral values, on balance, support.

Again, we can illustrate with Smith . Here is a useful, if somewhat simplified, way of understanding the fundamental disagreement between the majority and the dissent. The majority believes, roughly speaking, that the interpretation of the statutory provision is determined by its semantic content. The dissent, though it does not understand the distinction between semantic content and communicative content, is groping for the position that the interpretation of the statute is determined by what Congress intended to communicate or perhaps by what one who had uttered the words of the statute would typically have intended. 105 As noted above, these positions, by themselves, offer no way forward. One side insists that the words of the statute, as written, straightforwardly cover using a gun to trade, and the other side argues that Congress probably used the words intending to communicate that using a gun as a weapon subjects a defendant to the specified sentence.

According to the Moral Impact Theory, in order to adjudicate between these positions, we need to develop the understandings of democracy (or other moral considerations) that would support these different positions and then determine which is the better understanding of democracy. One democratic consideration might support the idea that what matters is not the actual intentions of particular legislators, but only what is specifically encoded in the language that is voted on by the legislature. A different aspect of democracy might support giving decisive weight to the legislature’s actual communicative intentions. Because, according to the Moral Impact Theory, the correct resolution of the conflict depends on the best understanding of all the relevant considerations, resolving the conflict requires developing an account of democracy. 106

B. The Relevance to Statutory Interpretation of Factors Other than Actions of Legal Institutions

I have mostly emphasized the way in which the Moral Impact Theory explains the relevance of actions of legal institutions. It is also worth noting that the Moral Impact Theory offers an approach to explaining the relevance of other factors to the content of the law. Various facts and circumstances can be relevant to the content of the law because they affect the way in which actions of legal institutions alter the moral profile. Customs, settled expectations or practices in a particular industry, actions of important non-legal actors, influential misunderstandings of statutes, and new technological developments can have moral implications and therefore can affect what is morally required as a result of a particular statute (or other legal institutional action). Customs, expectations, and the like may affect what fairness requires, which solution to a problem is most likely to be adopted by others, or how the public understands the problem a statute addresses. This kind of account can be used to analyze the relevance of diverse factors to the law. To take one example, on such an account, the relevance of foreign law to constitutional law would be determined by asking what bearing foreign law has on the Constitution’s impact on the moral profile. Obviously, this schematic suggestion does not solve the problem, but it offers a framework for thinking about it.

The Supreme Court’s famous decision in Holy Trinity Church v. United States 107 might be well understood as involving the relevance of background factors to the moral impact of legislation. A church contracted with a man who was not a U.S. citizen to bring him to the United States to serve as rector. The statute at issue stated that it was unlawful to make a contract to bring a foreigner to the United States “to perform labor or service of any kind in the United States.” Although the Court conceded that the contract fell “within the letter” of the statutory provision, 108 it decided that the contract was not in fact prohibited.

The Court put great weight on the ground that “no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people.” 109 The Court characterized this factor as evidence of Congress’s intentions. 110 On the Moral Impact Theory, Congress’s intentions might be relevant for democratic reasons. But in fact the religious values to which the Court appeals would be poor evidence of Congress’s actual intentions, and, moreover, there are important democratic reasons why congressional intentions that are not made publicly available should not affect our obligations.

The Moral Impact Theory could explain, instead, that the Court took the importance of religious values to affect the impact of the statute on the moral profile. Roughly, the idea would be that the Court took there to be important moral reasons why religious organizations should not be restricted in the activity, central to their mission, of hiring clergy. These reasons prevented the statute from affecting the moral profile in the way that it otherwise would have. This understanding is of course consistent with the fact that a different, more specific statute could override those reasons.

A less dated example might make the point more clearly. Consider the canons of statutory construction that ambiguities are to be resolved in favor of Native Americans and veterans. 111 According to the Moral Impact Theory, these canons are ways of taking into account the United States’s moral debts to Native Americans and veterans, respectively. 112 Any statute acts against the background of moral reasons flowing from those debts. Those reasons may be sufficient to nudge the impact of a statute on the moral profile. (Understanding the canons in question as taking into account pre-existing moral reasons might seem obvious. But most theories of law—notably, theories that presuppose the Standard Picture—either have difficulty explaining how pre-existing moral reasons could have such relevance to the content of the law or have to regard the canons as instructing courts how to make law, rather than how to work out a statute's contribution to the content of the law.)

Other canons and interpretive doctrines can be understood in similar ways. The rule of lenity and the doctrine of avoiding absurd results are obvious examples. The Moral Impact Theory also understands linguistic or textual canons as rules of thumb for working out the moral consequences of statutes. For example, considerations of democracy and fairness militate in favor of a statute’s contribution being publicly accessible. Many of the linguistic canons can be understood as implementing these moral considerations by tending to push a statute’s contribution toward the way in which people would ordinarily understand the statute. Examples include: expresio unius est exclusio alterius ; ejusdem generis ; and noscitur a sociis .

I should add that I do not mean to endorse the Court’s decision in Holy Trinity or particular canons of construction. My point is just to explicate the resources of the Moral Impact Theory for understanding the relevance of diverse factors to the content of the law.

C. Clarification of the Need for an Ambitious Moral Theory

I want to close this Part by clarifying and qualifying the idea that legal interpretation may require working out an account of what the relevant moral values, on balance, support. First, obviously, the Moral Impact Theory does not convert statutory interpretation into an algorithm—a mechanical procedure. 113 Working out the best account of the relevant moral considerations can be a complex task requiring difficult judgments. What the Moral Impact Theory does provide is an understanding of what makes it the case that the statute is to be interpreted in a particular way, given that different factors point in different directions. Specifically, the correct interpretation is correct because it specifies the impact of the statute on the moral profile. Thus, the Moral Impact Theory clarifies what the questions are, so that we are not reduced to listing factors that point in different directions. According to the Moral Impact Theory, the master question is what is morally required in light of the enactment of the statute, not what the statute’s linguistic content is. With respect to any specific factor that might be thought relevant, the question is what relevance moral considerations give to that factor, as opposed to other factors.

Second, if it is conceded that, say, a particular democratic consideration can help to explain whether a particular aspect of a statute is relevant, there is a powerful argument that what ultimately matters is what all the relevant values, on balance, require. To begin with, it is very difficult to see how it could be that a democratic consideration is relevant to a statutory interpretation question, but that in order to resolve that question, we don’t need an account of what democratic values, on the best understanding, require. If it matters that a particular aspect of democracy favors one interpretation of a statute, how could it not matter that, on balance, democratic values favor a different interpretation? Similarly, if democratic values support a particular approach to interpreting statutes, how could it not be relevant that once we take into account fairness as well as democracy, a different approach is favored? In short, if moral considerations are relevant, then, to the extent that they conflict, it is difficult to see what could justify a stopping place short of what moral values, on balance, support. 114 This argument suggests that, if one denies the need for an account of what morality requires with respect to statutory interpretation, one must deny that, for instance, democratic considerations have any bearing on the proper approach to statutory interpretation.

Third, although the previous point suggests that an ambitious moral account might sometimes be needed because the relevant moral considerations conflict, I don’t mean to suggest that whenever we have to work out what the law is, we have to work out a complete account of all the relevant moral considerations. In the run of cases, all of the plausible accounts of democracy, fairness, and so on favor the same outcome. Therefore, in order to resolve such cases, it is not necessary to turn to the underlying moral considerations. That is why most cases are easy cases. Even in difficult cases, it is only necessary to eliminate candidate accounts to the extent that they favor a different outcome in the case at hand.

Fourth, judges and other agents faced with an actual legal case operate under a range of practical and ethical constraints apart from what the content of the law dictates. For example, as in many areas of cognitive endeavor, because of shortages of time, memory, and so on, a second-best solution might yield better results. That is, judges with limited time and capacities might well do better to follow relatively simple heuristics, rather than trying to work out explicitly the impact on the moral profile of all of the relevant actions. I want to set aside the important topic of how, all things considered, judges should decide cases. (Because of the kinds of constraints just mentioned, I take it that the content of the law is a very important, though by no means the only, determinant of how judges should decide cases.) The Moral Impact Theory is, rather, a theory of what determines the content of the law. I am using the examples of Smith and Holy Trinity Church to explicate the theory’s implications for statutory interpretation, i.e., working out a statute’s contribution to the content of the law, rather than its more indirect implications for how judges should ultimately decide cases.

Fifth, it is a mistake to assume that one must produce a rigorous theoretical solution to a problem in order reliably to generate accurate answers. For example, what to believe—how to form and update one’s beliefs about the world—is widely believed to be a massively holistic problem. When deciding what to believe on a particular issue, there is in general no way in advance to rule out the possible relevance of anything that you know. But you would be stopped in your tracks if, on every issue that arises, you had to take into account everything that you already know before deciding what to believe. How to hive off a manageable set of relevant considerations is a deep problem in philosophy of mind and cognitive science. 115 Yet, in practice, humans are remarkably good at forming and updating their beliefs about the world quickly and reliably, without considering everything they know. The point is that people can be skilled in practice at producing answers to a problem, despite the fact that producing a full, rigorous derivation of the answers would be unmanageably difficult. (Moreover, we can be skilled at producing answers without knowing how we do it.) It is therefore a mistake to assume that, because the Moral Impact Theory holds that the content of the law depends on what the moral considerations, on balance, support, the Moral Impact Theory makes impossibly difficult the everyday task of working out what the law is. The skills of reading statutes and cases that lawyers learn in law school may be generally reliable ways of working out the impact of statutes and judicial decisions on the moral profile, typically without the need to consider moral considerations explicitly.

Finally, I do not mean to claim that there will always be a single best resolution of every conflict between relevant factors. The Moral Impact Theory has the consequence that, if there are competing candidates for a statute’s contribution and the relevant considerations do not favor one candidate over the others, then the law is indeterminate between the competing candidates.

IV. objections

In this Part, I address two possible objections, one concerning the possibility of morally arbitrary and morally bad legal norms and one concerning the law’s ability to settle disagreement.

A. Arbitrary and Evil Legal Norms

First, it might be thought that because my view holds that legal obligations are certain moral obligations, it cannot account for morally arbitrary and morally bad legal rules.

The worry about morally arbitrary legal rules is easy to address. The key point is that we need to distinguish between what morality requires ex ante—before the legal institutions act—and what it requires ex post—after the relevant actions of the legal institutions. Of course, it is not morally required ex ante to file one’s tax return by April 15 as opposed to April 1 or any other day. But it may well be morally required to do so once a particular scheme with its particular arbitrary choices has been implemented, others are participating in it, and so forth.

With respect to morally bad legal norms, the same kinds of considerations are part of the answer. As emphasized above, as a result of legal institutional action, it can become morally obligatory to participate in a scheme that is seriously morally flawed or to follow a morally flawed rule. Although these sorts of considerations can explain much morally flawed law, they cannot explain truly evil legal norms. Because my theory holds that the law is a certain part of the moral profile, my theory has the consequence that the law can never include truly evil norms. Such norms can never be part of the moral profile.

Some readers will think that this consequence of my theory is a mark in the theory’s favor. But others will think that this consequence is a mark against the theory because they think it is obvious that there are truly evil legal norms.

For those in this latter camp, I want to make two points. First, recall the distinction between the two senses of “a law.” 116 I emphasize that my theory does not deny that there are evil laws, where “laws” is used in the sense of statutes or other authoritative legal texts . It should be uncontroversial that there are bad statutes, ordinances, regulations, and so on. The issue is the much more theoretical one of what impact on the content of the law such statutes have—in particular, whether such statutes give rise to evil legal norms. So the Moral Impact Theory accepts that there is a clear sense in which there are evil laws. 117

Second, I want to make a fairly banal methodological point. Ultimately, the way to determine whether there can be truly evil legal norms is not to consult English usage or even lawyers’ intuitions. True theories often have counterintuitive consequences—a great deal of what we now think about the world and about human beings would once have been thought to be absurd. We have to evaluate how successful theories are on a wide range of criteria, and once we have decided in this holistic way which theory is most successful, we then have to accept whatever counterintuitive consequences that theory has (at least until a better theory comes along). 118

B. Moral Disagreement

Another possible objection is that the role that the Moral Impact Theory gives to moral reasoning is incompatible with a fundamental function of law—that of settling disagreements and eliminating uncertainty. Human beings disagree frequently about practical matters, about what is to be done. Law is supposed to provide a mechanism for settling these disagreements. 119 If the Standard Picture were correct, the objection goes, then we would be able to see how law could serve this settlement function. But, the objection continues, working out the moral profile will typically be highly controversial. Therefore, if figuring out what the law is involved working out the moral profile, then law would not serve its settlement function.

First, it is controversial what the functions of law are, or even whether law has functions, but let us grant for purposes of argument that settling disagreements is an important function of law. It is at least as plausible, however, that law also has other important functions, such as those of ensuring that government coercion is used only in accordance with past political decisions, 120 acting for the public good, and improving our moral situation. 121 Thus, in order to evaluate how well the law would do at fulfilling its plausible functions (if a particular theory of law were true), we need to consider more than just the settlement function. For example, very roughly, if the Moral Impact Theory, as opposed to the Standard Picture, is true, then the law will do better at generating norms that are supported by moral considerations and less well at yielding certainty. I have argued elsewhere that, in other respects, the Moral Impact Theory suggests that the law is defective less often than the Standard Picture suggests. For example, if the Moral Impact Theory is true, then we will not find that the law regularly requires people to do morally impermissible things, such as to punish people who do not deserve it. 122

At any rate, how well law would perform various of its functions if a particular theory of law were true has only a highly indirect bearing on whether that theory of law is true. The law is surely less than perfect at fulfilling some of its functions. In particular, we know that statutes and appellate decisions often fail to end controversy and even spawn further litigation. That a theory of law predicts that the law would be highly effective at performing the settlement function does not tell us much about whether the theory is true. On the other hand, it would certainly be telling if a theory of law predicted that law would generally be unable to perform one of its functions.

Second, however, it is not true that, on the Moral Impact Theory, the law would not be able to serve the function of resolving moral disagreement. To begin with, a very important part of the way in which a legal system settles disagreement is by having a mechanism for generating specific orders (directed at particular individuals) that are backed up with force. We know from our own legal system that the content of the law is often highly controversial. As just noted, the enactment of a statute does not simply end disagreement. Specific orders directed at individuals are required in order to end disagreement in a peaceful way. As argued above, there are powerful moral reasons to give binding force to such specific orders of a government that has de facto authority. The Moral Impact Theory thus encounters no difficulty accounting for this central way of settling disagreement.

Moreover, it is false that the dependence of law on morality entails that the law cannot help to resolve disagreement and increase certainty about what is to be done. The enactment of a statute or other actions by legal institutions often change the circumstances in ways that make it much easier to determine what is obligatory.

There is a spectrum of different kinds of cases. At one end of the spectrum, there are highly controversial issues such as the permissibility of abortion or whether we should have a flat tax or a progressive tax. Even after the legal system takes action, for example by the legislature’s enacting legislation, controversy is likely to continue. Even in such cases, however, the legislature’s action may well change the circumstances in a way that makes it less controversial what is required ex post. Many who think that a flat tax would be more just than a progressive tax ex ante will recognize that once the legislature has acted, participation in the progressive tax scheme may become morally obligatory. Moreover, as noted above, the fact that action by the legal system often does not end controversy is exactly what we find in our legal system, so the fact that the Moral Impact Theory predicts such continuing controversy is actually a mark in its favor. Again, the way in which the legal system ends controversy when necessary is not to make more law but to direct a particularized order at a specific person.

It is important to recognize, however, that most issues are not like this. At the opposite end of the spectrum from issues on which controversy is unlikely to be settled even after extensive legislation and litigation, there are issues on which action by legal institutions can easily make the relevant part of the moral profile uncontroversial. Before the legislature enacts a statute specifying that cars must drive on the right side of the road, it is difficult to determine which side one should drive on, and there may well be no right answer. Once the legislature makes the right side salient and provides all kinds of mechanisms for enforcement, it is obvious that one should drive on that side.

Between the two ends of the spectrum are cases in which legal institutions can take action that clarifies what is morally required, even if it does not render it utterly uncontroversial. As the examples in Part II illustrated, legal institutions have a range of tools for making it more determinate and certain what morality requires. 123 Consequently, it is often easier to work out how the legal institutions have affected the moral profile than to work out the ex antecontent of morality. Moreover, ordinary citizens can consult experts—also known as lawyers—in working out the impact of the legal institutions on the moral profile. As suggested above, legal interpretation skills, such as those of reading statutes and cases, may be reliable methods of working out the impact of actions of legal institutions on the moral profile—typically without the need to consider moral considerations explicitly. In sum, the Moral Impact Theory is consistent with law’s having the ability to help settle disagreement about what is to be done.

According to the Moral Impact Theory, the content of the law is that part of the moral profile that obtains in virtue of certain actions of legal institutions. In conclusion, it is worth emphasizing how simple and natural the theory is. On the face of it, law-creating institutions try to create binding obligations. The Moral Impact Theory takes this datum seriously, maintaining that legal obligations are the genuine obligations that the legal institutions succeed in creating. As noted in the Introduction, the Moral Impact Theory also makes it easier to understand our abiding concern with law than do the two dominant views of law, the Standard Picture and the Dworkinian view.

I hope that I have also given a feel for the point of legal institutions’ changing the moral profile, thereby creating legal norms. By changing the relevant circumstances, legal institutions can improve the moral situation in a variety of ways—for example by simplifying, clarifying, and making determinate our obligations. Consider again the example of the tax scheme. There is a pre-existing problem, and, consequently, important moral reasons to help to solve it. But those pre-existing moral reasons do not determinately and clearly support one particular solution. The legal system is able to channel the pre-existing moral reasons toward a particular solution. The legal system’s action of publishing a particular scheme, setting up implementing mechanisms, and making others’ participation likely changes the morally relevant circumstances.

My theory contrasts sharply with the Standard Picture, on which legal institutions make pronouncements, thereby automatically generating legal norms that correspond to the contents of the pronouncements. On the Moral Impact Theory, the legislative enactment of a statute may often have roughly the net effect of adding to the content of the law a norm that is more or less captured by the linguistic content of the legislation. But, when it does so, the explanation will be that the enactment of the statute changed the relevant circumstances, thus changing what people are morally required or permitted to do—not that the legal norm obtains simply because it was authoritatively pronounced.

Announcing the Editors of Volume 134

Announcing the first-year editors of volume 133, announcing the seventh annual student essay competition, responses to this essay, how to think about law as morality: a comment on greenberg and hershovitz.

I clarify what I mean by moral obligations infra Subsection II.A.1.

In earlier work on the nature of law, I develop a variety of arguments that support a type of position along the lines of the Moral Impact Theory. This note provides references to that work for interested readers. The earlier work falls into three strands. The most important articles in the first strand are Mark Greenberg, How Facts Make Law , 10 Legal Theory 157 (2004), corrected version reprinted in Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin 225 (Scott Hershovitz ed., 2006) [hereinafter Greenberg, How Facts Make Law ]; Mark Greenberg, On Practices and the Law , 12 Legal Theory 113 (2006); and Mark Greenberg, Hartian Positivism and Normative Facts: How Facts Make Law II , in Exploring Law’s Empire, supra [hereinafter Greenberg, How Facts Make Law II ]. For additional work in this vein, see Mark Greenberg, How Facts Make Law and the Nature of Moral Facts , 40 Direito, Estado e Sociedade 165 (2012); Mark Greenberg, Reasons Without Values? , in 2 Social, Political, & Legal Philosophy 133 (Enrique Villanueva ed., 2007); and Mark Greenberg, Explaining Legal Facts (UCLA Sch. of Law, Working Paper No. 08-19, 2007), http://ssrn.com/abstract=1139135 . These articles focus on the relation between the determinants of law and the content of the law. As they explain, it is fundamental to our ordinary understanding of the law that the determinants must provide reasons for the obtaining of the legal facts (in a sense of “reason” that I explicate). I argue that non-normative facts cannot by themselves determine the content of the law because they cannot explain their own relevance to the content of the law. Normative facts are the best candidates for what can provide the necessary reasons.

The second strand comprises Mark Greenberg, The Standard Picture and Its Discontents , in 1 Oxford Studies in Philosophy of Law 39 (Leslie Green & Brian Leiter eds., 2011) [hereinafter Greenberg, The Standard Picture ], and a work-in-progress, Mark Greenberg, Beyond the Standard Picture (unpublished manuscript) (on file with author). A central idea here, very roughly, is that a legal system is defective to the extent that it produces legal obligations that are not all-things-considered binding. As I argue, this idea points in the direction of a view on which legal obligations are a subset of moral obligations, and legal institutions create and modify legal obligations by modifying the morally relevant facts.

In The Standard Picture and Its Discontents , I sketched the outlines of such a position in general terms. Greenberg, The Standard Picture , supra , at 57-60, 96-102. The version sketched there, which I called the Dependence View , was incomplete because, among other things, it took a position only on what constitutes the content of the law when the legal system operates as it is supposed to. The Moral Impact Theory is a way of developing the Dependence View according to which the content of the law is constituted in the same way when the legal system operates as it is supposed to and when it does not. See id . at 57-58. (There are a variety of other ways of developing the Dependence View; one possibility, for example, is to hold that when the legal system does not operate as it is supposed to, the legal obligations have the content of the moral obligations that would have been created had the legal system operated as it is supposed to.)

The third strand comprises Mark Greenberg, Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication , in Philosophical Foundations of Language in the Law 217 (Andrei Marmor & Scott Soames eds., 2011) [hereinafter Greenberg, Legislation as Communication? ]. In this article, I argue that considerations from the study of language and communication are inadequate to explain the relevance of, and to adjudicate between, different candidates for a statute’s contribution to the content of the law. Moral considerations are a promising candidate to provide what is missing.

508 U.S. 223 (1993). In Section III.A, I use this example to explicate my theory’s account of statutory interpretation in greater detail.

I do not mean to suggest that the account is standardly followed in practice. In fact, I think that the account does not well describe much of the actual practice of statutory interpretation. See Greenberg, The Standard Picture , supra note 2, at 72-81. Rather, I mean that the account is a standard way of describing the practice. On the term linguistic content , see infra notes 18-19 and accompanying text. We will see that some linguistic contents are constituted by the contents of mental states, for example the contents of speakers’ intentions.

For discussion of the opinions in Smith , see infra Section III.A.

See infra notes 38-39, 97-99 and accompanying text.

On this distinction, see infra note 97 and accompanying text.

As discussed below, Justice Scalia’s dissenting opinion may have been groping for this idea, though Scalia was not able to put it in these terms because he lacked the distinction between semantic content and communicative content. See infra note 105 and accompanying text.

I have argued that fit and justification are best understood as two dimensions of justification. See infra notes 29, 34 and accompanying text.

See infra text following note 32; infra note 34.

For elaboration of the idea that it can be part of the nature of law that legal systems are supposed to play a certain role, though actual legal systems often fail to do so, see Greenberg, The Standard Picture , supra note 2, at 86-89.

Strictly speaking, the content of the law is not, say, the obligation to take a particular action, but that one is obligated to take the relevant action.

On different senses of the term law , see infra Subsection II.A.3.

I say “at least many,” rather than “all,” because some natural law theorists would maintain that some legal norms are simply fundamental moral norms and that those moral norms are among the ultimate facts of the universe. Thanks to Seana Shiffrin for pressing me to clarify this point.

There is a technical issue regarding whether the determinants of legal content are facts, events, states of affairs, etc. I will generally take them to be facts, but nothing in the argument depends on this assumption.

On constitutive explanation, see Mark Greenberg, A New Map of Theories of Mental Content: Constitutive Accounts and Normative Theories , 15 Phil. Issues 299 (2005).

The point of the qualification “primarily” is that the Standard Picture allows that there may be some divergence from its core model. There may be peripheral ways in which law can be determined other than by the linguistic content of authoritative pronouncements, and the Standard Picture also must supplement its core model with an account of how the content of the law as a whole is derived from the individual legal norms that are constituted by individual authoritative pronouncements. There needs to be, for example, a way of resolving conflicts between such individual norms, and the Standard Picture may even allow some more radical departures, such as filtering out or modifying absurd or immoral legal norms. For elaboration and discussion of what this idea of primariness amounts to, see Greenberg, The Standard Picture , supra note 2, at 51-54. For a more nuanced account of the Standard Picture generally, see id. at 40-55.

Language enables us reliably and systematically to convey information to others. The information thus conveyed is linguistic content. There are a variety of aspects of linguistic meaning, including semantic content and speaker’s meaning. The important point for our purposes is that linguistic contents can be systematically derived through reliable mechanisms, mechanisms that are much studied in philosophy of language and linguistics. Contrast meaning in this sense with a loose nonlinguistic sense of the word. In the latter sense, meaning is roughly equivalent to significance, upshot, or consequence. For example, one might ask the meaning of a recent political development or of an embarrassing situation. Meaning in this sense is not a kind of linguistic content at all. See Greenberg, The Standard Picture , supra note 2, at 47-48. Meaning in the sense of linguistic content also is to be distinguished from legal meaning , where the legal meaning of, say, a statutory text is simply its contribution to the content of the law. If we use meaning in the sense of legal meaning, it is trivial to say that a statute’s contribution to the law is its meaning. In these terms, the Standard Picture holds, roughly, that an authoritative legal text’s linguistic content constitutes its legal meaning. For discussion of many types of linguistic and mental content and their relation to the content of the law, see Greenberg, Legislation as Communication? , supra note 2.

It is also plausible that many lawyers, judges, and law professors (other than legal philosophers) take the Standard Picture for granted to the extent that they talk and think about the theoretical issue of the relation between the determinants and the content of the law. Certainly, practitioners and scholars often say that the goal of legal interpretation is to ascertain the “meaning” of a legal text, such as a statute. (The majority and dissenting opinions in Smith are an example.) It might be suggested, however, that such talk of the “meaning” of a statute should be understood to refer to legal meaning—the statute’s contribution to the content of the law—not to its linguistic content. If “meaning” refers to legal meaning, however, then it is vacuous to say that in working out a statute’s contribution to the law, we should seek the statute’s meaning. More likely, many have not clearly recognized the distinction between a statute’s linguistic content and a statute’s contribution to the content of the law. And failing to make this distinction is, itself, a way of presupposing the Standard Picture. With respect to the failure to make the distinction, Mitchell Berman and Kevin Toh point out that “the relevant ambiguity [between the linguistic content of the text and the content of the law] is close to ubiquitous in originalist writing,” and “in nonoriginalist writing too.” Mitchell N. Berman & Kevin Toh, On What Distinguishes New Originalism from Old: A Jurisprudential Take , 82 Fordham L. Rev. 545, 547 & n.11 (2013). I should emphasize that I am not suggesting that the actual practice of legal interpretation reflects the Standard Picture. See Greenberg, The Standard Picture , supra note 2, at 72-81. My point is, rather, that when lawyers, judges, and law professors describe what they are doing, many seem to assume the Standard Picture.

Where does the American Legal Realist movement fit in? Legal realism was an important movement, but not really a participant in the debate over what determines the content of the law; one main strand of realism largely took for granted the central positivist thesis. To simplify greatly, legal realists accept the positivist understanding of what determines the content of the law, but they take a much more pessimistic (or perhaps realistic) view of the extent to which those sources of law are capable of yielding determinate legal norms. See Greenberg, The Standard Picture , supra note 2, at 65 n.31; Brian Leiter, Legal Realism and Legal Positivism Reconsidered , 111 Ethics 278 (2001). For discussion of the legal realists’ indeterminacy thesis and Dworkin’s theory, see Mark Greenberg, Implications of Indeterminacy: Naturalism in Epistemology and the Philosophy of Law II , 31 L aw & Phil. 619, 629-38 (2012). Others might have taken the conclusion that the content of the law is substantially indeterminate to be a reductio of the positivist premises, but the legal realists embraced indeterminacy. See Mark Greenberg, Naturalism in Epistemology and the Philosophy of Law , 30 Law & Phil . 419, 441, 447 (2011).

Legal positivism is not monolithic; several characteristic positivist theses can be distinguished. See, e.g. , Joseph Raz, The Authority of Law 37-52 (1979); Jules Coleman, Negative and Positive Positivism , 11 J. L egal Stud. 139 (1982).

On this problem, see Greenberg, How Facts Make Law , supra note 2; Mark D. Greenberg & Harry Litman, The Meaning of Original Meaning , 86 Geo. L.J. 568, 613-17 (1998). See also Greenberg, The Standard Picture , supra note 2.

I argue elsewhere that H.L.A. Hart’s version of legal positivism, the most influential position in contemporary philosophy of law, assumes the Standard Picture. See Greenberg, The Standard Picture , supra note 2, at 54-55, 60-61, 69. I also provide other evidence that the Standard Picture is taken for granted by many philosophers of law, including natural law or anti-positivist theorists. See id . at 60-72. John Finnis, for example, seems to accept the Standard Picture, holding that the content of the law is the content of authoritative pronouncements. He then goes on to claim that such internally valid law is not legally authoritative “in the focal sense” unless it is morally authoritative. John Finnis, Natural Law and Natural Rights 27 (1980). For a legal positivist position that rejects the Standard Picture, see Scott J. Shapiro, Legality (2011). As he has explained in personal communication, Shapiro holds that the content of the law is determined by the content of certain plans, and he holds that the content of the relevant plans is not constituted by the linguistic content of the planning texts (or the contents of the planners’ intentions). One reason for this is the role of “meta-interpretation” in constituting the content of the plans. See id. at 331-87.

See Greenberg, The Standard Picture , supra note 2, at 60-72.

See id. at 62-66. I do not mean to endorse the position that the only anti-positivist positions consistent with the Standard Picture are obviously false. See id. at 65 n.32. My goal is rather to explain why one who sees the law through the lens of the Standard Picture will tend to find it difficult to see why anti-positivism would be at all attractive and would entirely miss the possibility of anti-positivist positions such as Dworkin’s or my own.

See Greenberg, The Standard Picture , supra note 2, at 61-62 & nn.22-25.

Indeed, I have argued elsewhere that Dworkin’s view has been widely misunderstood because legal theorists have taken for granted that the Standard Picture is common ground. They have therefore wrongly taken Dworkin’s view to be a perverse way of developing the Standard Picture. In particular, they have taken Dworkinian interpretation to be a way of working out the linguistic content of the legal texts. See id. at 64-65.

Dworkin sometimes formulates his theory to include in the content of the law not just the principles but also propositions that follow from them. He does not explicate the relevant notion of “following from,” but presumably the idea is that the principles imply more specific propositions. For example, the principle that no one can benefit from his or her own wrong implies the proposition that one who murders a testator cannot inherit under the will. See Ronald Dworkin, Law’s Empire 15-20 (1986). The qualification about propositions that follow from the principles does not affect the points I make in the text, and I will omit it for simplicity.

Dworkin’s flagship statement of his view is Law’s Empire (1986). And many of the ideas were first developed in Taking Rights Seriously (1977) and A Matter of Principle (1985). Near the end of Justice for Hedgehogs (2011), however, Dworkin briefly suggests that he now holds a very different view. See Ronald Dworkin, Justice for Hedgehogs 405-09 (2011). The discussion is highly compressed, but one reading is that Dworkin’s new position is that the content of the law is that part of the moral profile that is created by the actions of legal institutions and that the courts are morally obligated to enforce. In other words, on this reading, the new position is a version of the Moral Impact Theory that restricts legal rights and obligations to those that should be enforced by courts. Another reading, however, is that the new position is simply that the content of the law is whatever the courts are morally obligated to enforce: “Legal rights are those that people are entitled to enforce on demand, without further legislative intervention, in adjudicative institutions that direct the executive power of sheriff or police.” Id. at 406. This latter position seems to be the view that Dworkin adopts in his posthumous article, Ronald Dworkin, A New Philosophy for International Law , 41 Phil. & Pub. Aff. 2, 12 (2013). A serious problem with both positions is that they rule out in principle the possibility of legal obligations that the courts and similar institutions—because of, e.g., their institutional limitations, their relations with other branches of government, and the like—should not enforce. For example, it is a familiar idea that the President and Congress may have legal duties that the courts should not enforce. For a powerful argument that constitutional law goes well beyond what the courts should enforce, see Lawrence Gene Sager’s classic article, Fair Measure: The Legal Status of Underenforced Constitutional Norms , 91 Harv. L. Rev. 1212 (1978). For Dworkin’s response, which seems to assume that his own account is correct, see Dworkin, Justice for Hedgehogs , supra , at 412-13. Another problem with the appeal to what courts should enforce is that an account of law should help us to explain why courts should enforce some rights and not others; we therefore cannot appeal to what courts should enforce in order to explain what is law.

In personal conversations, Dworkin acknowledged the shift in his views. In the text, when I refer to Dworkin’s view, I mean the well-known view expounded in Law’s Empire , not the view Dworkin briefly suggests in his very late work.

See Dworkin, Law’s Empire, supra note 28, at 45-275, esp. 284-86; Ronald Dworkin , Taking Rights Seriously 81-130 (1977). I have argued that fit is best understood as one aspect of justification. See Greenberg, How Facts Make Law , supra note 2, at 263 n.47. Otherwise, Dworkin’s account relies on two unrelated dimensions, one non-normative and the other normative, and has no way of balancing them against each other. Perhaps because of this problem, Dworkin often presented the view as holding that the law is the morally best principle that meets some threshold level of fit. This version of the view is also problematic, both because it has no principled way of determining what level of fit is enough and because it gives such a large role to moral merit in determining the content of the law. See infra note 34.

The relevant notion of moral justification cannot be the ordinary one. On the ordinary notion, for an action to be morally justified is for it to be supported or required by the balance of reasons. Many of the actions taken by legal institutions are not supported or required by the balance of reasons. Therefore, when Dworkin seeks the principles that best justify all the past practices of a legal system, he is seeking principles that best justify actions that are not in fact morally justified in the ordinary sense. Because the practices are often not morally justified, the principles that best justify them will not in general be true moral principles. Roughly, Dworkin’s idea is that in trying to find the principles that best justify the relevant practices, there is a trade-off between increasing the degree of fit and improving the moral merit of the principles. I think that there are serious difficulties with how to understand the relevant notion of moral justification, but this is a topic I cannot address here.

One caveat about Figure 1: I do not mean to take a position on the idea of principles that morally justify all legal actions. As noted supra note 29, I think that there are serious difficulties with the relevant notion of moral justification.

If Dworkin had believed that the set of principles that best justifies all of the practices of a legal system coincides with what is morally required in light of the legal practices, it would have been extremely strange for him not to have said so. Moreover, in that case, it would be unclear what the point would be of introducing his distinctive account of legal interpretation with its unusual notion of the principles that best justify the practices. See supra note 29. He could simply have taken the straightforward view of the Moral Impact Theory—that legal obligations are the moral obligations that come about as a result of the actions of legal institutions.

See, e.g. , Dworkin , Law’s Empire , supra note 28, at 262.

As discussed supra note 17, once the linguistic content of the legal texts has been extracted, yielding legal norms, the Standard Picture does allow a secondary role for morality in, for example, filtering or even filling gaps in the legal norms.

See Dworkin, Law’s Empire , supra note 28, at 284-85, 387-88; Dworkin, Taking Rights Seriously, supra note 29, at 340-42. I have argued that, contrary to the way Dworkin often presented the view, the idea of a threshold of fit beyond which substantive moral considerations take over should be regarded as merely a heuristic or expository device. See Greenberg, How Facts Make Law , supra note 2, at 263 n.47. On what I take to be the better view, finding the principles that best justify the practices involves a trade-off between fit and justification. See supra note 29. This understanding would somewhat mitigate the directness of Dworkin’s reliance on the problematic idea that a principle can be law because it is morally good. But, as pointed out in the text above, it is still the case that a principle’s moral merit counts in favor of its being part of the law. And when two candidate principles fit the practices about equally well, moral goodness is decisive.

Dworkin, Law’s Empire , supra note 28, at 379.

I contrasted the three accounts of statutory interpretation in the Introduction. In Part III, I illustrate the implications of the Moral Impact Theory for legal interpretation in more detail.

In this Essay, my goal is to offer a theory of law—an explanation of how the determinants make the content of the law what it is. I contrast my theory’s account of statutory interpretation with the accounts yielded by the Standard Picture and Dworkin’s theory because those are the dominant theories of law. There are, of course, many other accounts of statutory interpretation, but most lack a theory of law, and I therefore don’t consider them. To take just one example, Justice Stephen Breyer’s account of statutory and constitutional interpretation advises us to take a variety of factors into account. See Stephen Breyer , Active Liberty (2006). But he does not offer a theory of law according to which these factors have the corresponding role in determining the content of the law. That is, he does not argue that we should give a particular consideration a certain relevance in interpreting a statute because that consideration in fact has that relevance in determining the content of the law.

See Shapiro , supra note 23, at 185-88; see also Joseph Raz, Practical Reason and Norms 171-77 (1975).

See Greenberg, Legislation as Communication? , supra note 2, at 230-33, 241-50.

See id. at 222-26, 229-30; Greenberg, The Standard Picture , supra note 2, at 42-55, 63-66. I argue that linguistic considerations are inadequate to determine which of those linguistic contents is the relevant one for legal purposes. Nonlinguistic considerations, such as moral ones, have to be introduced in order to adjudicate between the competing linguistic contents. To make things worse, once we introduce such considerations, they often support other candidates for the content of the law that are not linguistic contents of the relevant texts. See Mark Greenberg, Legislation as Communication? , supra note 2; Greenberg, The Communication Theory of Legal Interpretation and Objective Notions of Communicative Content (UCLA Sch. of Law, Research Paper No. 10-135, 2010), http://ssrn.com/abstract=1726524 .

I am using the term practical here in a relatively narrow sense to concern only questions of what to do. In a broader sense, practical questions would include questions of what to feel or what sort of character to have. Thanks to David Plunkett for suggesting clarification here.

The Moral Impact Theory is a work in progress, and the claim that the relevant moral obligations are all-things-considered, rather than pro tanto, moral obligations is probably the aspect of the theory that I advance most tentatively. I am tempted by an alternative version of the theory, on which whatever pro tanto moral obligations come about in the appropriate way— the legally proper way —would be legal obligations. (On the important idea of the legally proper way, see infra Section II.B.) Some of these obligations would be merely pro tanto, not bottom-line , legal obligations. (Bottom-line legal obligations are those that, after taking into account all of the relevant legal considerations, have not been overridden or outweighed. For example, one who escaped from prison to avoid being burned to death in a fire may breach a pro tanto legal obligation but not a bottom-line legal obligation. In normal parlance, legal obligation is used for bottom-line legal obligations.) On this alternative version of the theory, conflicts between pro tanto legal obligations would be resolved in accordance with what the underlying moral considerations, on balance, require. See infra Part IV. The obligations that win out would be the bottom-line legal obligations. These legal obligations might not be all-things-considered moral obligations; they could be overridden or outweighed by other moral considerations. I am grateful to Selim Berker, Barbara Herman, Scott Hershovitz, David Plunkett, and Scott Shapiro for discussion of these issues.

To avoid confusion, I will not use “obligation” (or other normative terms) in the sociological sense.

There will sometimes be controversy over whether particular putative obligations are genuine. The existence of such controversy does not make the notion of genuine obligation problematic—any more than controversy over which beliefs are true makes the notion of a true belief problematic. Indeed, as Ronald Dworkin was fond of pointing out in discussion, in a typical disagreement about what people are obligated to do, both sides agree that genuine obligations exist; the disagreement concerns the content of the obligations. There are difficult questions about what makes it the case that, for example, someone has a particular obligation, but we need not address such questions for purposes of this paper. Talk of genuine obligations does not presuppose any particular metaethical view, for example objectivism or subjectivism about morality.

Some theorists maintain that there are no genuine obligations (reasons, rights, and so on). This is not the place to address such radical moral—indeed normative—skepticism. In this Essay, I assume what most of us take for granted in our daily lives—that there are reasons for performing some actions rather than others, obligations to do certain things and not to do others, and so on. Although I cannot argue against normative skepticism here, it is worth noting that much of our concern with law presupposes that such skepticism is false. On the skeptical view, people have interests and desires and wield raw power, but there is no reason to be concerned with unfairness, inequality, cruelty, or injustice.

What matters is that, on my view, legal obligations are genuine, all-things-considered, practical obligations. As noted in the text, I think such obligations are moral. But one who is an error theorist about morality specifically but has no quarrel with genuine practical normativity can still accept the essence of my view. For extended discussion and qualification of a closely related point, see Greenberg, The Standard Picture , supra note 2, at 81-84.

For the term moral profile , see id. at 56-57.

On the distinction, see also id. at 66-67.

See Greenberg, Legislation as Communication? , supra note 2, at 219.

See Greenberg, The Standard Picture , supra note 2, at 66-67. As I say there, I don’t mean to suggest that legal scholars are confused about the difference between texts and rules. Id. at 67 n.34.

Even on the Moral Impact Theory, there will tend to be rough correlations between statutory provisions and legal norms. See id. at 59.

For extensive discussion of the relevant sense of directness, see id. at 44-51. The main point is that, according to the Standard Picture, a legally authoritative pronouncement explains the validity of a legal norm without explanatory intermediaries —that is, not by explaining something else which then explains the norm’s validity. As I explain, the absence of explanatory intermediaries is consistent with the possibility that the making of an authoritative pronouncement is not sufficient for the corresponding norm’s being legally valid.

See infra text accompanying and following note 63.

As is standard, I am distinguishing punishment from the use of force to defend myself or others from an imminent threat.

See Seana Shiffrin, The Divergence of Contract and Promise , 120 Harv. L. Rev. 708 (2007).

Thanks to Seana Shiffrin for this example. On other ways in which the law makes the remedies more determinate, see id. at 720-21 & n.17.

There is a vast literature on coordination problems. For seminal discussions, see David Lewis, Convention (2002); and Thomas Schelling , The Strategy of Conflict ( 1960).

Mitchell Berman provides an astute discussion of problems with arguments that democracy (as well as other values) straightforwardly implies that the Constitution must be interpreted in accordance with its original meaning. Mitchell N. Berman, Originalism Is Bunk , 84 N.Y.U. L. Rev . 1, 69-75 (2009).

For discussion of some democratic failings of legislatures, see Hillel Y. Levin, Contemporary Meaning and Expectations in Statutory Interpretation , 2012 U. Ill . L. Rev. 1103, 1134. For nuanced accounts of what democracy supports with respect to constitutional interpretation, see Christopher L. Eisgruber, Constitutional Self-Government (2001); and Lawrence G. Sager, Justice in Plainclothes: A Theory of Constitutional Practice (2004) . It is worth noting that, contrary to what is sometimes assumed, the obligation that a promise generates may not correspond exactly to the linguistic content of the promise. For discussion, see Greenberg, Legislation as Communication? , supra note 2, at 238-39. Bernard Williams may have something like this in mind when he says: “[P]romises in informal contexts are less than contracts: neither the agent nor the recipient need fall back on every word of what was originally understood.” Bernard Williams, Truth and Truthfulness: An Essay in Genealogy 112 (2002). (In my view, the situation with respect to contracts is more complex than Williams’s comment implies.)

See Greenberg, The Standard Picture , supra note 2, at 99-100.

See id. at 84-102.

See Joseph Raz, The Morality of Freedom 45 (1986). Raz uses the example in developing his account of authority. I do not mean to suggest that the new moral obligation replaces the pre-existing moral obligations. People will continue to have relatively open-ended moral duties, such as a duty of beneficence. Thanks to Barbara Herman for pressing me to clarify this point.

See infra Section IV.B.

See also Greenberg, The Standard Picture , supra note 2, at 73-75.

On the consensus that there is no such general moral obligation, see Greenberg, The Standard Picture , supra note 2, at 99-101.

For discussion of the special case of particularized orders (ones directed at particular individuals), such as an order issued by a court after a final judgment, directing a particular individual to pay a particular sum of money, see infra Section IV.B.

The term altered may be misleading. The original, relatively vague moral prohibition will often remain in force. On the other hand, a reason for using the term is that the pre-legal moral reasons are part of the explanation of the new prohibition. Thanks to Scott Hershovitz for pressing me to clarify this point.

Scott Hershovitz argues that the new obligation (the criminal law obligation) is to the state, and that is why it is permissible to punish violators. See Scott Hershovitz, The Authority of Law , in The Routledge Companion to Philosophy of Law 65 (Andrei Marmor ed., 2012). On that view, all criminal law obligations differ from the pre-existing moral obligations on the dimension of to whom the obligation is owed.

The obligations may be strengthened as a result. But, in my stipulative use of the term, to say that the obligations are reinforced is neutral with respect to whether the obligations are strengthened. Adding reasons against engaging in certain conduct can also have the salutary epistemic effect of dispelling uncertainty about the existence of an obligation, one that already in fact obtains.

When the actions of legal institutions do not generate new obligations but merely result in additional reasons for pre-existing moral obligations, then, strictly speaking, I should talk of the moral obligations that are reinforced in the appropriate way, rather than those that come about in the appropriate way.

Thanks to Seana Shiffrin for suggesting this example. Legal institutional action can also fail to generate legal obligations. See infra Section IV.B.

Such a method could, in a particular case, ultimately improve the moral situation overall, for example by producing a backlash against the legal system, or even a revolution. The paradoxical method is not a reliable way of improving the moral situation in normal circumstances, however. In general, accounts of what makes an object or system with a point or function defective depend on a distinction between normal and abnormal circumstances (for the relevant type of object or system). For example, under certain circumstances, a heart with a leaky valve may be better at circulating blood than a heart without a leak. But a heart with a leaky valve is nevertheless defective because such a heart will not generally be effective at circulating blood under the circumstances that are normal for hearts.

There are other interesting ways in which legal institutions can generate moral obligations that are intuitively not “legally proper.” For example, suppose that a legislature explicitly states that it is merely suggesting, not mandating, a proposed solution to a coordination problem. Despite the precatory language, the legislative pronouncement could have the effect of making the proposed solution more salient than others, thereby generating a moral obligation to adopt that solution. It would seem peculiar to characterize this moral obligation as a legal obligation. (Thanks to Ben Eidelson for raising this example.) On my view, the reason that the resulting moral obligation does not count as a legal obligation derives from another aspect of the nature of legal systems. In The Standard Picture and Its Discontents , I argue that a legal system, by its nature, is supposed to generate all-things-considered binding obligations. Greenberg, The Standard Picture , supra note 2, at 84-96. I call this the bindingness hypothesis . The hypothesis is not that generating binding obligations is an aim of legal systems, but rather that it is a constraint on how a legal system is to go about fulfilling other aims, such as changing the moral situation for the better. Id. at 88-89. Because legal systems are supposed to change the moral situation for the better by generating all-things-considered binding obligations, an institution that explicitly purports not to be generating binding obligations is not acting in the legally proper way. Therefore, the obligations that result, even if they happen to be all-things-considered binding, are not legal obligations.

As a preliminary matter, it is worth noting that the answer to this question is less critical for my theory than it is for theories of law that presuppose the Standard Picture. On the Moral Impact Theory, by contrast with such theories, there is no claim that legal institutions have the special power to create legal obligations merely by issuing pronouncements according to specified procedures. On the Moral Impact Theory, moreover, legal obligations are a subset of genuine obligations, and whether we classify institutions as legal or not has no effect on what we take our genuine obligations to be. Thus, the distinctions between legal and non-legal obligations and between legal and non-legal institutions are less important than on many other theories.

Having said this, it is an important question what makes an institution a legal institution. For example, which institutions are legal, and therefore which obligations are legal, will have implications for which obligations a legal system should enforce.

The claim in the text is too quick. That a legal system , by its nature, is supposed to improve the moral situation doesn’t entail that every legal institution is supposed to do that. Some legal institutions might have minor supporting roles. But it is part of the Moral Impact Theory that the legal institutions that are relevant for its purposes—the ones that generate those moral obligations that are legal obligations—are ones that are supposed to improve the moral situation. As Ben Eidelson pointed out to me, this point is really an elaboration of the notion of the legally proper way of changing the moral profile, discussed above. That is, in order for a change in the moral profile to come about in the legally proper way, it must be the result of action by a legal institution that, by its nature, is supposed to improve the moral situation. The bindingness hypothesis, see supra note 72 , may also yield a necessary condition on a legal institution.

Shapiro, supra note 23, at 213-17 . We disagree, however, about what makes it the case that the law has a particular aim or is supposed to do something. On Shapiro’s view, “[t]he law possesses the aim that it does because high-ranking officials represent the practice as having a moral aim or aims.” Id . at 216-17. On my view, such representations are only one determinant of what law is for or is supposed to do.

Raz, supra note 37 , at 150-54. Raz’s analysis has a third condition: a legal system must be an open system. Id . at 152-54.

Shapiro , supra note 23, at 222.

See Raz , supra note 37, at 150; Shapiro, supra note 23, at 223-24.

On my usage of the term legal interpretation , see infra note 100.

508 U.S. 223 (1993). The discussion in this Section focuses on statutes. For elaboration on the way in which the Moral Impact Theory understands the impact of appellate decisions, see supra Section II.B.

Smith , 508 U.S. at 228, 230; id. at 242-44 (Scalia, J., dissenting).

Id. at 229 (majority opinion).

Id. at 242, 245 (Scalia, J., dissenting). Justice Scalia seems to take his discussion of how words ordinarily are used to be an explication of their ordinary meaning. As I discuss in the text, however, his argument is better understood as getting at what people ordinarily mean when they use certain words or phrases (roughly, speaker’s meaning as opposed to semantic content).

Id. at 229, 236.

Id. at 231.

Id. at 239.

Id . at 240. How is Congress’s intention concerning which transactions are to receive augmented punishment different from Congress’s intention concerning how the language is to be construed? The former is an intention concerning the ultimate legal impact of the statute; the latter, by contrast, is a linguistic intention. For a nice example of how the two can come apart, see the discussion of Saadeh v. Farouki , 107 F.3d 52 (D.C. Cir. 1997), in Greenberg, Legislation as Communication? , supra note 2, at 242-44.

Smith , 508 U.S. at 240.

Id. at 243 (Scalia, J., dissenting).

Id. at 233 (majority opinion).

Id. at 233-35.

Id. at 246 (Scalia, J., dissenting).

Id. at 246-47 (Scalia, J., dissenting).

In some instances, the opinions appeal to past practice. See id. at 228, 233-35, 239-40 (majority opinion); id. at 241-42 (Scalia, J., dissenting). On why past practice cannot provide an adequate account, see infra note 102.

The majority and dissent do not even agree about which considerations are relevant . While the dissent appeals to the Sentencing Guidelines, the majority finds it “dubious . . . that the Sentencing Guidelines are relevant in the present context.” Id. at 231. But neither side offers a reason for its position.

Scott Soames , Interpreting Legal Texts: What Is, and What Is Not, Special About the Law , in 1 Philosophical Essays 403 (2008); Stephen Neale, Textualism with Intent 69-72 (Nov. 2008) (unpublished manuscript) (on file with author).

See Soames, supra note 96, at 412-14; Neale, supra note 96, at 26-36. The distinction derives from the seminal work of Paul Grice. Paul Grice, Studies in the Way of Words (1989). I am setting aside the further distinction between what is stated or asserted and what is merely implicated, as it is unnecessary to the present discussion.

Soames , supra note 96, at 414-15. The discussion of Smith in Neale’s manuscript is incomplete, but it is clear from the rest of the manuscript (and personal conversations) that this is Neale’s central point. See Neale, supra note 96, at 70-72; see also id. at 26-27, 35-36, 49-50 & n.33, 60-62, 66-68.

See Soames , supra note 96. A caveat with respect to Neale. In a later version of his rich paper, he writes that the communicative content of a statute (his preferred term is what a statute states ) “leaves wide open the question of the contribution it makes to the law,” and concedes that the latter question goes “well beyond the philosophy of language.” Neale, The Intentionalism of Textualism 5 (2009) (unpublished manuscript) (on file with author). Aside from this official disclaimer, however, Neale seems to assume throughout that the communicative content of a statute is its contribution to the law. Moreover, if the disclaimer were taken seriously, Neale’s paper could not do what it purports to do. For example, his paper claims, on exclusively linguistic grounds, to dissolve the debate between textualists and intentionalists. But that debate concerns a statute’s contribution to the content of the law, not merely its communicative content. For criticism of the communicative content theory of law held by Soames, Neale, and others, see Greenberg, Legislation as Communication? , supra note 2.

As I use the term, legal interpretation is the activity of working out the content of the law. Statutory interpretation , in particular, seeks to ascertain a statute’s contribution to the content of the law. My usage contrasts with one according to which interpretation is the activity whose ultimate goal is to ascertain the linguistic content of the relevant legal texts. For this latter usage, see Lawrence Solum, Originalism and Constitutional Construction , 82 Fordham L. Rev. 453 (2013). Interpretation in my sense is also not to be equated with how courts should decide cases. For example, in deciding cases, courts should sometimes create new legal standards and should sometimes not enforce existing legal standards. See infra Section III.C for brief discussion of the distinction between determining what the law is and deciding cases.

On the rule of lenity, see Greenberg, The Standard Picture , supra note 2, at 76. On past decisions, see supra text accompanying note 62.

Two other main candidates for what could explain the relevance of various factors to statutory interpretation are linguistic considerations and established practice (“that’s how we do things in this legal system”). With respect to the former, I have argued elsewhere that, though the study of language is helpful in clarifying and distinguishing the candidates for a statute’s contribution to the content of the law, it lacks the resources to explain which of these candidates constitutes a statute’s contribution to the law. See Greenberg, Legislation as Communication? , supra note 2.

With respect to past practice, notice first that it may itself be relevant for moral reasons. For example, if courts have in the past reliably interpreted statutes according to the semantic content of the text rather than what the legislature intended to communicate, then legislators and the public have reason to understand legislators to be voting on the semantic content, not on the communicative content. So there are democratic reasons for interpreting the statute in accordance with the past practice. Next, even if past practice can provide a reason for interpreting a statute in a particular way, it can’t be the only reason. For one thing, it’s familiar for judges and legal theorists to argue in favor of rejecting a particular well-established practice. Justice Scalia, for example, has famously argued (on democratic grounds) that legislative history deserves no weight in statutory interpretation. Such arguments would be incoherent if past practice were the only relevant consideration. For another thing, when past practice offers support for different ways of interpreting a statute, as it frequently does in our legal system, it provides no help in resolving the conflicts. In Smith , for example, appeal to past practice does not resolve the issue. More fundamentally, I have proposed elsewhere that it is an essential feature of a theoretically interesting class of legal systems of which our legal system is a member—and perhaps of all legal systems—that there are always reasons why a particular aspect of the practice has the consequences that it does for the content of the law. The mere fact that things have been done a particular way in the past cannot by itself provide such a reason. See Greenberg, How Facts Make Law , supra note 2; Greenberg, How Facts Make Law II , supra note 2; Greenberg, On Practices and the Law , supra note 2.

See, e.g. , Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 17-18 (1997); John F. Manning, What Divides Textualists from Purposivists? , 106 Colum. L. Rev. 70 (2006).

See, e.g ., Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999).

Soames suggests understanding the disagreement along essentially these lines. See S oames , supra note 96, at 412-15.

Accounts of statutory and constitutional interpretation that are grounded on moral considerations often assume that there is one candidate for a provision’s contribution to the content of the law, whether it be original public meaning, communicative content, or something else, that is supported by moral considerations with respect to all statutory or all constitutional provisions. See, e.g. , sources cited supra notes 103-104. The Moral Impact Theory makes no such assumption. It may be that the relevant values point in different directions in the different circumstances of different statutory or constitutional provisions.

143 U.S. 457 (1892).

Id. at 458.

Id. at 465.

Id. at 465-72.

See Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985) (“[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.”); Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1206 (2011) (“We have long applied ‘the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.’” (quoting King v. St. Vincent’s Hosp. , 502 U.S. 215, 220-21 n.9 (1991))).

Thanks to Ben Eidelson for suggesting the example of the canon concerning Native Americans.

The fact that the theory does not convert statutory interpretation into a mechanical procedure is no objection to it. Indeed, it would raise serious doubts about the Moral Impact Theory if it purported to offer an algorithm for statutory interpretation. Below, I consider the objection that, because the Moral Impact Theory has the consequence that working out the content of the law requires moral reasoning, it makes it impossible for law to fulfill its settlement function. See infra Section IV.B.

It is familiar to encounter arguments that, in a particular context, only certain moral considerations should be considered. But this type of argument rests on the claim that, in the context in question, it is morally better, on balance, not to take certain moral considerations into account. What is needed to block the argument in the text is, rather, an argument for not taking into account certain considerations, regardless of whether, on balance, it is better that they be taken into account. A different possible way to block the argument would be to find a proprietary legal justification for not taking into account moral considerations. It is conceivable that the nature of law itself might determine how statutory interpretation is to be carried out. In that case, however, no appeal to democracy or the like would be relevant. To block the argument, we would need a proprietary legal reason why, say, one aspect of democracy is relevant to statutory interpretation but other aspects of democracy are not.

See Jerry Fodor, The Mind Doesn’t Work That Way: The Scope and Limits of Computational Psychology 23-40 (2000).

See supra Subsection II.A.3.

Thanks to Derek Parfit for helpful discussion on this point.

It is also worth noting that the content of the law in the United States may appear to fall further short of ideal justice than it actually does because of the judicial unenforcement of constitutional norms. See Sager , supra note 57; Sager, supra note 28. For example, because of institutional concerns, courts do not invalidate some statutes that are in fact constitutionally invalid.

See Larry Alexander & Emily Sherwin, The Rule of Rules: Morality, Rules, and the Dilemma of Law (2001).

See Dworkin, Law’s Empire, supra note 28, at 93.

Seana Shiffrin has argued that law has a function of morally educating citizens and developing their moral capacities. See Seana Valentine Shiffrin, Inducing Moral Deliberation: On the Occasional Virtues of Fog , 123 Harv. L. Rev. 1214 (2010). If law has such a function, then the need to engage in moral reasoning to work out the content of the law actually enables the law to better fulfill one of its functions.

See Greenberg, The Standard Picture , supra note 2, at 96-104.

See supra text accompanying notes 51-62.

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Essay 16 Lon L. Fuller: The Morality of Law

• Published: November 1983
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This chapter discusses Lon L. Fuller's book The Morality of Law . This imaginative, original, and thought-provoking book is richly stocked with a variety of themes, many of which deserve a much fuller treatment than this chapter accords to them. Its central theme is the unique virtue of conceiving of law and even of defining ‘law’ as ‘the [purposive] enterprise of subjecting human conduct to the governance of rules’. The morality of duty and the morality of aspiration, and the inner and external moralities of law are described. In this book, Fuller considers the appropriateness to different types of issue of different decision-procedures, among them adjudication and majority vote.

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The Morality and Law Relationship Essay

Introduction.

Moral principles are the backbone of society. In the process of establishing rules and hierarchies to follow, people have chosen certain principles and beliefs that are beneficial to them as a group. Common taboos such as killing or stealing are understood as detrimental to social life, creating an incentive to prevent people from committing them. Similarly, nations create and uphold laws in order to reach specific goals or prevent unwanted outcomes. There is a direct link between what society understands as valuable, morally and ethically, and legislation. With the evolution of human thought, the law changed accordingly, following certain precedents or exchanging them for newer ones.

While it is impossible for established law to account for any moral dilemma, the commonly understood boundaries of right and wrong can often be supported by existing legislation. This paper is concerned with discussing and showcasing the direct link between moral issues and legality. Using examples from the past, including case law and historical events, it will be possible to approach this subject. In particular, topics of international workers’ rights and racial segregation will be broached, as their legal status has shifted along with the people’s moral values.

Changes in Law Created by Moral Concerns

Worker rights.

Throughout history, work has always been a part of people’s lives. An activity directed at securing a living, creating certain outcomes that are necessary for human prosperity. With the transition from feudal to capital societies, work became vital in producing goods and services. Without labor, it is impossible to support the economy, maintain a capitalist framework and fulfill the needs of consumers. Workers as a central force in promoting the necessary outcomes for society as a whole. Due to the existence of a profit motive, and a lack of regulation in early capitalism, emerging factories rarely had workplace regulations or protections for their laborers. For many, this resulted in trauma, injury, and death in the workplace. People were overworked in unsafe conditions for meager pay, forced into the production cycle that regarded them as simple cogs in the machine.

The mistreatment of workers contributed to the emergence of worker’s rights organizations, which argued against unethical and immoral workplace treatment of employees. Different nations have had their own distinct relationships with the concept of workplace advocacy, depending on their history or leadership. However, the vast majority of nations have been able to enact labor laws in a certain capacity. Social movements, protests, sit-ins and active participation of workers all across the world were effective in highlighting the moral reprehensibility of contemporary professional practices 1 . Most worker’s rights organizations found the existing lack of protections or considerations for the working class intolerable and focused on helping the common people. They argued that individuals have to be treated with dignity and fairness, considering their worth and individual humans and their needs. This is especially true of considerations such as child labor, unreasonably long work hours, or a lack of days off 2 . In the US, a combination of factory owner neglect and a desire to maximize profits drove factories to ignore the moral and ethical concerns of their workers. The Fair Labor Standards Act, introduced in 1938, established regulations for acceptable work hours, pay, and days off and fully prohibited child labor (Fair Labor Standards Act of 1938). The incessant work of activists and worker’s interest groups has forced changes in the government, which recognized the unethical nature of harsh business practices. Other nations were similarly capable of negotiating fairer labor standards. In France, the Matignon Agreements of 1936 established a regulated work week, labor protections and minimum wage 3 . For UK workers, the 1998 National Minimum Wage Act was a notable legislative change, giving all employees more livable and secure wages 4 . The collective work of governments and their people was able to make labor practices align better with the social and moral standards of today’s age.

Segregation and Massive Resistance in the US

Segregation is another major consideration for the United States of America, one connected with its storied legacy of slavery. Even after slaves were legally freed, black people were largely unable to enjoy the same rights and capabilities as their white counterparts. Local governments, businesses and various entities worked to dictate where the black population could live, study, and even eat. Certain states used their authority to force the newly freed slaves into a system of suppression and exploitation. In the state of Virginia, for example, the local constitution of the time focused heavily on reinforcing the principles of white supremacy and black subjugation 5 . In particular, black people were largely excluded from voting, disallowing them from shaping the future of their community. Similarly, all-black schools received limited funding, and African-Americans were often forced to live in poorer areas 6 . The combination of existing law and a lack of protection contributed to a systematic disparity between the black and white populations.

Despite established laws and protections against segregation existing in the US Constitution, states were able to exercise their own authority in order to reinforce certain outcomes. However, considerable public pushback could also be felt, both from the legal and ethical side of the issue. With the precedent set by the Brown v. Board of Education case, other courts and public figures argued on the unconstitutional nature of segregation 7 . Public figures in newspapers, such as Lenoir Chambers of The Virginian-Pilot, worked tirelessly to convince the public about the immoral nature of segregation 8 . The efforts of black activist groups, good-faith politicians and courts have laid a path forward to fighting the remains of segregation in the US. This has resulted in other precedent court cases, such as the one discussed in Harrison’s contemporary article 9 . The writing talks about the Court for the Eastern District of Virginia’s decision to rule desegregation as unconstitutional, which signaled a major shift in legal and public opinion within Virginia. The existence of an active conversation has helped the courts to take matters to the legal level and support vulnerable individuals.

The examination of these two subjects has presented an important connection between legislation, people’s rights and morality. In the course of history, people that cared about the lives and health of others wanted to see positive change which reflected the value of human life have prompted changes in legislation. Considerations of ethics and morality of people’s treatment coincided with the need to protect certain groups, allowing the law to change. Workers demanded to be treated with dignity and understanding that was warranted by their importance, prompting the government to introduce better labor standards. Similarly, activists and public media figures fought against segregation and opposed attempts at re-introducing it in society. Their concerns and passion, often focused on the well-being and security of others, were rooted in what they understood as right for society. People who want to see their community better reflect individual-centered moral considerations are largely responsible for shaping today’s legislation.

Reference List

Crawford, Jason. “How Factories Were Made Safe.” The Roots of Progress .

Daugherity, Brian. “Desegregation in Public Schools.” Encyclopedia Virginia .

Harrison, Joseph. “Virginia’s ‘Massive Resistance’ Laws Declared Unconstitutional.” The Journal of Negro Education 28, no. 2 (1959): 163.

Hayter, Susan, and International Labour Office. The Role of Collective Bargaining in the Global Economy : Negotiating for Social Justice . Cheltenham, Uk ; Northampton, Ma: Edward Elgar ; Geneva, Switzerland, 2011.

Lebowitz, Shana. “Here’s How the 40-Hour Workweek Became the Standard in America – Business Insider.” Business Insider . Business Insider, 2015.

Leidholdt, Alex. Standing before the Shouting Mob Lenoir Chambers and Virginia’s Massive Resistance to Public School Integration. Univ Of Alabama Pr, 2007.

Queen Mary University of London. “A Short History of the Living Wage in the UK.” Www.qmul.ac.uk .

Ralph Clipman Mcdanel. The Virginia Constitutional Convention of 1901-1902 . Holmes Beach, Fl: Gaunt, 1999.

Appendix 1 – Case Law

• Brown v. Board of Education of Topeka [1954] 347 U.S. 483 (U.S. Supreme Court).

Appendix 2 – Legislation

Fair Labor Standards Act of 1938 [Online]. U.S. Department of Labor Wage and Hour Division.

• Shana Lebowitz, “Here’s How the 40-Hour Workweek Became the Standard in America – Business Insider,” Business Insider (Business Insider, 2015). Web.
• Jason Crawford, “How Factories Were Made Safe,” The Roots of Progress. Web.
• Susan Hayter and International Labour Office, The Role of Collective Bargaining in the Global Economy : Negotiating for Social Justice (Cheltenham, Uk ; Northampton, Ma: Edward Elgar ; Geneva, Switzerland, 2011).
• Queen Mary University of London, “A Short History of the Living Wage in the UK,” Www.qmul.ac.uk. Web.
• Ralph Clipman Mcdanel, The Virginia Constitutional Convention of 1901-1902 (Holmes Beach, Fl: Gaunt, 1999).
• Brian Daugherity, “Desegregation in Public Schools,” Encyclopedia Virginia. Web.
• Alex Leidholdt, Standing before the Shouting Mob Lenoir Chambers and Virginia’s Massive Resistance to Public School Integration. (Univ Of Alabama Pr, 2007).
• Joseph Harrison, “Virginia’s ‘Massive Resistance’ Laws Declared Unconstitutional,” The Journal of Negro Education 28, no. 2 (1959): 163.
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IvyPanda. (2023, June 19). The Morality and Law Relationship. https://ivypanda.com/essays/the-morality-and-law-relationship/

"The Morality and Law Relationship." IvyPanda , 19 June 2023, ivypanda.com/essays/the-morality-and-law-relationship/.

IvyPanda . (2023) 'The Morality and Law Relationship'. 19 June.

IvyPanda . 2023. "The Morality and Law Relationship." June 19, 2023. https://ivypanda.com/essays/the-morality-and-law-relationship/.

1. IvyPanda . "The Morality and Law Relationship." June 19, 2023. https://ivypanda.com/essays/the-morality-and-law-relationship/.

Bibliography

IvyPanda . "The Morality and Law Relationship." June 19, 2023. https://ivypanda.com/essays/the-morality-and-law-relationship/.

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Home > Faculty Publications > Faculty Books > 251

Faculty Books

The Authority of Law: Essays on Law and Morality

Joseph Raz , Columbia Law School Follow

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Description.

This classic collection of essays, first published in 1979, has had an enduring influence on philosophical work on the nature of law and its relation to morality. Raz begins by presenting an analysis of the concept of authority and what is involved in law's claim to moral authority. He then develops a detailed explanation of the nature of law and legal systems, presenting a seminal argument for legal positivism. Within this framework Raz then examines the areas of legal thought that have been viewed as impregnated with moral values – namely the social functions of law, the ideal of the rule of law, and the adjudicative role of the courts.

The final part of the book is given to understanding the proper moral attitude of a citizen towards the law. Raz examines whether the citizen is under a moral obligation to obey the law and whether there is a right to dissent. Two appendices, added for the revised edition, develop Raz's views on the nature of law, offering a further dialogue with the work of Hans Kelsen, and a reply to Robert Alexy's criticisms of legal positivism.

This revised edition makes accessible one of the classic works of modern legal philosophy, and represents an ideal companion to Raz's new collection, Between Authority and Interpretation .

Disciplines

Jurisprudence | Law | Law and Philosophy | Legal Ethics and Professional Responsibility

9780199573561

Oxford University Press

New York, NY

The 1st edition (1979) of this title is available as an eBook through the Columbia University Libraries.

Recommended Citation

Raz, Joseph, "The Authority of Law: Essays on Law and Morality" (2009). Faculty Books . 251. https://scholarship.law.columbia.edu/books/251

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Department of Philosophy

Morality, authority, and law: essays in second-personal ethics i.

Stephen Darwall presents a series of essays that explore the view that central moral concepts are irreducibly second-personal, in that they entail mutual accountability and the authority to address demands. He illustrates the power of the second-personal framework to illuminate a wide variety of issues in moral, political, and legal philosophy. Section I concerns morality: its distinctiveness among normative concepts; the metaethics of ‘bipolar obligations’ (owed to someone); the relation between moral obligation’s form and the substance of our obligations; whether the fact that an action is wrong is itself a reason against action (as opposed to simply entailing that sufficient moral reasons independently exist); and whether morality requires general principles or might be irreducibly particularistic. Section II consists of two essays on autonomy: one discussing the relation between Kant’s ‘autonomy of the will’ and the right to autonomy, and another arguing that what makes an agent’s desires and will reason giving is not the basis of ‘internal’ practical reasons in desire, but the dignity of persons and shared second-personal authority. Section III focuses on the nature of authority and the law. Two essays take up Joseph Raz’s influential ‘normal justification thesis’ and argue that it fails to capture authority’s second-personal nature, without which authority cannot create ‘exclusionary’ and ‘preemptive’ reasons. The final two essays concern law. The first sketches the insights that a second-personal approach can provide into the nature of law and the grounds of distinctions between different parts of law. The second shows how a second-personal framework can be used to develop the ‘civil recourse theory’ in the law of torts.

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The Nature of Law

Lawyers are typically interested in the question: What is the law on a particular issue? This is always a local question and answers to it are bound to differ according to the specific jurisdiction in which they are asked. In contrast, philosophy of law is interested in the general question: What is Law? This general question about the nature of law presupposes that law is a unique social-political phenomenon, with more or less universal characteristics that can be discerned through philosophical analysis. General jurisprudence, as this philosophical inquiry about the nature of law is called, is meant to be universal. It assumes that law possesses certain features, and it possesses them by its very nature, or essence, as law, whenever and wherever it happens to exist. However, even if there are such universal characteristics of law—which is controversial, as we will later discuss—the reasons for a philosophical interest in elucidating them remain to be explained. First, there is the sheer intellectual interest in understanding such a complex social phenomenon which is, after all, one of the most intricate aspects of human culture. Law, however, is also a normative social practice: it purports to guide human behavior, giving rise to reasons for action. An attempt to explain this normative, reason-giving aspect of law is one of the main challenges of general jurisprudence. These two sources of interest in the nature of law are closely linked. Law is not the only normative domain in our culture; morality, religion, social conventions, etiquette, and so on, also guide human conduct in many ways which are similar to law. Therefore, part of what is involved in the understanding of the nature of law consists in an explanation of how law differs from these similar normative domains, how it interacts with them, and whether its intelligibility depends on other normative orders, like morality or social conventions.

Contemporary legal theories define these two main interests in the nature of law in the following terms. First, we need to understand the general conditions that would render any putative norm legally valid. Is it, for example, just a matter of the source of the norm, such as its enactment by a particular political institution, or is it also a matter of the norm’s content? This is the general question about the conditions of legal validity. Second, there is the interest in the normative aspect of law. This philosophical interest is twofold: A complete philosophical account of the normativity of law comprises both an explanatory and a justificatory task. The explanatory task consists of an attempt to explain how legal norms can give rise to reasons for action, and what kinds of reasons are involved. The task of justification concerns the question of whether people ought to comply—morally speaking or all things considered—with law’s demands. In other words, it is the attempt to explain the moral legitimacy of law and the subjects’ reasons for complying with it. A theory about the nature of law, as opposed to critical theories of law, concentrates on the first of these two questions. It purports to explain what the normativity of law actually consists in. Some contemporary legal philosophers, however, doubt that these two aspects of the normativity of law can be separated. (We will return to this later.)

Thus, elucidating the conditions of legal validity and explaining the normativity of law form the two main subjects of any general theory about the nature of law. In section 1, we will explain some of the main debates about these two issues. In section 2, we will discuss some of the methodological debates about the nature of general jurisprudence. In the course of the last few centuries, two main rival philosophical traditions have emerged about the nature of legality. The older one, dating back to late mediaeval Christian scholarship, is called the natural law tradition. Since the early 19th century, natural law theories have been fiercely challenged by the legal positivism tradition promulgated by such scholars as Jeremy Bentham and John Austin . The philosophical origins of legal positivism are much earlier, though, probably in the political philosophy of Thomas Hobbes . The main controversy between these two traditions concerns the conditions of legal validity. Basically, legal positivism asserts, and natural law denies, that the conditions of legal validity are purely a matter of social facts. In contrast to positivism, natural law claims that the conditions of legal validity are not exhausted by social facts; the moral content of the putative norms also bears on their legal validity. As the famous dictum, commonly attributed to Saint Augustine, has it: lex iniusta non est lex (unjust law is not law). (Augustine, De Libero Arbitrio, I, 5; see also Aquinas, Summa Theologica, I-II, Q. 96, Art. 4.)

1.1 The Conditions of Legal Validity

1.2 the normativity of law, 2.1.1 conceptual analysis views, 2.1.2 investigating law itself, 2.1.3 the metanormative inquiry view, 2.1.4 the prescriptive view, 2.1.5 constructive interpretation of legal practice, 2.2.1 preliminaries, 2.2.2 is legal theory evaluative in the relevant sense, other internet resources, related entries, 1. general jurisprudence.

The main insight of legal positivism, that the conditions of legal validity are determined by social facts, involves two separate claims which have been labeled The Social Thesis and The Separation Thesis. The Social Thesis asserts that law is, profoundly, a social phenomenon, and that the conditions of legal validity consist of social—that is, non-normative—facts. Early legal positivists followed Hobbes’ insight that the law is, essentially, an instrument of political sovereignty, and they maintained that the basic source of legal validity resides in the facts constituting political sovereignty. Law, they thought, is basically the command of the sovereign. Later legal positivists have modified this view, maintaining that social rules, and not the facts about sovereignty, constitute the grounds of law. Most contemporary legal positivists share the view that there are rules of recognition, namely, social rules or conventions which determine certain facts or events that provide the ways for the creation, modification, and annulment of legal standards. These facts, such as an act of legislation or a judicial decision, are the sources of law conventionally identified as such in each and every modern legal system. One way of understanding the legal positivist position here is to see it as a form of reduction: legal positivism maintains, essentially, that legal validity is reducible to facts of a non-normative type, that is, facts about people’s conduct, beliefs and attitudes.

Natural lawyers deny this insight, insisting that a putative norm cannot become legally valid unless it passes a certain threshold of morality. Positive law must conform in its content to some basic precepts of natural law, that is, universal morality, in order to become law in the first place. In other words, natural lawyers maintain that the moral content or merit of norms, and not just their social origins, also form part of the conditions of legal validity. And again, it is possible to view this position as a non-reductive conception of law, maintaining that legal validity cannot be reduced to non-normative facts. See the entry on natural law theories .

The Separation Thesis is an important negative implication of the Social Thesis, maintaining that there is a conceptual separation between law and morality, that is, between what the law is, and what the law ought to be. The Separation Thesis, however, has often been overstated. It is sometimes thought that natural law asserts, and legal positivism denies, that the law is, by necessity, morally good or that the law must have some minimal moral content. The Social Thesis certainly does not entail the falsehood of the assumption that there is something necessarily good in the law. Legal positivism can accept the claim that law is, by its very nature or its essential functions in society, something good that deserves our moral appreciation. Nor is legal positivism forced to deny the plausible claim that wherever law exists, it would have to have a great many prescriptions which coincide with morality. There is probably a considerable overlap, and perhaps necessarily so, between the actual content of law and morality. Once again, the Separation Thesis, properly understood, pertains only to the conditions of legal validity. It asserts that the conditions of legal validity do not depend on the moral merits of the norms in question. What the law is cannot depend on what it ought to be in the relevant circumstances.

Many contemporary legal positivists would not subscribe to this formulation of the Separation Thesis. A contemporary school of thought, called inclusive legal positivism , endorses the Social Thesis, namely, that the basic conditions of legal validity derive from social facts, such as social rules or conventions which happen to prevail in a given community. But, inclusive legal positivists maintain, legal validity is sometimes a matter of the moral content of the norms, depending on the particular conventions that happen to prevail in any given community. The social conventions on the basis of which we identify the law may, but need not, contain reference to moral content as a condition of legality (see, for example, Waluchow 1994).

The natural law tradition has undergone a considerable refinement in the 20th century, mainly because its classical, popular version faced an obvious objection about its core insight: it is just difficult to maintain that morally bad law is not law. The idea that law must pass, as it were, a kind of moral filter in order to count as law strikes most jurists as incompatible with the legal world as we know it. Therefore, contemporary natural lawyers have suggested different and more subtle interpretations of the main tenets of natural law. For example, John Finnis (1980) views natural law (in its Thomist version) not as a constraint on the legal validity of positive laws, but mainly as an elucidation of an ideal of law in its fullest, or highest sense, concentrating on the ways in which law necessarily promotes the common good. As we have noted earlier, however, it is not clear that such a view about the necessary moral content of law is at odds with the main tenets of legal positivism. To the extent that there is a debate here, it is a metaphysical one about what is essential or necessary to law, and about whether the essential features of law must be elucidated in teleological terms or not. Legal positivists do not tend to seek deep teleological accounts of law, along the lines articulated by Finnis, but whether they need to deny such metaphysical projects is far from clear.

The idea that the conditions of legal validity are at least partly a matter of the moral content or merits of norms is articulated in a sophisticated manner by Ronald Dworkin’s legal theory. Dworkin is not a classical natural lawyer, however, and he does not maintain that morally acceptable content is a precondition of a norm’s legality. His core idea is that the very distinction between facts and values in the legal domain, between what the law is and what it ought to be, is much more blurred than legal positivism would have it: Determining what the law is in particular cases inevitably depends on moral-political considerations about what it ought to be. Evaluative judgments, about the content law ought to have or what it ought to prescribe, partly determine what the law actually is.

Dworkin’s legal theory is not based on a general repudiation of the classical fact-value distinction, as much as it is based on a certain conception of legal reasoning. This conception went through two main stages. In the 1970s Dworkin (1977) argued that the falsehood of legal positivism resides in the fact that it is incapable of accounting for the important role that legal principles play in the law. Legal positivism envisaged, Dworkin claimed, that the law consists of rules only. However, this is a serious mistake, since in addition to rules, law is partly determined by legal principles. The distinction between rules and principles is a logical one. Rules, Dworkin maintained, apply in an “all or nothing fashion.” If the rule applies to the circumstances, it determines a particular legal outcome. If it does not apply, it is simply irrelevant to the outcome. On the other hand, principles do not determine an outcome even if they clearly apply to the pertinent circumstances. Principles provide judges with a legal reason to decide the case one way or the other, and hence they only have a dimension of weight. That is, the reasons provided by the principle may be relatively strong, or weak, but they are never “absolute.” Such reasons, by themselves, cannot determine an outcome, as rules do.

The most interesting, and from a positivist perspective, most problematic, aspect of legal principles, however, consists in their moral dimension. According to Dworkin’s theory, unlike legal rules, which may or may not have something to do with morality, principles are essentially moral in their content. It is, in fact, partly a moral consideration that determines whether a legal principle exists or not. Why is that? Because a legal principle exists, according to Dworkin, if the principle follows from the best moral and political interpretation of past judicial and legislative decisions in the relevant domain. In other words, legal principles occupy an intermediary space between legal rules and moral principles. Legal rules are posited by recognized institutions and their validity derives from their enacted source. Moral principles are what they are due to their content, and their validity is purely content dependent. Legal principles, on the other hand, gain their validity from a combination of source-based and content-based considerations. As Dworkin put it in the most general terms: “According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice” (Dworkin 1986, 225). The validity of a legal principle then, derives, from a combination of facts and moral considerations. The facts concern the past legal decisions which have taken place in the relevant domain, and the considerations of morals and politics concern the ways in which those past decisions can best be accounted for by the correct moral principles.

Needless to say, if such an account of legal principles is correct, the Separation Thesis can no longer be maintained. But many legal philosophers doubt that there are legal principles of the kind Dworkin envisaged. There is an alternative, more natural way to account for the distinction between rules and principles in the law: the relevant difference concerns the level of generality, or vagueness, of the norm-act prescribed by the pertinent legal norm. Legal norms can be more or less general, or vague, in their definition of the norm-act prescribed by the rule, and the more general or vague they are, the more they tend to have those quasi-logical features Dworkin attributes to principles. More importantly, notice that if you make the legal validity of norms, such as legal principles, depend on moral argument, you allow for the possibility that an entire legal community may get its laws wrong. Any moral mistake in the reasoning leading to a legal principle might render the conclusion about the principle unsound, and the principle itself thus not legally valid. Since there is nothing to prevent judges and other legal actors from making moral mistakes, there is nothing to prevent a result whereby an entire legal community, and for a long time, gets its laws wrong (Marmor 2011, chapter 4). Perhaps Dworkin would have not found this problematic, but others might; the idea that an entire legal community can be systematically mistaken about its own laws might strike legal theorists as deeply problematic.

In the 1980s Dworkin radicalized his views about these issues, striving to ground his anti-positivist legal theory on a general theory of interpretation, and emphasizing law’s profound interpretative nature. Despite the fact that Dworkin’s interpretative theory of law is extremely sophisticated and complex, the essence of his argument from interpretation can be summarized in a rather simple way. The main argument consists of two main premises. The first thesis maintains that determining what the law requires in each and every particular case necessarily involves interpretative reasoning. Any statement of the form “According to the law in \(S\), \(x\) has a right/duty etc., to \(y\)” is a conclusion of some interpretation or other. Now, according to the second premise, interpretation always involves evaluative considerations. More precisely, perhaps, interpretation is neither purely a matter of determining facts, nor is it a matter of evaluative judgment per se , but an inseparable mixture of both. Clearly enough, one who accepts both these theses must conclude that the Separation Thesis is fundamentally flawed. If Dworkin is correct about both theses, it surely follows that determining what the law requires always involves evaluative considerations.

Notably, the first premise of Dworkin’s general argument is highly contestable. Some legal philosophers have argued that legal reasoning is not as thoroughly interpretative as Dworkin assumes. Interpretation, according to this view, long maintained by H.L.A. Hart (1961, chapter 7), is an exception to the standard understanding of language and communication, rendered necessary only when the law is, for some reason, unclear. However, in most standard instances, the law can simply be understood, and applied, without the mediation of interpretation (Marmor 2011, chapter 6).

Dworkin’s legal theory shares certain insights with the inclusive version of legal positivism. Note, however, that although both Dworkin and inclusive legal positivists share the view that morality and legal validity are closely related, they differ on the grounds of this relationship. Dworkin maintains that the dependence of legal validity on moral considerations is an essential feature of law that derives from law’s profoundly interpretative nature. Inclusive positivism, on the other hand, maintains that such a dependence of legal validity on moral considerations is a contingent matter; it does not derive from the nature of law or of legal reasoning as such. Inclusive positivists accept the Social Thesis; they claim that moral considerations affect legal validity only in those cases where this is dictated by the social rules or conventions which happen to prevail in a given legal system. The relevance of morality is determined in any given legal system by the contingent content of that society’s conventions. As opposed to both these views, traditional, or as it is now called, exclusive legal positivism maintains that a norm’s legal validity is never dependent on its moral content. Legal validity, according to this view, is entirely dependent on the conventionally recognized factual sources of law.

It may be worth noting that those legal theories maintaining that legal validity partly depends on moral considerations must also share a certain view about the nature of morality. Namely, they must hold an objective stance with respect to the nature of moral values. Otherwise, if moral values are not objective and legality depends on morality, legality would also be rendered subjective, posing serious problems for the question of how to identify what the law is. Some legal theories, however, do insist on the subjectivity of moral judgements, thus embracing the skeptical conclusions that follow about the nature of law. According to these skeptical theories, law is, indeed, profoundly dependent on morality, but, as these theorists assume that morality is entirely subjective, it only demonstrates how the law is also profoundly subjective, always up for grabs, so to speak. This skeptical approach, fashionable in so-called post-modernist literature, crucially depends on a subjectivist theory of values, which is rarely articulated in this literature in any sophisticated way.

Throughout human history the law has been known as a coercive institution, enforcing its practical demands on its subjects by means of threats and violence. This conspicuous feature of law made it very tempting for some philosophers to assume that the normativity of law resides in its coercive aspect. Even within the legal positivist tradition, however, the coercive aspect of the law has given rise to fierce controversies. Early legal positivists, such as Bentham and Austin, maintained that coercion is an essential feature of law, distinguishing it from other normative domains. Legal positivists in the 20th century have tended to deny this, claiming that coercion is neither essential to law, nor, actually, pivotal to the fulfillment of its functions in society. Before we unpack the various issues involved in this controversy, it might be worth noting that the debate about law’s coercive aspect is one good example of debates in jurisprudence that focus on what might be an essential or a necessary feature of law, regardless of its particular manifestations in this or that legal system. How to understand these claims about the essence of law, and the question of whether these claims are about metaphysics or something else, perhaps about morality, will be discussed in section 2.1.

Returning to law’s coercive aspect, there are several issues entangled here, and we should carefully separate them. John Austin famously maintained that each and every legal norm, as such, must comprise a threat backed by sanction. This involves at least two separate claims: In one sense, it can be understood as a thesis about the concept of law, maintaining that what we call “law” can only be those norms which are backed by sanctions of the political sovereign. In a second, though not less problematic sense, the intimate connection between the law and the threat of sanctions is a thesis about the normativity of law. It is a reductionist thesis about law’s normative character, maintaining that the normativity of law consists in the subjects’ ability to predict the chances of incurring punishment or evil and their presumed desire to avoid it.

In addition to this particular controversy, there is the further question, concerning the relative importance of sanctions for the ability of law to fulfill its social functions. Hans Kelsen, for instance, maintained that the monopolization of violence in society, and the law’s ability to impose its demands by violent means, is the most important of law’s functions in society. Twentieth century legal positivists, like H.L.A. Hart and Joseph Raz, deny this, maintaining that the coercive aspect of law is much more marginal than their predecessors assumed. Once again, the controversy here is actually twofold: is coercion essential to what the law does? And even if it is not deemed essential, how important it is, compared with the other functions law fulfills in our lives?

Austin’s reductionist account of the normativity of law, maintaining that the normative aspect of law simply consists in the subjects’ desire to avoid sanctions, was discussed extensively, and fiercely criticized, by H.L.A. Hart. Hart’s fundamental objection to Austin’s reductionist account of law’s normativity is, on his own account, “that the predictive interpretation obscures the fact that, where rules exist, deviations from them are not merely grounds for prediction that hostile reactions will follow…. but are also deemed to be a reason or justification for such reaction and for applying the sanctions” (Hart 1961, 82). This emphasis on the reason-giving function of rules is surely correct, but perhaps not enough. Supporters of the predictive account could claim that it only begs the further question of why people should regard the rules of law as reasons or justifications for actions. If it is, for example, only because the law happens to be an efficient sanction-provider, then the predictive model of the normativity of law may turn out to be correct after all. In other words, Hart’s fundamental objection to the predictive model is actually a result of his vision about the main functions of law in society, holding, contra Austin and Kelsen, that those functions are not exclusively related to the ability of the law to impose sanctions.

It is arguable, however, that law’s functions in our culture are more closely related to its coercive aspect than Hart seems to have assumed. Contemporary use of “game theory” in the law tends to show that the rationale of a great variety of legal arrangements can be best explained by the function of law in solving problems of opportunism, like the so called Prisoner’s Dilemma situations. In these cases, the law’s main role is, indeed, one of providing coercive incentives for the mutual benefit of all parties concerned. Be this as it may, we should probably refrain from endorsing Austin’s or Kelsen’s position that law’s only function in society is essentially tied to its coercive aspects. Solving recurrent and multiple coordination problems, setting standards for desirable behavior, proclaiming symbolic expressions of communal values, resolving disputes about facts, and such, are important functions which the law serves in our society, and those have very little to do with law’s coercive aspect and its sanction-imposing functions.

The extent to which law can actually guide behavior by providing its subjects with reasons for action has been questioned by a very influential group of legal scholars in the first half of the 20 th century, called the Legal Realism school. American Legal Realists claimed that our ability to predict the outcomes of legal cases on the basis of the rules of law is rather limited. In the more difficult cases which tend to be adjudicated in the appellate courts, legal rules, by themselves, are radically indeterminate as to the outcome of the cases. The Legal Realists thought that lawyers who are interested in the predictive question of what the courts will actually decide in difficult cases need to engage in sociological and psychological research, striving to develop theoretical tools that would enable us to predict legal outcomes. Thus Legal Realism was mainly an attempt to introduce the social sciences into the domain of jurisprudence for predictive purposes. To what extent this scientific project succeeded is a matter of controversy. Be this as it may, Legal Realism paid very little attention to the question of the normativity of law, that is, to the question of how the law does guide behavior in those cases in which it seems to be determinate enough.

A much more promising approach to the normativity of law is found in Joseph Raz’s theory of authority, which also shows how such a theory about the normativity of law entails important conclusions with respect to the conditions of legal validity (Raz 1994). The basic insight of Raz’s argument is that the law is an authoritative social institution. The law, Raz claims, is a de facto authority. However, it is also essential to law that it must be held to claim legitimate authority. Any particular legal system may fail, of course, in its fulfillment of this claim. But law is the kind of institution which necessarily claims to be a legitimate authority.

According to Raz, the essential role of authorities in our practical reasoning is to mediate between the putative subjects of the authority and the right reasons which apply to them in the relevant circumstances. An authority is legitimate if and only if it helps its putative subjects to comply better with the right reasons relevant to their actions—i.e., if they are more likely to act in compliance with these reasons by following the authoritative resolution than they would be if they tried to figure out and act on the reasons directly (without the mediating resolution). For example, there may be many reasons that bear on the question of how fast to drive on a particular road—the amount of pedestrian traffic, impending turns in the road, etc.—but drivers may comply better with the balance of those reasons by following the legal speed limit than if they tried to figure out all the trade-offs in the moment. The legitimacy of the legal speed limit would thus be derived from the way in which it aids people in acting in better compliance with the balance of the right reasons.

Now, it follows that for something to be able to claim legitimate authority, it must be of the kind of thing capable of claiming it, namely, capable of fulfilling such a mediating role. What kinds of things can claim legitimate authority? There are at least two such features necessary for authority-capacity: First, for something to be able to claim legitimate authority, it must be the case that its directives are identifiable as authoritative directives, without the necessity of relying on those same reasons which the authoritative directive replaces. If this condition is not met, namely, if it is impossible to identify the authoritative directive as such without relying on those same reasons the authority was meant to rely on, then the authority could not fulfill its essential, mediating role. In short, it could not make the practical difference it is there to make. Note that this argument does not concern the efficacy of authorities. The point is not that unless authoritative directives can be recognized as such, authorities could not function effectively. The argument is based on the rationale of authorities within our practical reasoning. Authorities are there to make a practical difference, and they could not make such a difference unless the authority’s directive can be recognized as such without recourse to the reasons it is there to decide upon. In other words, it is pointless to have an authoritative directive if, in order to discover what the directive is, you have to engage in the same reasoning that reliance on the directive is supposed to replace. Secondly, for something to be able to claim legitimate authority, it must be capable of forming an opinion on how its subjects ought to behave, distinct from the subjects’ own reasoning about their reasons for action; authority requires some authorship.

Raz’s conception of legal authority provides very strong support for exclusive legal positivism because it requires that the law, qua an authoritative resolution, be identifiable on its own terms, that is, without having to rely on those same considerations that the law is there to resolve. Therefore a norm is legally valid (i.e., authoritative) only if its validity does not derive from moral or other evaluative considerations that the law is intended to replace. Notably, Raz’s theory challenges both Dworkin’s anti-positivist legal theory, and the inclusive version of legal positivism. This challenge, and the controversies it gave rise to, form one of the main topics discussed in contemporary general jurisprudence.

Explaining the rationale of legal authority, however, is not the only component of a theory about the normativity of law. If we hold the legal positivist thesis that law is essentially founded on social conventions, another important question arises here: how can a conventional practice give rise to reasons for action and, in particular, to obligations? Some legal philosophers claimed that conventional rules cannot, by themselves, give rise to obligations. As Leslie Green observed, Hart’s “view that the fundamental rules [of recognition] are ‘mere conventions’ continues to sit uneasily with any notion of obligation,” and this Green finds troubling, because the rules of recognition point to the “sources that judges are legally bound to apply” (Green 1996, 1697). The debate here is partly about the conventional nature of the rules of recognition, and partly about the ways in which conventions can figure in our reasons for action. According to one influential theory, inspired by David Lewis (1969) conventional rules emerge as solutions to large-scale and recurrent coordination problems. If the rules of recognition are, indeed, of such a coordination kind, it is relatively easy to explain how they may give rise to obligations. Coordination conventions would be obligatory if the norm subjects have an obligation to solve the coordination problem which initially gave rise to the emergence of the relevant convention. It is doubtful, however, that the conventions at the foundations of law are of a coordinative kind. In certain respects the law may be more like a structured game, or an artistic genre, which are actually constituted by social conventions. Such constitutive conventions are not explicable as solutions to some pre-existing recurrent coordination problem. The conventional rules constituting the game of chess, for example, are not there to solve a coordination problem between potential players. Antecedent to the game of chess, there was no particular coordination problem to solve. The conventional rules of chess constitute the game itself as a kind of social activity people would find worthwhile engaging in. The constitutive conventions partly constitute the values inherent in the emergent social practice. Such values, however, are only there for those who care to see them. Constitutive conventions, by themselves, cannot ground an obligation to engage in the practice they constitute.

From a moral point of view, the rules of recognition, by themselves, cannot be regarded as sources of obligation to follow the law. Whether judges, or anybody else, should or should not respect the rules of recognition of a legal system, is ultimately a moral issue, that can only be resolved by moral arguments (concerning the age old issue of political obligation). And this is more generally so: the existence of a social practice, in itself, does not provide anyone with an obligation to engage in the practice. The rules of recognition only define what the practice is, and they can say nothing on the question of whether one should or should not engage in it. But of course, once one does engage in the practice, playing the role of judge or some other legal official, as it were, there are legal obligations defined by the rules of the game. In other words, there is nothing special in the idea of a legal obligation to follow the rules of recognition. The referee in a soccer game is equally obliged to follow the rules of his game, and the fact that the game is conventional poses no difficulty from this, let us say, “internal-player’s” perspective. But again, the constitutive rules of soccer cannot settle for anyone the question of whether they should play soccer or not. Similarly, the rules of recognition cannot settle for the judge, or anyone else for that matter, whether they should play by the rules of law, or not. They only tell us what the law is . Unlike chess or soccer, however, the law may well be a kind of game that people have an obligation to play, as it were. But if there is such an obligation, it must emerge from external, moral, considerations, that is, from a general moral obligation to obey the law. The complex question of whether there is such a general obligation to obey the law, and whether it depends on certain features of the relevant legal system, is extensively discussed in the literature on political obligation. A complete theory about the normativity of law must encompass these moral issues as well. (See the entries on political obligation and legal obligation .)

More recently, however, a number of philosophers have started to question the idea that there is something unique to the normativity of law, inviting us to see how laws might affect our reasons for action in ways that are not closely tied to the nature of law (Greenberg 2014, Enoch 2011, Marmor 2016 [2018]). Some of these views (e.g., Enoch, Marmor) purport to show that there are different ways in which the existence of various norms bear on people’s reasons for action, present in law as elsewhere, without denying that the law often makes a difference; these views only deny that there is something unique to the way law changes its subjects’ reasons for action, compared with other types normative demands. Others challenge law’s normativity from an opposite angle (Greenberg 2014, Hershovitz 2015), arguing that the only aspect of law that is of normative significance is the moral difference that it makes to people’s reasons for action.

In the last two decades of the 20th century, new challenges to general jurisprudence, and particularly to legal positivism, have taken an interesting methodological turn. This methodological turn gained momentum with the publication of Dworkin’s Law’s Empire (1986), arguing that not only the law, as a social practice, is a profoundly interpretative (and thus partly, but necessarily, evaluative in nature), but that any theory about the nature of law is also interpretative in a similar way, and thus, equally evaluative. Many of those who do not necessarily share Dworkin’s views about the interpretative nature of legal practice, or the specifics of his theory of interpretation, have joined him in this methodological skepticism about the traditional aims of general jurisprudence, that is, about the possibility of developing a theory about that nature of law that would have general application and remain morally neutral. These, and other resultant methodological challenges to traditional general jurisprudence are taken up in the next section.

It would be fair to say, however, that in the last few years, many legal philosophers have expressed a growing frustration with these traditional debates about the nature of law, calling for legal philosophy to move beyond the Hart-Dworkin debates and explore new avenues of research. Some of these new critics are content to abandon the project altogether, declaring the death of general jurisprudence (Hershovitz 2015). Others, however, are engaged in exploring new challenges. One emerging area of research concerns the artifact nature of law, aiming to learn something about the nature of law from the fact that law seems to be an artifact, created and sustained by humans for particular purposes. (See, for example, Burazin et al. eds., 2018.) Others explore connections between law’s features as artifact and fictionalism, suggesting that their underlying logic and metaphysics share a great deal in common (Marmor 2018). Another new and potentially fruitful area of research focuses on applications of philosophy of language to law, brining new developments in philosophy of language, particularly in pragmatics, to bear on questions of legal interpretation and understanding of legal content (Asgeirsson forthcoming, Asgeirsson 2015, Marmor 2014). This linguistic direction is not uncontroversial, however; some legal philosophers express skepticism about the idea that legal content is determined by linguistic factors (Greenberg 2011) and there is an ongoing debate about these issues. Finally, there also seems to be a growing interest in recent developments in metaphysics that might bear on a theory about the nature of law, and even debates about meta-metaphysics are beginning to emerge in the context of general jurisprudence, purporting to show that ways in which we think about the tasks of metaphysical inquiry may bear on ways we think about the law (Rosen 2010). For example, if the main task of metaphysics is to determine what really exists in the world, irrespective of what we think about it or ways in which we represent the world, metaphysics may not have much to say about the nature of law or, perhaps, it may indicate that only a scientific approach to jurisprudence can yield metaphysically respectable results. If, however, the task of metaphysical inquiry is also to figure out what is more foundational than something else, giving us a hierarchical structure of the world, where some things ground others, then metaphysics might be a very fruitful framework to work with in trying to elucidate the foundations of legality and legal phenomena more generally. This potential metaphysical interest in jurisprudence is at its infancy presently, and time will tell if this new approach gets us interesting results.

2. The Methodology of Jurisprudence

When it comes to the methodology of jurisprudence, we find two main issues. While one is not directly concerned with normativity, the second is. The first asks about the aims and success criteria for philosophical theories about the nature of law:

What is the target that first-order theories of law aim to capture, and when do they succeed in doing so?

The second asks about the role of evaluation in jurisprudential methodology:

Are first-order legal theories inherently or necessarily evaluative or can they be purely descriptive?

Each of these questions will be discussed in turn.

2.1 The Target of a Theory of Law

The first important class of methodological questions in jurisprudence concerns the target of first-order theories of law—that is, what phenomenon such theories aim to provide an account of. In taking a stand on what the proper target of a first-order legal theory is, one incurs a number of other methodological commitments. These include adopting a view about when such theories are successful, taking a stand on what sort of data such theories aim to systematize and explain, and determining what sorts of arguments are legitimately used in deciding between one of these theories and its competitors.

There are five main families of views on this question. One view takes jurisprudence to be a form of conceptual analysis, which is to say that theories of law aim to provide an account of some concept of law. This approach is often associated with Hart’s influential work, The Concept of Law (1994). A second sort of view adopts a more skeptical stance towards the methodology of conceptual analysis and takes theories of law to be in the business of offering a reductive explanation of law itself, not some concept of it. Another recent view sees general jurisprudence as just another branch of metanormative inquiry, which renders it continuous with other philosophical fields like metaethics. Fourth, the prescriptive view takes it that the aim of a theory of law is to specify the notion of law that it would be most desirable for us to adopt. A fifth kind of view, associated with Dworkin’s work, takes it that legal theories are in the business of offering a constructive interpretation of legal practice. In what follows, each of these five views, as well as some of the main issues they face, will be discussed in more depth.

On conceptual analysis views, theories of law aim to capture the concept of law and they succeed to the extent that they provide a coherent account of the relevant data about that concept and related concepts. In particular, the data to be systematized are taken to be people’s intuitions involving some shared concept of law (or cognate concepts like legal validity or legal obligation). In their simplest form, such intuitions can be thought of as judgments about whether the relevant concept does or does not apply to particular cases. Accordingly, on this sort of view, a theory of law aims to provide an account of the conditions under which the target concept of law (or one of its cognates) applies.

What’s more, such a theory can be arrived at by employing the method of conceptual analysis, undertaken from the proverbial armchair. The idea is that the theorist starts with a putative set of criteria for the correct application of the target concept, and then she tests this account against her intuitions about that concept. If the account entails that the concept applies to particular cases that it intuitively does not apply to, then this provides reason to reject or revise the account in question. By contrast, if the account entails that the target concept applies to certain cases and this is the intuitively correct result, this tends to provide affirmative support for the account. The account successfully captures the target concept to the extent that it yields intuitively correct results about particular cases, and does so in an explanatorily satisfying way (as opposed to an ad hoc manner). (For a more in depth discussion of the methodology of conceptual analysis as applied to the concept of law, see Shapiro 2011, 16–22.)

Jurisprudence has been influenced by two main ways of understanding the relevant intuitions (or data) that theories of law aim to systematize. This, in turn, is due to the fact that one might understand concepts themselves, and our intuitions about them, in two different ways. Accordingly, we find two main varieties of the conceptual analysis view of methodology.

The first understanding of concepts takes concept possession to be mainly a matter of linguistic competence. That is, to possess the concept of law is to know when the word “law” as used in its juridical sense (not the scientific sense) applies. Thus, intuitions about the concept of law are to be understood as linguistic intuitions about how to use the word “law.” On the present view, then, conceptual analysis is a mode of linguistic analysis. This sort of view was famously discussed in chapters 1 and 2 of Dworkin’s Law’s Empire (Dworkin 1986, 32, 43–46). It arguably traces back to the kind of ordinary language philosophy associated with J.L. Austin and Gilbert Ryle (Marmor 2013, 210–212).

However, this understanding of concept possession has drawbacks. Perhaps the biggest source of concern in the present context is that this sort of view fuels a version of Dworkin’s “semantic sting” argument (Dworkin 1986, 43–46). The argument may be summarized as follows. Suppose legal theories aim to capture the concept of law and that concept possession just is a matter of knowing when the word “law” applies. If so, the argument runs, legal theories cannot explain disagreement about the grounds of law, that is, about the conditions of legal validity. After all, if legal theories are in this way semantic in nature, then disagreement about what the grounds of law are must boil down to disagreement about when the word “law” applies—at least assuming the parties to the disagreement are not merely talking past one another. But now a dilemma arises. Either legal practitioners possess the same concept of law or they do not. If they do possess the same concept, then it seems they cannot fail to agree about what it takes for a norm to count as law. After all, they all know when the word expressing their shared concept of law applies. But this is implausible, since legal practice in fact is rife with disagreement about what the grounds of law are (and thus, what counts as law or as legal). On the other hand, if legal practitioners do not share the same concept of law, then their disagreement about what the grounds of law are must just be due to the fact that they are talking past one another. But that, too, is implausible. Legal practice, as Dworkin puts it, is not “a grotesque joke” (Dworkin 1986, 44). Accordingly, there must be something wrong with construing legal theories as mere semantic accounts of when the word “law” applies.

If, in light of this argument, we are to abandon the idea that first-order legal theories are semantic theories, there are two obvious ways to proceed. First, one might simply abandon the idea that legal theories are exercises in conceptual analysis. This was Dworkin’s preferred response, though, as we’ll see, one can reject conceptual analysis without adopting Dworkin’s own favored methodology. (More on that in sub-section 2.1.2.) Second, if one wants to still say that legal theories are in the business of analyzing the concept of law, then the obvious response to the semantic sting argument is to deny that concept possession just is a matter of knowing how the word “law” in its juridical sense is to be applied. This suggests a second, richer form of conceptual analysis that legal theorists might be engaged in.

The basic idea behind the richer view is to take it that concept possession, rather than merely being a matter of knowing when words apply, involves something meatier: namely, the possession of a wide range of substantive beliefs or intuitions about the concept, its essential features and its proper application. The assumption is that the intuitions one is disposed to have in virtue of possessing the concept of law will be fertile enough to constitute a particular substantive conception of what the law is and how it functions. The aim of a theory of law, then, would be to systematize these pre-theoretic judgments about the concept of law in order to provide an account of some substantive conception of law. (This sort of richer view of concept possession is discussed, e.g., in Raz 2004, 4–7; Stravopoulos 2012, 78–79; Shapiro 2011, 16–22. It is perhaps also the sort of view presupposed by Hart.) On this view, legal disagreement remains possible because while practitioners might all be using the same concept of law, the richness of the concept allows that they nonetheless might not possess the concept determinately enough, or understand its application conditions thoroughly enough, to guarantee consensus on theoretical questions about what the grounds of law actually are.

However, also this richer understanding of concept possession, and the meatier picture of conceptual analysis it gives rise to, has been widely criticized (Marmor 2013, 215–217; Raz 2004, 10; Leiter 2007, 177–79). One question that immediately arises is which concept of law, exactly, constitutes the proper target of a theory of law. Is it the concept of law that is possessed by the legal practitioners in a particular jurisdiction? Or is it some universally shared concept of law? Worries loom either way. If a legal theory only aims to capture the concept of law employed in a particular jurisdiction, then that would render the theory parochial and it might lose its interest for those who are not concerned with that particular jurisdiction. On the other hand, one might doubt that there really is a universally shared concept of law that is employed by practitioners in all jurisdictions—or if there is one, it is doubtful that it is anything more than the sort of thin concept that one possesses in virtue of knowing what the word “law” in its juridical sense means.

A deeper worry about all forms of conceptual analysis is the question of why we should care about anybody’s concept of law in the first place (Marmor 2013, 216–217; Leiter 2007, 177–79). After all, as philosophers, it seems that it is the nature of law itself that we care about understanding (Raz 2004, 7, 10). Granted, there are interesting sociological questions to be asked about what various groups of people believe to be the case about how law functions. But it is not obvious that there is anything distinctively philosophical about such questions. Insofar as philosophers (qua philosophers) are interested in what people believe about a given concept, this would be because understanding people’s beliefs about the concept is a route to understanding that which it is a concept of (Raz 2004, 4, 10). Accordingly, one might think that what theories of law aim to capture is not anybody’s concept of law in particular, but rather the nature of law itself. (See also the entry on concepts , section 5.2.)

A possible response to this objection is to assert that since law is a social phenomenon and is in part constituted by practitioners’ own understanding of the practice they are engaged in, collecting evidence about the concept of law possessed by legal practitioners is an especially useful way to investigate law itself (Stravopoulos 2012, 79). Still, one might wonder whether this route to investigating the nature of law itself would be the most effective strategy to employ, given its indirectness. Why limit ourselves to asking questions about concepts if law can be studied directly?

A very different response would be to adopt a Platonist account of concepts, according to which they are not mental representations at all, but rather abstract objects akin to the objects of mathematical inquiry. The concept of law, then, would be the abstract object one must grasp in order to think about law. Accordingly, it is this abstract object— the concept of law—that philosophers care about and aim to investigate using the method of conceptual analysis (cf. Bealer 1998). Nonetheless, this view of concepts faces familiar objections. For one, an account is needed of how we can have access to the concept of law, conceived of as an independently existing abstract object. Moreover, even if we can access it, a puzzle arises about how different people who all determinately grasp the concept of law could possibly end up disagreeing about its nature (Sarch 2010, 468–73). Finally, while it might be plausible that a priori disciplines like mathematics and logic aim to investigate abstract objects (see the entry on platonism in the philosophy of mathematics ), it is not clear that the investigation of a social phenomenon like the law, which is heavily dependent on human beliefs, attitudes and behavior, can be understood analogously. While mathematicians might be investigating the nature of abstract objects like numbers or sets, it seems more doubtful that legal philosophers are investigating the abstract object law .

Given the above doubts about conceptual analysis, several views have been suggested according to which first-order legal theories are primarily in the business of describing and explaining the nature of law itself , not any concept of it. Reductionist and naturalistic views fall into this category. (As noted below, such views need not completely eschew the armchair methods just sketched, but to the extent these methods remain viable, a very different explanation of their defensibility would have to be given.)

In particular, reductionist views take it that illuminating the nature of law is a matter of explaining what the law is, and how it operates, in terms of more foundational facts. As a result, first-order theories of law succeed to the extent that they accomplish this in an explanatorily powerful way (Marmor 2013). The goal of a first-order theory, on this sort of view, is to offer a metaphysical reduction of law: that is, to show that the phenomenon of law is actually constituted by, and fully reducible to, some other more foundational type of phenomenon (in the way that chemistry could in principle be reduced to particle physics). Thus construed, positivism, for example, would seek to explain the nature of law by reducing facts about what the law is, how it functions and what it requires, to more foundational social facts—e.g., about people’s behavior, beliefs and dispositions. By providing a reduction of this kind, a theory like positivism purports to illuminate the phenomenon of law itself by breaking it down into its constituents and explaining how they together make up the complex social practice that is the law. (For more on metaphysical reduction in general, see Schroeder 2007, 61–83; see also the entry on scientific reduction .)

One well-known type of reductionist view is naturalized jurisprudence. Brian Leiter has been the most prominent defender of this position (Leiter 2007). Like other reductionist views, naturalized jurisprudence takes the aim of legal theories to be to explain the nature of law itself (not anybody’s concept of it). But what is characteristic of naturalized jurisprudence is that it also insists that a purely empirical methodology should be used in doing so (Leiter 2007, 180–81, 183–99). (See also the entry on naturalism in legal philosophy .)

Naturalists might part company with adherents of other reductionist views over whether or not the armchair methods of philosophers, and related appeals to intuitions, thought experiments and the like, are misguided. The naturalist is likely to reject this mode of inquiry, while other reductionists may be more amenable to using it. A reductionist could in principle defend this sort of inquiry, for instance, by claiming that our particular-case intuitions involve a concept that we have acquired from experience with legal practice, and so such intuitions can be one useful source of information about the nature of law itself. Moreover, if legal practice (as a social phenomenon) is partially constituted by practitioners’ own beliefs and attitudes towards the practice they are engaged in, then evidence about legal practitioners’ concept of law might prove especially relevant as evidence about the law itself (Stravopoulos 2012, 79).

By contrast, naturalists tend not to endorse the armchair method of testing theories of law against intuition, given their aim of making “philosophical theorizing continuous with and dependent upon scientific theorizing” (Leiter 2007, 35). Leiter argues that our intuitions about law are too unreliable to be afforded much epistemic weight (as others have argued with respect to intuitions in other areas of philosophy) (Leiter 2007, 180, 184; cf. Cummins 1998). On Leiter’s view, philosophers generally should aim to unpack the “concepts that have been vindicated by their role in successful explanation and prediction of empirical phenomena” (Leiter 2007, 184). Thus, he suggests a methodology that “tak[es] seriously the…social scientific literature on law…to see what concept of law figures in the most powerful explanatory and predictive models of legal phenomena such as judicial behavior” (Leiter 2007, 184). This methodological view, however, raises questions about why the legal philosopher should study only judicial behavior and not something else. More generally, the naturalist owes an account of what features of law are most in need of explication and why.

A different sort of concern that arises for reductionist views (and perhaps naturalistic views as well) is that it may pose particular problems for positivism. Specifically, if law is a normative phenomenon that gives rise to legal obligations, one might worry that it is not possible to reduce legal facts (i.e., facts about what our legal obligations are) to a set of purely non-normative facts, e.g., social ones. One might think that this would impermissibly transgress the familiar (though not uncontroversial) is-ought gap. (For a discussion of this sort of worry about positivism, see Shapiro 2011, 47–49.)

In response, one route that positivists who want to be reductionists could take is to maintain that legal facts really are descriptive in nature, not genuinely normative. In particular, such positivists might claim that facts about what legal obligations we have simply are descriptive facts about what the law holds that we ought to do—not normative facts about what we really ought to do (Shapiro 2011, 188; see also Hart 1994, 110).

Another recent methodological view developed by Plunkett and Shapiro (2017) takes general jurisprudence to be just another branch of metanormative inquiry. The latter kind of inquiry as a general matter aims to explain how normative thought, talk, and entities (if any) fit into reality. Metaethics is another branch of metanormative inquiry, which focuses on how ethical thought, talk and entities fit into reality. Thus, on the present view the subject of inquiry in general jurisprudence would be legal thought, talk and entities (if any), and the aim of the field would be to explain how such thought and talk about law—as well as legal structures and legal properties (if any)—are best accounted for in one’s general philosophical view of reality. On this view, jurisprudential inquiry would be continuous with—and methodologically quite similar—to the work done in other areas of normative inquiry, especially ethics and aesthetics.

One question that arises for this position, however, concerns the extent to which this is a distinct methodology from those discussed above. If the focus of one’s metanormative inquiry is legal thought and talk, we seem to get rather close to the conceptual analysis picture of how jurisprudence should proceed. On the other hand, if the focus of inquiry emphasizes how legal entities or properties fit into reality in general, then the view ends up seeming rather close to the naturalist position that the topic of jurisprudential inquiry is phenomenon of law itself. Nonetheless, perhaps a particular attraction of the metanormative view is that it can show how both the conceptual analysis picture and the naturalist picture capture distinct pieces of the bigger enterprise of the task that jurisprudence is engaged in. Thus, rather than purporting to replace the other methodologies discussed above, the metanormative view, if sound, would do away with there being a privileged starting point for jurisprudential inquiry (such as metaphysics of legal content, the semantic analysis of legal statements, or the nature of legal obligations).

A different sort of approach to methodology in jurisprudence takes it that the proper aim of a legal theory is to specify a substantive conception of law that it would be especially desirable for people to adopt. Moreover, even if the conception of law that this inquiry ends up supporting departs radically from our pre-theoretical understanding of law, then the resulting theory would recommend abandoning that prior understanding of law. Accordingly, if jurisprudence is chiefly a prescriptive endeavor, then theories of law might end up being radically revisionist in nature (though, of course, not necessarily).

As explained in the next sub-section, Dworkin’s methodological view incorporates some prescriptive elements. But one prominent advocate of an exclusively prescriptive project is Neil MacCormick (MacCormick 1985; see also Campbell 1996; Murphy 2001; Postema 1989; Schauer 1996; Waldron 2001). MacCormick argues that there are compelling normative arguments in favor of adopting a positivist conception of law. In particular, he suggests that values like autonomy and freedom of conscience demand that the law not regulate with a heavy hand “the sphere of aspirational values, of duties of self-respect and of duties of love,” a sphere that concerns “questing for the good beyond duty, or for the right lines of development of a self, or for the proper regard to bestow upon one’s family, friends or neighbors” (MacCormick 1985, 35–36). Values like autonomy and freedom of conscience, McCormack thinks, support the claim that at least within this sphere of conduct, it is desirable to keep the question of what the law requires entirely separate from the question of what morality requires. (However, MacCormick also allows that the law properly can regulate the sphere of “duties of justice,” as these duties are in some sense weightier (MacCormick 1985, 35).) Accordingly, at least in some spheres of conduct, the question of what the law is ought to be held distinct from the question of what morality requires. Thus, MacCormick seems to be offering a normative argument for a claim that has often been associated with positivism, namely a version of the Separation Thesis. (Though, as seen earlier, it is not clear that all positivists must be committed to a strong version of this thesis.)

While the question of what conception of law it is most desirable that people adopt is surely a significant one, it is important to note that the prescriptive view of methodology in jurisprudence is not genuinely in competition with either the conceptual analysis view or the reductionist approach. After all, it might turn out, for example, that positivism provides the best account of our concept of law, or perhaps is the best reductive account of the phenomenon of law itself, even though there are compelling normative arguments for changing the practice or adopting a new concept of it that, say, comports with natural law theory. Accordingly, accounts of the concept of law, or reductive theories of law, are not necessarily inconsistent with prescriptive accounts of what legal theory it would be most desirable from the moral point of view to adopt.

A final methodological view, which deserves separate treatment both because of its influence and sophistication, is Dworkin’s (Dworkin 1986). This view takes it that (i) the target of a first-order theory of law is existing legal practice and (ii) these theories succeed to the extent that they offer a defensible constructive interpretation (in Dworkin’s sense) of that practice. According to the constructive interpretation view, the aim of a first-order theory of law is not to analyze any concept or to reduce legal facts to other more foundational facts. Rather, the aim of a legal theory is to reconstruct the behavior and self-understandings of participants in legal practice and, moreover, to do so in a way that casts this practice in its best moral light. As a result, a theory of law is more successful the better it both fits with the data about how legal practitioners understand the practice they are engaged in, while also normatively justifying that practice (Dworkin 1986; Perry 1995, 129–31; see also the entry on legal interpretivism ).

One concern about the constructive interpretation view of methodology in jurisprudence is that it may not be in genuine competition with either the conceptual analysis or reductive views of methodology. After all, one sort of project is to explain what law actually is and how it operates (perhaps according to our concept of it). But it is a very different sort of project to explain how we should conceive of the law in order for legal practice to be normatively justified. It seems possible that our account of what law actually is tells us one thing (e.g., that certain features of it are essential and others not), while our account of what law should be like in order for the practice to be as justified as possible tells us to think of law in a rather different way (e.g., as having different essential features). Accordingly, some have argued that the constructive interpretation view engages with the other methodological views mentioned above only if it denies what they assert: viz., that legal theories attempt to provide an explanation (perhaps of some particular kind—e.g., reductive) of the actual nature of law (or perhaps our concept of it).

One way that adherents of the constructive interpretation view might deny what certain other methodological views assert is by denying that it is even possible to give a reductive explanation of law. (For discussion, see Marmor 2013, 218.) The thought would be to claim that law is a normative practice, and normative facts cannot be reduced to purely non-normative facts without losing something essential. In response, the reductionist might either deny that legal facts are genuinely normative (in which case the sought-after reduction would be unproblematic), or she might assert that any successful reduction will have to reduce legal facts to a set of facts that includes normative facts (in which case a version of natural law theory might appear attractive).

2.2 Is Legal Theory Inherently Evaluative?

A second widely-discussed question about jurisprudential methodology is whether first-order legal theories are inherently evaluative. The above views about the proper target of first-order theories of law have different implications about this second question. But before explaining that, we must first get the relevant question more clearly in view.

To begin with, one might wonder where the interest in the question of whether legal theory is inherently evaluative comes from. Some of this interest likely traces to the skeptical worry that legal theories purporting to be purely descriptive in fact are pushing some hidden ideological or political agenda. (For more on this, see, e.g., John Gardner’s introduction to Dickson 2004.) A second source of the interest in this question may be the suspicion (or hope) that if legal theory proves to be inherently evaluative, that would be an independent reason to adopt some version of natural law theory. Whether this is so remains doubtful, however, since meta-questions about the methodology of legal theory prima facie seem to be independent of questions in first-order legal theory like what the determinants of the content of law are. What is more, legal scholars might be drawn to the present issue through consideration of Dworkin’s argument that there is a very tight connection between the evaluative nature of theorizing about the law and the evaluative nature of law itself, rendering the content of law inevitably dependent, at least in part, on moral-political considerations. Regardless of the motivations for engaging in the debate about whether legal theory is inherently evaluative, however, this debate has taken on independent significance and has been a fruitful source of insight in its own right.

To avoid confusion, the question we are concerned with here must be clarified in several ways. For there are a number of uncontroversial ways in which legal theory plausibly is or might be evaluative, and these do not go to the heart of the methodological debates in jurisprudence.

First, there are several trivial ways in which legal theory, like theories about any topic , plausibly cannot be entirely value-free. In particular, it seems that one cannot engage in the business of theorizing about law without evaluating the extent to which various theories are coherent, simple, clear, elegant, comprehensive, and so on (Dickson 2004, 32–33). Granted this means that legal theorists must engage in a form of evaluation. But there is nothing special about legal theory in this regard. After all, these meta-theoretical virtues are criteria for the success of theories about any subject matter.

A second seemingly uncontroversial way in which legal theory is evaluative is that one cannot begin to develop a theory of law without determining which of its central features are to be accounted for (Dickson 2001, 38–45). John Finnis, for example, argues that one cannot do first-order legal theory without taking a stand on what the important features of law are that adequate theories must explain (e.g., the law’s claim to authority). However, this seems to require evaluation (Finnis 1980, 9–15).

Nonetheless, it is not likely to be especially controversial that legal theory is evaluative in this way. To see why, distinguish between (a) thick evaluative claims , which predicate some kind of moral goodness, or perhaps all-things-considered value, of an item and (b) thin evaluative claims , which do not. (This distinction roughly tracks Julie Dickson’s distinction between directly evaluative propositions and indirectly evaluative propositions. See Dickson 2001, 51–55.) Thus, the simplest thick evaluative claims have the form: \(X\) is morally [all-things-considered] good [bad] . Such claims might also be comparative in nature, such that they have the form: \(X\) is morally [all-things-considered] better [worse] than \(Y\). By contrast, thin evaluative claims judge how well some item fares relative to a standard that is neither moral nor all-things-considered normative. Such claims do not entail any thick evaluative claims either. Examples of thin evaluative claims thus would include “\(X\) is important” and “\(X\) is interesting”. Accordingly, even if legal theorists must make thin evaluative claims in order to be able to begin the project of developing a first-order legal theory, this does not mean that they must make thick evaluative claims in order to do so. After all, one might construct a theory that captures a range of legal phenomena that are deemed central or important, while still remaining agnostic about whether these phenomena are themselves valuable.

A third way in which legal theory could in principle be evaluative, though uncontroversially so, is suggested by the prescriptive view discussed in section 2.1.3. If the job of a first-order theory of law is to identify the concept of law it would be most desirable for us to employ, then there is a sense in which the resulting theory of law would of course be evaluative. Nonetheless, as seen above, prescriptive theories aim to answer a different question from theories in the conceptual analysis, reductive or interpretive categories. Thus, what matters to the debate about whether legal theory is evaluative is not whether legal theory in principle could be evaluative, but whether it is inevitably or necessarily so.

Now we are in a position to fully appreciate the question of primary interest here. In particular, it is whether theories about the nature of existing legal practice (or perhaps our concept of it) necessarily involve or entail thick evaluative claims about the law. That is, does offering a first-order theory of law of either the conceptual analysis, reductive or constructive interpretation varieties require one to accept claims about how valuable the law, or some feature of it, is? This is the question to be discussed in the remainder of this entry.

Some answers to the question that was discussed in section 2.1 suggest that theories of law are inherently evaluative in the sense of committing advocates of these theories to thick evaluative claims about the law. As we will see, this is most plausibly the case on the constructive interpretation view of methodology. By contrast, other answers to the question discussed in section 2.1 do not obviously entail that first-order legal theories commit their proponents to thick evaluative claims. In particular, this is the case for the conceptual analysis and reductive views of jurisprudential methodology. At least on their face, both these views seem to allow that there can be purely descriptive accounts of law—i.e., accounts that capture the central features of law without being committed to any moral or all-things-considered evaluation of the law. After all, one might think that a particular account does a good job of capturing some widely shared concept of law, but this does not obviously commit one to saying that law, on this concept of it, is good . Likewise, one might endorse a reduction of legal facts to some more foundational set of facts (e.g., certain social facts) without this committing one to thinking that the law is valuable or morally justified.

As a result, at least on their face, both the conceptual analysis and reductive views seem to allow that there can be first-order theories of law that are purely descriptive. Some argument would be needed if one is to endorse the opposite conclusion. Accordingly, let us consider some prominent arguments for thinking that legal theory must be inherently evaluative in nature. (For an overview, see Marmor 2011, 122–35.)

The argument from legal functions

One central argument to the effect that legal theory must be evaluative in the relevant sense begins from the idea that understanding what the law is requires taking a view about what functions it serves (Finnis 1980, 12–17; Perry 1995, 114–20). Moreover, one might think that functions are evaluative in the sense that attributing a function to something is to endorse a standard by which that thing may be judged as successful or unsuccessful. In this way, one might think that legal theory, too, is inherently evaluative.

While this line of thinking plausibly shows that legal theory requires accepting some evaluative claims, it does not obviously show that legal theory necessarily involves thick evaluative claims (Dickson 2001, 114–125). Claims of the form “the function of \(X\) is \(F\)” are naturally classified together with “\(X\) is important” (or more precisely, “\(X\) is important for some purpose \(Y\)”) as thin evaluative claims. Accordingly, asserting that the function of law is \(F\) does not obviously entail any thick evaluative claims about law. After all, it is not obvious why attributing a function to something requires believing that performing that function is either all-things-considered or morally good . Thus, attributing a function to law need not entail any thick evaluative claims.

The argument from the internal point of view

A second natural argument in favor of seeing legal theory as inherently evaluative in the relevant sense relies on the idea that any adequate theory of law must take account of the internal point of view that legal practitioners tend to adopt towards the law. More specifically, taking the internal point of view towards the law is a matter of adopting some kind of attitude of endorsement towards it, seeing it as in some sense justified or as providing reasons for action (Shapiro 2011, 96–97; Perry 1995, 99–100; see also the entry on legal positivism ). Moreover, it is common to think that a critical mass of the participants in legal practice must adopt the internal point of view towards the practice in order for the practice to genuinely count as law. This is a fact that any adequate theory of law must account for, one might think. Accordingly, since the internal point of view involves a positive evaluation of the law, and since any adequate legal theory must account for this point of view, one might infer that any adequate theory of law must itself be inherently evaluative. (One finds versions of such an argument, e.g., in Perry 1995, 121–25; Waldron 2001, 423–28.)

It is unclear whether this argument succeeds, however. After all, it seems in principle possible to explain what kinds of considerations legal practitioners endorse, and why, without oneself endorsing those considerations. Similarly, a first-order legal theory might be able to plausibly explain the truism that legal practitioners tend to take the internal point of view towards (i.e., endorse) the law in their respective jurisdictions without the theory thereby being committed to the claim that the law in any particular jurisdiction (or the law in general) is valuable or justified. Accordingly, it is not obvious why a theory of law cannot in principle capture the internal point of view taken by legal practitioners towards the law without itself being committed to any thick evaluative claims about the law.

The argument from interpretation

Probably the most influential argument for thinking that legal theory is inherently evaluative proceeds from the idea that legal theory is an interpretive endeavor in Dworkin’s sense (Dworkin 1986; for criticism, see Dickson 2001, 105; Marmor 2011, 126–30). To say that legal theory is an interpretive project is to claim that fully understanding what the law is requires construing it as the best instance it can be of the type of thing that it is. Moreover, one might think that in order to construe legal practice as the best instance of the kind of thing that it is requires making thick evaluative claims about the law. (See the entry on legal interpretivism .)

One might attempt to respond to this argument in two ways. A natural, though ultimately unsuccessful, reply is that construing something as the best instance of its kind that it can be does not require taking that kind to be good . Saying that Bernie Madoff was (for a time) the best fraudster in history does not entail that one approves of fraud. As a result, saying that the law must be thus-and-so in order to be a good instance of its kind does not commit one to any thick evaluative claims. Nonetheless, there is a deeper or more interesting sense in which Dworkin’s view renders legal theory inherently evaluative. For Dworkin, legal theory is an interpretive enterprise, and offering a constructive interpretation of legal practice requires construing it in its best moral light . Thus, offering an interpretation of legal practice would require taking a stand on which of the available ways of construing that practice is morally better than the others. Of course, this does not necessarily require asserting that the law, on any particular construal, is good —full stop. But it does seem to require at least saying that some construals of legal practice are morally better than other construals would be. This looks to be a thick evaluative claim, albeit a comparative one. Moreover, one cannot make such comparative judgments without having a view about what would make one construal of legal practice morally better than another. Thus, in at least this sense, taking legal theory to be an endeavor that is interpretive in Dworkin’s sense would make legal theory count as inherently evaluative in the sense we are concerned with here.

Accordingly, if one wants to maintain the possibility of purely descriptive first-order legal theories, a more promising strategy for responding to the argument from interpretation would be to question its key premise—viz., that legal theory necessarily is an interpretive endeavor in Dworkin’s sense. In order for a proponent of the argument from interpretation to assert this premise, some rationale would have to be given for it. That is, some argument would be needed to explain why we should think that understanding law requires giving a constructive interpretation of it. A critic of the argument from interpretation, then, might claim that the argument’s proponents have not carried their burden of providing a rationale for this premise, on which the argument crucially depends.

One possible rationale that might be offered here is that since social practices essentially involve communication, and understanding any form of communication necessarily involves interpreting speakers’ claims, understanding the social practice of law necessarily involves interpreting it. However, this rationale is too quick. Even if it is true that understanding any social practice requires interpretation of some kind or other , it does not follow that doing so requires a constructive interpretation in Dworkin’s sense —i.e., identifying a construal of the practice that casts it in its best moral light (Marmor 2011, 127–28). But the latter claim, of course, is what proponents of the argument from interpretation need to establish in order to reach their desired conclusion that legal theory is inherently evaluative.

Accordingly, we seem to be left in the following dialectical situation. Whether or not legal theory is inherently evaluative in the relevant sense depends on whether the argument from interpretation succeeds. Whether that argument succeeds, in turn, depends on its key premise, i.e., the claim that understanding the law necessarily requires giving a constructive interpretation of it. If a non-question begging argument can be given for this claim, then there would be reason to think that legal theory necessarily is evaluative in nature. By contrast, if no non-question begging argument can be given for thinking that understanding law requires a constructive interpretation, then one would be free to maintain that there can be purely descriptive first-order legal theories.

Of course, even if the argument from interpretation fails and purely descriptive legal theories remain possible , it could still be a worthwhile project to attempt to give a constructive interpretation of legal practice, and the output of this project would indeed be a partially evaluative theory. Nonetheless, these two types of theory would not genuinely be in conflict, as they would be addressed to answering different questions. In the end, therefore, “methodological pluralism” may be the most apt characterization of the state of play in jurisprudence.

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Essay: Natural Moral Law

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Formally introduced by the 13th century philosopher Thomas Aquinas, Natural Moral Law (hereon NML) proposes that goodness can be achieved by discovering and acting upon what is natural. Everything has a purpose/telos, and by fulfilling this purpose, it is thought that goodness can be reached. Aquinas builds his argument upon the synderesis rule: “Good is to be done and pursued, evil is to be avoided”. Whilst the theory invariably has strengths, there are also issues and contradictions which must be assessed if we are to properly evaluate the validity of the theory.

Whilst Aquinas is accredited with having published NML, he was considerably influenced by his predecessors, particularly Aristotle. The role of these philosophers could be argued as being a strength of the theory. Living in the 4th Century BCE, Aristotle said that everything in the world had a “telos”, otherwise known as a Final Cause. It was when something achieved its purpose that Aristotle believed there to be goodness, and so by looking at something’s purpose, people can see what is natural for it to do. According to Aristotle, the ultimate purpose of man is Eudaimonia/Beatitude (reaching a perfect union with God); however, Whilst this may have been valid in the 4th century BCE, Aristotle’s words would not bode well with a secularist society and would consequently discourage people from following these laws. Aristotle defined nature as, “that which is equally valid everywhere… natural is unchanging and has the same power everywhere”, and this would later influence Aquinas in his hierarchy of Laws. Cicero (1st Century BCE) is another philosopher that is heavily tied up within NML; in fact he is often called ‘the father of NML’. In his book On the Republic, he wrote, “one eternal and unchanging law will be valid for all nations and all times”, further mirroring Aquinas’s Laws (Eternal Law, Divine Law, Natural Law and Human Law). The fact that people throughout history have accounted that there are laws to human nature adds greater validity to Aquinas’s words because there are people of other societies and religions that have come to similar conclusions. Even Plato, known as having opposite ideas to Aristotle, touched upon the idea of Natural Law in The Republic when he described, “a city which would be established according with nature”. The extent to which this acts as a strength is debatable because a large number of advocators does not necessarily signify truth. Whilst those that agree with the concept of Argumentum ad populum would claim that numbers equal truth, I would argue otherwise, using the example of of the world being flat — just because thousands believed that this was the case, it did not mean that they were correct.

Cicero and Aristotle were significant in the establishment of NML; however, perhaps the greatest influence was the Bible since Aquinas himself was heavily religious Christian monk who is known to have said in a poem, “we are all madly in love with the same God”. One can see substantial parallels between NML and the Bible, particularly in St. Paul’s Epistles to the Romans where it says, “When Gentiles, who do not possess the law, do instinctively what the law requires”. As with NML, it is implied that law is within human nature and that people have the same moral rules for themselves. “The creation of the world has been clearly perceived in the things that have been made”, (Romans 1:20) seems to have further influenced Aquinas. It seems that Aquinas interpreted that natural revelation refers to what God has allowed for man to understand naturally. Therefore, by understanding nature, one can understand God. It is inevitable that many Christians would observe this biblical influence as being a great strength on NMLs part since, in the eyes of many dogmatic Christians, the Bible is a reliable source to work with (especially since it is “the word of God”). As a secularist, however, I do not regard this as a strength and if anything, I would argue that it was a weakness. In NML, Aquinas does of course make the assumption that there is a God — he goes so far as to make one of his primary precepts worshipping God — however, 21st Century Western milieus are primarily secularist, and so one must question just how much truth a religious theory such as this holds nowadays. Some theologians may argue that a theory with such a biblical basis is able to offer practical benefits to society. Indeed, the American Philosopher, William James, said, “this sort of happiness is found nowhere but in religion”, and maintains that religion, even if false, can be the best path to follow. Within NML, Aquinas uses the Cardinal Virtues to distinguish between real and apparent goods and assist people in following the laws that God has set for us; these virtues — prudence, temperance, fortitude and justice — invariably offer positivity if individuals decide to adopt them. The three virtues of the Bible (faith, hope and charity) similarly promote care and compassion between people. The seven deadly vices additionally guide people, even non-Christians, in living a good life. According to Aquinas, “Vices should be uprooted before virtues are sown, according to Psalm 33:15: \”Turn away from evil, and do good,\” (Summa Theologica). If one avoids the vices and develops the virtues, they will ultimately always correctly use reason and keep to natural law. I do feel for this to be a reasonable strength of NML because it encourages more people to be selfless and kind, and thereby it can have a great practical effect on any society. However, I feel as though there is a contradiction in Aquinas’s reference to the importance of temperance since it is somewhat in contrast with the primary precept of survival — NML states that one should fight in self-defence instead of restraining themselves.

NML is an absolutist theory — in other words, it must be followed without question whatever the circumstances. Aquinas proposed the primary precepts, the primary precepts are the self-evident rules from which the dictates of reason logically flow, as a way of governing one’s morality. They are self-preservation, reproduction, education of children, living in society and worshipping God — the most important of these being survival. These precepts are universal and in his book, Summa Theologica, Aquinas says, “Natural law is the same for all… there is a single standard of truth… known by everyone.”. There are those that would argue for this to be a strength in Aquinas’s argument because it ensures that there is no ambiguity as to how man should react to any given situation. The fact that all people are aware of these fixed rules allows for their to be greater societal order and thereby has a practical effect in preventing political anarchy. This was described particularly well by Bossuet, an advocate for the absolutist rule of King Louis XIV who claimed that, “it is only attention and vigilance that can save us from surprises”, and that it could prevent social anarchy. I can see reason in these claims; after all, rules which are easily understood are more likely to be followed. The fact that the theory is deontological further develops this strength because each action is intrinsically good or bad in itself, which invariably makes it much simpler to follow. Additionally, the deontological element maintains that actions are non-consequential; individuals have no control over the outcomes, only their actions and intentions, and so it could be argued that this gives people more control over their morals. Others would question whether one can ever intrinsically judge an action? Surely one must also consider the consequences since ultimately this is the part that will have an effect.

There are those that have argued that absolutism is a negative thing since it offers no leeway; however, Aquinas’s secondary precepts challenge this weakness since they make the theory more flexible. The secondary precepts are specific rules, such as only having one spouse, which can be interpreted depending on the context of the situation and thereby make the theory more flexible. Aquinas himself said, ““It’s secondary precepts…though they are unalterable in the majority of cases…can nevertheless be changed on some particular and rare occasion.” (Summa Theologica). These dictates are achieved through a more complex process of reasoning. For example, reproduction is one of the primary precepts, and the sexual organs similarly have the purpose of reproduction. This means that it is wrong for one to use these organs in a way that does not create offspring. This is evident in the Bible when Oman is killed because he “spilled his seeds… knew the child would not be his” (Genesis 38:9). St. Paul recognised that it is not always possible to follow natural law and work towards goodness “since all have sinned and fallen short of the glory of God” (Romans 3:23). Humans will always fall short of God’s best for them because of The Fall and man’s violation of their perfect relationship with him, and therefore it is important that there is flexibility within natural law. One could consider for this to act in favour of NML; however, it also raises the question of whether this makes the theory relative instead of absolute. If laws can depend on situation, surely it is not as objective as is first thought?

NML has further been labelled as outdated and no longer applicable in the 21st Century. Aquinas developed NML in a pre-scientific age before Darwin’s theory of evolution was published. Evolution suggests that man is the result of chance and not of God and explains that man is interested in survival not because of natural law but because of evolved instinct. It further states that man is a self-interested animal which contradicts Aquinas’s claim that all people are naturally inclined towards the good. Aquinas was additionally developing his theory in a milieu that did not have to worry about IVF, cloning and euthanasia. I think that this weakness is significant; it is true that NML does not cover many of the moral dilemmas that we face today.

However, one must consider Bernard Hoose and Richard McCormick’s development of a more modern version of NML (proportionalism). This can be used as a strength in favour of NML because it applies Aquinas’s original theory to a modern society. Proportionalism works inside of the framework of NML but does not insist upon an absolutist approach, providing a greater good can be served by laying it aside. To a certain degree, this view does actually adhere to Aquinas’s original theory since he claimed that it would be acceptable for a starving man to steal a loaf of bread in order to prevent himself from dying of hunger. This action adheres to justice because it is fair that the man gets the right to exist — a greater good is served by allowing the man to live. I personally feel that relativist, situational moral laws are more equitable and so I feel for proportionalism to be a substantially more reasonable theory seeing as it takes into account the situation. Consequently, it can be used in response to moral issues which are not covered in the Bible, and Christians can know what God thinks to be right instead of facing confusion. Unlike traditional NML, proportionalism recognises the holistic nature of man and as a result it is more applicable to humankind, making it a strength. Aristotle himself believed that the body and mind were separate and not one psychophysical unit (“we are enclosed in the confinements of the body”); however, he fails to take account of this when developing NML. The needs of the body can interfere with those of the mind, and Sigmund Freud touched upon this in his hierarchy of human needs which states that humans find physiological aspects (e.g. food, water, breathing) the most important, and self-actualisation (e.g. morality), the least important. It is a strength of proportionalism that this is taken into account since it recognises that man’s morals are not always under his control. Some Christian theologians have further observed that humans cannot strive for moral perfection, only moral compromise because we live in a fallen world where we cannot achieve the perfection of God — as Moses said, “their hearts were hard”. Therefore, people’s morals must sometimes be compromised; for example, proportionalism will not allow for somebody to suffer simply in the cause of upholding natural law, and recognises that some moral evils must be permitted if we are to achieve the greater good. Even Pope Francis has spoken in favour of this idea when he said that contraception can be considered as “the lesser of two evils” when having to choose between using contraception and abortion, and his claims that all contraception should be “the subject of serious conscious discernment” suggest that it can sometimes be a viable choice. Even before proportionalism was put forward in 1993, the Catholic Church has occasionally been shown to make NML situational — for example, from 1960-1965 in The Congo, Pope Paul VI “permitted nuns to use contraceptives in case of rape”. There are Catholics whom would argue that this leeway that has been shown on behalf of both the Popes and proportionality creates a gaping hole in the logic of NML since it allows for the authoritarian moral codes of the Catholic Church to be rejected. Whilst I feel that the flexibility of proportionalism is positive, it does lead to confusion as to whether or not it is an absolutist theory; I think that the alterations made by Hoose and McCormick are drastic enough for one to say that it is a completely different theory. It gives too much freedom to decide what is proportionally good, and thereby takes away from its claims of objectivity — which is considered to be a strength because there are no moral or emotional factors involved and it does not depend upon how the person feels on the day. Some have proposed that proportionalism is instead a form of utilitarianism since it takes into account the outcome of an action rather than its intrinsic worth.

The flexibility of the secondary precepts is additionally developed through the idea of Casuistry, derived from the latin word for “case”. This literally means that the morality of an action should be judged on a case by case basis, using NML as a standard to judge against. This can thereby be considered a strength of the theory since it can occasionally take into account the difficulties involved with a particular situation. In the Roman Catholic church, this part of the theory is used to apply the universal principles of Natural Law to specific situations; it is always done in a logical way because most principles have logical consequences. For example, it is principally wrong to kill innocent people, and so it would be wrong to bomb civilian targets (e.g. Dresden in WW2). However, it is acceptable to kill in self defence because this agrees with the primary precept of survival. Aquinas maintains that it can be morally acceptable for innocent people to die, providing that this is not the aim of the action — this is not dissimilar to one of the options of Philippa Foot’s Trolley Problem. Therefore, this is a strength of NML because it allows for greater flexibility in the choices that an individual can make, and the extent to which a person can use their conscience and reason for their own measures. However, we again are faced with the question of whether this makes NML a relativist theory instead of an absolutist theory.

In some situations, there will be an intended outcome and another significant but unintended outcome. Another strength of Natural Law therefore is the principle of Double effect which allows for an individual to morally perform an action that will produce both good and bad results. This is providing that the action itself is good or indifferent; the good effect is the one that is intended; there are no other means of achieving this good effect, and the good effect is not produced by means of the evil effect. In 1949, Joseph Mangan further added that, “there be a proportionately grave reason for permitting the evil effect” (A historical analysis of the principle of double effect). This principle is able to cement Aquinas’s theory because it does not stray from the Aquinas’s ideas of interior and exterior actions — it is maintained that our intentions are more important that the consequences of our actions. Therefore, I feel that this is a moderate strength in support of the theory; however, on a large scale, I do not think that this is something that people should oblige by. Whilst bombing one hundred civilians could save one hundred and one civilians, I do not think that this would be morally acceptable and that it would be better to not perform the action at all. Aquinas sealed this issue in his claims that double effect does not condone unintended outcomes which have devastating effects. In light of this, I would say that this theory somewhat supports NML because it creates a stronger basis on which people can rely when following natural law, and is therefore helpful in encouraging people to practically adopt it.

NML maintains that both the intention and the action are important. This could be regarded as a strength because all judgement takes account of the motives and so one is never condemned for having unknowing performed an evil action (an apparent good). Aquinas states that a person can perform a good interior act but a bad exterior act, for example stealing money to help a friend in need, and whilst theft is a bad action in itself, the individual is not so harshly condemned. I do like the more compassionate element of NML and think that this strength should not be ignored. God wants our actions to be intrinsically good because this acts in accordance with man’s ultimate purpose and so God is glorified.

Aquinas maintained that human nature was essentially good and that man could never knowingly pursue evil; after all, humanity naturally wishes to achieve “be perfect as your heavenly father is perfect” (Matthew 5:48). Some could argue for this to a strength of the theory since Aquinas puts great faith in the actions of man; however, one could also argue that this is merely an ignorant claim which is not true. Aquinas said that there are such things called apparent goods which are actions not in the pursuit of happiness that do not fit with the perfect human ideal. The example that Aquinas uses in Summa Theologica is, “A fornicator seeks pleasure which involves him in moral guilt.”, and whilst this action is morally wrong, the person is doing it because of instinct and not reason and so it cannot be considered as a truly evil action. I must say that I agree strongly with Aquinas’s point; in my opinion, there is no such thing as an evil person or action because all actions have some sort of justification behind them, however strong or weak these may be — perhaps the best example is Adolf Hitler’s conduction of the Jewish Genocide from 1939-1945. Of course, his actions were wrong, but he thought for them to be right. Aquinas would say that Hitler’s choice of this apparent good is an error because it isn’t really good for us. One could have an error of reason if they believe something to be morally right which isn’t. To correctly distinguish between apparent and real goods is to use reason rightly, and Aquinas recognises that this is not always easy; indeed this was made evident when he said, “No evil can be desirable… it is sought indirectly, namely because it is the consequence of free will” (Summa Theologica). Whilst I personally feel for the idea of apparent goods to be correct, I am aware that there are people that do not, and if this is the case, I recognise that this strength is no longer regarded as very strong. Some have argued that there are actions which are simply not justifiable, for example the Stacey Rambold rape of his fourteen year old student. In the case of the Moors Murders, Ian Brady and Myra Hindley repeatedly denied their actions, and surely this is evidence that they knew that what they were doing is wrong. Therefore, Aquinas’s theory is shown to be false because people do recognise when they are performing a morally wrong action. I must however note that it is possible that these criminals thought for their actions to be right and the law to be wrong, which would explain why they tried to deny their actions.

NML has also been acclaimed for its universality — all men and women share a common purpose and so natural law is applicable to everybody. This is a strength and perhaps the greatest practical result of this is the exchangement of judgement between cultures. Having a standard against which all people can be judged, means that one society can involve themselves in another’s political affairs without the fear of disrespecting their country’s morals. For example, countries can rightfully say that events such as South African Apartheid and Pol Pot’s Cambodian Genocide are morally wrong. I must say that this, as a practical effect, is extremely important because without some sort of universal law, some milieus could conduct barbaric events without any consequences. However, I do not feel that these universal laws should be taken from NML; the general standard of morality can instead be set via the UN human rights council. The strength in itself is strong and I agree that it acts in support of the motion.

Aquinas said that our purpose was God-given and evidence for this can be found in the Bible when God created man imago dei, or “in his own image”. Christians would consider for this to be a strength on NML’s part because for them, the Bible is a reliable source from which conclusions can be drawn. However, the 21st Century Secularist Society must question whether beatitude is really the ultimate purpose for those that do not believe in a God. I am a secularist myself and would not consider for my ultimate purpose to be union with God, and surely I could not be working towards this final cause without knowing such. Therefore, I do not feel for this strength to be viable since it is no longer relevant in the modern, scientific age. I do however feel that Aquinas’s proposed purpose of good can be seen as a strength because it encourages people to act compassionately and kindly to their fellow man. Aquinas said that God’s purpose for us is to be good and so by following this, with help from reason to rationalise whether an action fulfills its purpose in nature, we can locate our purpose. Aquinas said this in terms of ‘potentiality’ and ‘actuality’, two things which Aristotle had claimed that all things had. Potentiality is the possibilities of change within an existing thing, e.g. an acorn has the possibility of becoming an oak tree; and actuality is what something actually is. Aquinas said that it was better for something to have more of its potentialities realised (so a fully grown oak tree is better than the acorn or a stunted tree; a healthy man is better than a sick, ignorant or vicious man). This fulfillment is an essence of goodness. In my opinion, this is a fairly weak strength because it unrightfully criticises some people of not being good. If the potential of a man includes being able to run, it would be unjust to say that a disabled individual is not good because they cannot walk. Aristotle is being somewhat elitist here and consequently takes the value from the lives of some people. Anything that does this cannot be considered to be a strength.

Aquinas’s use of the hierarchy of laws and the three norms could be argued as being a strength of NML since it demonstrates that his ideas are well thought-out and so arguably more reliable. The three norms are the three different constituents of NML: the discriminating norm, the binding norm (norma obligans), and the manifesting norm. The Discriminating Norm is human nature itself; the binding/obligatory Norm is the divine authority which imposes man with the obligation to live in accordance with his nature; and the Manifesting Norm is, in effect, reason, which determines the moral quality of actions performed by the discriminating form. Aquinas’s use of the three norms strengthens his theory since it allows for us to understand how our morals reflect our nature, and thereby increases our comprehension of the theory, making it easier to follow in practise. This strength does not stretch to a large extent because it only minorly helps us in understanding the theory, and still does not close all of the gaps in NML.

Critics have argued that there is no such thing as a “common purpose” which invariably leaves Aristotle’s argument in shreds. One such individual who has argued this is the Canadian Professor of Philosophy, Kai Nielsen. Nielsen challenges the primary precepts and maintains that humans do not have shared nature and preservations. He used the example of the Inuits who would kill their elderly so as to achieve Valhalla, an action that is considered immoral in much of the world. In my opinion this weakness is both strong and rational; however, Aquinas might have argued that these Scandinavian people were simply not using their reason correctly.

Existentialists, including Sartre, Nietzsche and Camus, would further see weakness in Aquinas’s fixed purpose since they would argue that people have no ultimate purpose. They would look towards the 1943 words of Sartre: “Life has no meaning a priori… It is up to you to give it a meaning, and value is nothing but the meaning that you choose.” (Being and Nothingness). If Sartre is correct then Aquinas’s argument deteriorates. Whilst I understand that existentialism has become popular in postmodern philosophy, and is something that I agree with to some degree, I do not think that it is able to disprove Aquinas’s argument. There is not enough logical evidence to say that either theory is correct and so I do not think that this theory either weakens or strengthens the validity of natural law.

Infamous atheist, Richard Dawkins, would again find weakness in the common purpose idea. Whilst Dawkins does propose that everybody has a common purpose, he does not think for this to be God-given, or indeed metaphysical at all. In his novel The Selfish Gene, he proposed that the only purpose of man is to pass on our genes to the next generation. Dawkins has said, “We are survival machines – robot vehicles blindly programmed to preserve the selfish molecules known as genes”. Since there is scientific evidence to back Dawkins’s claim, I do feel that it is an important weakness to consider — Aquinas was after all living in a pre-science age and so this is not something that he could have taken account of when developing his theory.

Some Christian critics have argued that Aquinas’s theory does not fit with Christianity because not all people have the same purpose. In 1 Corinthians 7:7 it says, “Each man has his own gift from God”, which implies that not all people are the same and that people have different jobs to do whilst on earth. Indeed, Mother Theresa did not comply with the primary precept of reproduction and remained celibate so as to help the people of the Indian slums. Despite telling people to “become one flesh” (Genesis 1:1), the Bible also teaches that people should remain celibate — “It is good for a man not to touch a woman” (1 Corinthians 7:1), which suggests that people all have different purposes from God. This would render Aquinas’s argument incorrect. Whilst I am not Christian, I feel that this is the strongest weakness that has so far been stated because Aquinas decided to base Natural Law from Christianity. The fact that the two contradicts suggests that his theory was not properly thought out, and could suggest that there are further flaws which he was trying to hide.

Other Christians have further argued that Aquinas’s argument contradicts the Christian principles of Agape. Joseph Fletcher, the founder of situation ethics, has claimed that this “legalistic approach” is wrong since it does not take account of Jesus’s most important teachings. NML says that you can kill somebody in self-defence; however, on the sermon on the mount, Jesus taught for people to “turn the other cheek”. Furthermore, sometimes the most loving thing to do will not follow the guidelines of NML. For example, euthanasia goes against the primary precept of survival, yet surely it is most loving to respect somebody’s request to die? Again, I feel that this argument is a significant weakness of the argument because it further illuminates the differences between NML and Christianity. I believe for the teachings of Jesus to be the most important rules that Christians can follow since they are supposedly from God himself. Therefore, Aquinas has neglected a huge part of Christianity in the theory, which significantly weakens its validity in the eyes of the religious.

A few Christians, such as Karl Barth (20th Century), have even claimed that natural law contradicts The Fall (Genesis 1:2). According to these Christians, we cannot use reason to the extent that Aquinas implied because we are living in a Fallen world where humans are tainted and imperfect as a result of the sins of Adam and Eve. Consequently, reason is not reliable enough to judge our morals, and instead people must use the Bible and revelations of God to help us decide on how we should act. Barth has said that people should recognise and accept the revelation of God as the only source of truth, instead of looking towards human reason. This point does not considerably weaken NML because it is a matter of opinion and interpretation whether or not reason can be used to know God. From my secularist perspective, God is the result of reason and so it is only fitting that we can use our reason to determine what he is and how he wishes for us to act. If anything, Aquinas does not rely on reason enough: people should use their own morals to distinguish between right and wrong.

Other critics, such as G.E. Moore, have used Naturalistic Fallacy to find weakness in NML. In his book Principia Ethica (1903) Moore argued that just because something is, it doesn’t mean that we ought; just because something is in our nature, it doesn’t mean that we have to do it. In Moore’s words, “moral obligation is heavenly”: a natural property does not necessarily lead to moral judgement. Nielsen further developed Naturalistic Fallacy when he said, “These statements can very well be true but no moral or normative conclusions follow from them”.

Another weakness that has been found in NML is the over-simplicity of it. In their book, The Puzzle of Ethics, Vardy and Grosch argue that Aquinas’s theory is un-holistic and only focuses on parts of human nature as opposed to it as a whole. For one, homosexuality is not considered by the primary precept of religion. The lesbian country pop artist Vicky Beeching claimed that her homosexuality was a part of her “God-wired design”, and so surely Aquinas should have taken account of this when developing his theory? Vardy and Grosch further took the example of the sexual organs which, they observed, were used for things other than just sexual relations. The fact that there are gaps in Aquinas’s theory suggest that he could not tailor it to meet the genuine requirements of human nature. People act so differently that I think it would be ludicrous to assign just one fixed nature to all: it simply is not logical. Therefore, this weakness is able to greatly reduce the reliability of NML.

Lastly, we must consider the question: is everything natural good? I think it would ludicrous to conclude that cancer, tsunamis and earthquakes were good. This query greatly weakens Aquinas’s theory because he assumes that everything in the world is good, and everything can achieve goodness by fulfilling its purpose. Stephen Fry used the specific example of eye-burrowing worms, whose whole existence depends upon nesting in the eyes of children and making them blind. In his words, “What sort of God would do this?”. An omnibenevolent God such as the one described in Christianity, and thereby NML, would surely not define goodness in such a way.

Whilst there is strength and logic in Aquinas’s argument, there are also weaknesses that are impossible to overlook. In my view, new scientific advancements and an increasingly secularist society do not allow for NML to any longer be a valid ethical theory, since these new-found weaknesses greatly outweigh the strengths that we have seen. One can never govern their morals on such strict guidelines. As Arthur Schopenhauer observed, “compassion is the basis of morality”.

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A Level Philosophy & Religious Studies

Natural Law ethics

This page: full notes      a* summary notes       c/b summary notes, introduction.

Natural law ethics goes back to Aristotle and his theory of telos; that everything has a nature which directs it towards a particular end goal. Aquinas Christianised this idea, adding that it is the Christian God who set a thing’s telos according to his omnibenevolent plan for the universe.

Christian ethics is most associated with the commands and precepts found in the Bible. Aquinas’ contribution was to argue that telos is also a source of Christian moral principles. Human nature has the God given ability to reason which comes with the ability both to intuitively know primary moral precepts and to apply them to moral situations and actions. Following this ‘natural law’ is thus also an essential element of living a moral life.

Aquinas was influenced by Aristotle’s views that there is a natural end to all beings. Everything has a purpose ( telos ) built into it by its nature. The nature of a thing determines the behaviours that are ‘natural’ to it. An acorn naturally grows into an oak tree, because of its inherent nature. Whereas Aristotle thought the final cause of all things was the prime mover, Aquinas claimed that it was the Christian God. The telos/end/goal of rational beings is the goodness of God, which for us involves glorifying God by following God’s moral law.

Ethics is therefore about using reason to discover the natural law within our nature and conforming our actions to it. God designed the universe to operate according to his divine plan by instilling telos in every being, to direct it towards its good end. Human beings are unique in that we have free will and are thus capable of either following or rebelling against the divine plan. Following God’s natural law results in flourishing (eudaimonia) both for individuals and society. Disobeying what is naturally good for us has the opposite effect.

“the light of reason is placed by nature in every man, to guide him in his acts towards his end”. – Aquinas.

The four tiers of law

The ultimate source of moral goodness and thus law is God’s omnibenevolent nature, which created and ordered the universe with a divine plan, known as the eternal law. However, that is beyond our understanding. We only have access to lesser laws that derive from the eternal law.

The eternal Law . God’s plan, built into the nature of everything which exists, according to his omnibenevolent nature.

The divine law – God’s revelation to humans in the Bible.

The natural law – The moral law God created in human nature, discoverable by human reason.  

Human law – The laws humans make which should be based on the natural and divine law. Human law gains its authority by deriving from the natural and divine law which themselves ultimately derive authority from God’s nature.

“Participation of the eternal law in the rational creature is called the natural law”. – Aquinas

The Primary Precepts & Synderesis

Reason is a power of the human soul. Synderesis is the habit or ability of reason to discover foundational ‘first principles’ of God’s natural moral law.

“the first practical principles … [belong to] a special natural habit … which we call “synderesis” … is said to incite to good, and to murmur at evil, inasmuch as through first principles we proceed to discover, and judge of what we have discovered.” – Aquinas

The first principle synderesis tells us is called the synderesis rule: that the good is what all things seek as their end/goal (telos). This means that human nature has an innate orientation to the good.

“This therefore is the principle of law: that good must be done and evil avoided. ” – Aquinas

Further to this, through synderesis we learn the primary precepts: worship God, live in an orderly society, reproduce, educate, protect and preserve human life and defend the innocent. These primary precepts are the articulation of the orientations in our nature toward the good; the natural inclinations of our God-designed human nature, put into the form of ethical principles by human reason. Simply having reason allows a being to intuitively know these precepts. We are all born with the ability to know them.

Secondary precepts & conscientia

“there belongs to the natural law, first, certain most general precepts, that are known to all; and secondly, certain secondary and more detailed precepts, which are, as it were, conclusions following closely from first principles.” – Aquinas.

Conscientia is the ability of reason to apply he primary precepts to situations or types of actions. The judgement we then acquire is a secondary precept. E.g euthanasia: the primary precepts don’t say anything about euthanasia exactly, but we can use our reason to apply the primary precepts to euthanasia, and realise that it goes against the primary precept of protecting and preserving human life. Arguably it even disrupts the functioning of society too. Therefore, we can conclude the secondary precept that euthanasia is wrong.

Interior & exterior acts

A physical action itself is an exterior act because it occurs outside of our mind. Our intention; what we deliberately choose to do, is the interior act because it occurs inside our mind.

The point of natural law ethics is to figure out what fulfils the telos of our nature and act on that. By doing so, we glorify God. This cannot be done without intending to do it. A good exterior act without a good interior act does not glorify God because it is not done with the intention of fulfilling the God-given goal/telos of our nature.

The act of giving money to charity is an example of a good exterior act, but is only morally good when combined with the right kind of intention, which would be an interior act. If the intention was only to be thought of as a good person, which is not the right kind of intention, then the action is not truly morally good.

Whether telos exists

It is a strength of telos-based ethics that they are empirical, i.e., based on evidence. Aristotle observed that everything has a nature which inclines it towards a certain goal which he and Aquinas called its telos. It is a biological fact that certain behaviours cause an organism to flourish. Telos thus seems an empirically valid concept.

Weakness: Modern science’s rejection of final causation. Francis Bacon, called the father of empiricism, argued that only material and efficient causation were valid scientific concepts, not formal and final causation. The idea of telos is unscientific.

Aquinas and Aristotle claim every being has a unique essence which gives it a particular end/purpose. The issue is, modern science tells us that things are merely atoms moving in fields of force – i.e., material and efficient causation. The idea that entities have an ‘essence’ and thus a telos is unscientific. Physicist Sean Carroll concludes that purpose is not built into the “architecture” of the universe.

All supposed telos of a thing can be reduced to non-teleological concepts regarding its material structure and forces operating on it (material & efficient causation). There is no basis for grounding telos in God like Aquinas did, or as a required explanation of change like Aristotle did. For example, Aristotle would regard the telos of a seed as growing into a tree/bush. However, we now understand that change as resulting from the seed’s material structure which was itself caused by evolution, not anything like telos. Similarly, if there is anything in human nature which orients us towards certain behaviours, it is only because evolution programmed them into us because they happened to enable survival in our environment, not because of telos. So, Modern science can explain the world without telos. Telos is an unnecessary explanation.

Evaluation defending telos:

Polkinghorne, a modern Christian philosopher and physicist, argued that science is limited and cannot answer all questions. It can tell us the what but not the why . Science can tell us what the universe is like, but it cannot tell us why it is this way, nor why it exists. It cannot answer questions about purpose.

Polkinghorne’s argument is successful because science is limited. It cannot rule out something like a prime mover or God which could provide some kind of telos. If purpose existed, science would not be able to discover it. So, science cannot be used to dismiss the existence of purpose.

Evaluation critiquing telos:

Dawkins responds that it’s not valid to simply assume that there actually is a ‘why’. He makes an analogy: ‘what is the color of jealousy?’ That question is assuming that jealousy has a color. Similarly, just because we can ask why we and the universe exist, that doesn’t mean there actually is a purpose for it.

Dawkins’ argument is successful because it makes use of the burden of proof. Those who claim purpose exists have the burden of providing a reason to think it exists. There is no scientific basis for thinking anything other than material and efficient causation exists. Furthermore, scientists may one day actually explain ‘why’ the universe exists, but even if they don’t, that doesn’t justify a non-scientific explanation of purpose such as telos.

Universal human nature & moral dis/agreement

A strength of Natural law is that it is based on universal human nature. The primary precepts are found in the morality of all societies. For example, not killing for no reason and rules about stealing are universal. Valuing reproduction and education are also universal. Moral thinkers from different cultures came up with similar moral prescriptions such as the golden rule; to treat others as you would like to be treated, which can be found in ancient Chinese Philosophy, Hinduism, Judaism and Christianity. This suggests that moral views are influenced by a universal human moral nature. This is good evidence that we are all born with a moral orientation towards the good (telos), which is the foundation of Aquinas’ theory.

Weakness: If all humans were really born with the ability to know the primary precepts, we should expect to find more moral agreement than we do. In fact, we find vastly different moral beliefs. Furthermore, the disagreement is not random but tends to fall along cultural lines. This suggests that it is actually social conditioning which causes our moral views, not a supposed natural law in human nature. This has been argued by psychologists like Freud. Fletcher argues this shows there is not an innate God-given ability of reason to discover a natural law. He concludes that ethics must be based on faith, not reason (Fletcher’s positivism).

Evaluation defending Aquinas:

Aquinas’ claim is merely that human nature contains an orientation towards the good, it doesn’t involve a commitment to humans actually doing more good than evil, nor to incredibly evil acts or cultures occurring infrequently. Aquinas acknowledges that there are many reasons we might fail to do good despite having an orientation towards it. These include original sin, mistakes in conscientia, lacking virtue and a corrupt culture. So, the fact that there is a core set of moral views found cross-culturally shows his theory is correct. 

Evaluation critiquing Aquinas:

Furthermore, cross-cultural morality might result merely from the basic requirement of a society to function. If anyone could kill or steal from anyone else for no reason whenever they wanted, it’s hard to see how a society could exist. That might create an existential pressure which influences the moral thinkers of a society, yielding prescriptions such as the golden rule. Cross-cultural ethics therefore has a practical reality as its basis, not God.

Alternatively, some of the cross-cultural similarities in moral codes might also have resulted from a biologically evolved moral sense rather than one designed by a God, which would mean they are not related to morality or telos at all.

Aquinas’ Natural theology vs Augustine & Karl Barth

A strength of Aquinas’ ethics is its basis in what seems like a realistic and balanced view of human nature as containing both good (reason & telos) but also bad (original sin). Natural law adds an engagement with autonomy to Christian ethics. Sola scriptura protestants like Calvin regard humans as mere passive receptacles for a set of biblical commands. However, Aquinas argues that God presumably gave humans reason so that they may use it.

Natural theology is the view that human reason is capable of knowing God, in this case God’s moral law. Aquinas defends this by first accepting that original sin destroyed original righteousness, meaning perfect rational self-control. However, it did not destroy our reason itself and its accompanying telos inclining us towards the good.

Only rational beings can sin. It makes no sense to say that animals could sin. Original sin made us sinners, but human nature was not reduced to the level of animals. We still have the ability to reason. Furthermore, Aquinas diverges from Augustine, claiming that concupiscence can sometimes be natural to humans, in those cases where our passions are governed by our reason. So, a comprehensive approach to Christian morality must include the use of reason to discover and act on the telos of our nature.

Weakness: Natural theology places a dangerous overreliance on human reason. Karl Barth was influenced by Augustine, who claimed that after the Fall our ability to reason become corrupted by original sin.   Barth’s argument is that is therefore dangerous to rely on human reason to know anything of God, including God’s morality.   “the finite has no capacity for the infinite” – Karl Barth.   Our finite minds cannot grasp God’s infinite being. Whatever humans discover through reason is not divine, so to think it is divine is idolatry – believing earthly things are God. Idolatry can lead to worship of nations and even to movements like the Nazis. After the corruption of the fall, human reason cannot reach God or God’s morality. That is not our telos. Only faith in God’s revelation in the bible is valid.

Final judgement defending Aquinas:   Barth’s argument fails because it does not address Aquinas’ point that our reason is not always corrupted and original sin has not destroyed our natural orientation towards the good. Original sin can at most diminish our inclination towards goodness by creating a habit of acting against it. Sometimes, with God’s grace, our reason can discover knowledge of God’s existence and natural moral law. So, natural moral law and natural theology is valid.

Arguably Aquinas has a balanced and realistic view, that our nature contains both good and bad and it is up to us to choose rightly.

Final judgement critiquing Aquinas: Barth still seems correct that being corrupted by original sin makes our reasoning about God’s existence and morality also corrupted. Even if there is a natural law, we are unable to discover it reliably. The bad in our nature unfortunately means we cannot rely on the good. Whatever a weak and misled conscience discovers is too unreliable.

Humanity’s belief that it has the ability to know anything of God is the same arrogance that led Adam and Eve to disobey God. Humanity believing that it has the power to figure out right and wrong is what led to the arrogant certainty of the Nazis in their own superiority. This arrogance of natural theology is evidence of a human inability to be humble enough to solely rely on faith.

Whether Religious & Natural law ethics is outdated

A strength of Natural law ethics is its availability to everyone because all humans are born with the ability to know and apply the primary precepts. Regarding those who do not belong to Abrahamic religion the Bible says:   “Gentiles, who do not have the law, do by nature what the law requires … God’s law is written in their hearts, for their own conscience and thoughts either accuse them or tell them they are doing right” (Romans 2:14-15).   So, it is possible to follow the natural law even if you are not Christian and/or have no access to the divine law (Bible).

Weakness: Secularists often argue that biblical morality (divine law) is primitive and barbarous, showing it comes from ancient human minds, not God. J. S. Mill calls the Old Testament “Barbarous, and intended only for a barbarous people”. Freud similarly argued that religious morality reflected the “ignorant childhood days of the human race”.   Aquinas’ Natural law ethics is criticised as outdated for the same reason. Medieval society was more chaotic. Strict absolutist ethical principles were needed to prevent society from falling apart. This could explain the primary precepts. For example, it was once useful to restrict sexual behaviour to marriage, because of how economically fatal single motherhood tended to be. It was useful to simply ban all killing, because killing was much more common. It was useful to require having lots of children, because most children died.   The issue clearly is that all of these socio-economic conditions have changed. So, the primary precepts are no longer useful. Society can now afford to gradually relax the inflexibility of its rules without social order being threatened.

Conservative Catholics often argue that natural law is not outdated because it serves an important function without which society flourishes less. They argue that secular liberal western culture is ethically retrograde because of its abandonment of traditional moral principles like the primary precepts. This shows that we really do need to follow God’s natural law in order to flourish.

Marriages are fewer and less successful. Mental illness increases. Rates of etcetc

People are no longer united by an ethic of devoting our lives to something greater than ourselves. Self-interest and materialistic consumerism is all modern society has to offer by way of meaning and purpose.

“[excluding] God, religion and virtue from public life leads ultimately to a truncated vision of man and of society and thus to a ‘reductive vision of the person and his destiny’”. – Pope Benedict XIV.

Here, Benedict XVI references an encyclical called “Caritas in Veritate”, where he argued that while there is indeed religious fanaticism which runs against religious freedom, the promotion of atheism can deprive people of “spiritual and human resources”. The atheist worldview is that we are a “lost atom in a random universe”, in which case we can grow and evolve, but not really develop morally.

“ideological rejection of God and an atheism of indifference, oblivious to the Creator and at risk of becoming equally oblivious to human values, constitute some of the chief obstacles to development today. A humanism which excludes God is an inhuman humanism. Only a humanism open to the Absolute can guide us in the promotion and building of forms of social and civic life — structures, institutions, culture and ethos — without exposing us to the risk of becoming ensnared by the fashions of the moment.” – Pope Benedict XIV.

So, religious and natural law ethics is not outdated but is a vital societal anchor for morality, meaning and purpose.

Natural law ethics is outdated because Aquinas’ theory was actually a reaction to his socio-economic context and since that has changed, Natural law is no longer relevant.

Aquinas thought that he discovered the primary precepts through human reason, as God designed. However, it’s a simpler explanation that Aquinas was simply intuiting what was good for people in his socio-economic condition. The idea that the resulting principles actually came from God was only in his imagination.

The great strength of religion as a form of social organisation is also its greatest weakness. By telling people that its ethical precepts (such as the primary precepts or sanctity of life) come from God it creates a strong motivation to follow them. Yet, because those precepts are imagined to come from an eternal being, they become inflexible and painstakingly difficult to progress. This makes them increasingly outdated.

The double effect

A single action can have two effects, one in accordance with the primary precepts and one in violation of them. Aquinas claims that such actions can be justified the good effect is intended while the bad effect is “beside the intention”. This is because being a good person involves developing the kind of virtuous character which acts with the intention of following God’s natural law.

Aquinas illustrated this with killing in self-defence. There are two effects; the saving of a life and the killing of a life. Killing someone, which clearly violates the primary precept of preserving human life, can be justified so long as it is an effect which is a secondary effect beside the intention of an action whose other effect was intended and was in accordance with the primary precepts.

There are four generally accepted conditions in modern Catholicism for an action to be justified by the double effect:

The intentionality condition. The good effect must be intended and the bad effect must be ‘besides the intention’. Aquinas illustrated the double effect with the example of killing someone in self-defence. So long as you intended to save your own life, then it is morally permissible to kill someone in self-defence. The bad effect is ‘besides the intention’. 

The proportionality condition. The good effect must be at least equivalent to the bad effect. Saving your life is equivalent to ending the life of the attacker. You can’t use more force than is necessary to save your life – there must be proportionality there too. 

The means-end condition. The bad effect and the good effect must both be brought about immediately – at the same time. Otherwise, the person would be using a bad effect as a means to bring about a good effect – which is not permissible.

The double effect only applies to actions which have two effects – one good, one bad – where both effects are brought about immediately.

The nature of the act condition. The action must be either morally good, indifferent or neutral. Acts such as lying or killing an innocent person can never be justifiable. An attacker would not count as an innocent person.

Whether the double effect is unbiblical

A strength of the double effect is that it helps to resolve seemingly disparate biblical themes. Jesus’ commands were not merely about following certain rules, but also about having the right moral intention and virtue (E.g. sermon on the mount). The double effect provides important clarity to Christian ethics by showing the relation between the important moral elements of intention and following the moral law. Good intention is important, not to the degree of justifying pure violations of the law, but when involved in an action that has a good effect it can justify permitting a bad side effect. 

Weakness: the double effect is unbiblical. Some theologians reject the double effect as unbiblical because God’s commandments are presented as absolute and not dependent on someone’s intention. For those theologians, the distinction between intended effects of actions and merely foreseen effects “beside” the intention has no morally relevant significance. It’s not that intention has no relevance in traditional Christian ethics. Most theologians accept that people are not immoral for consequences of their actions which they could not have foreseen which violate God’s commands. For example if you decide to drive your car at the time a drunk person happened to be out and you ran them over, that would not be considered your fault even through it was an effect of your action. However if you could foresee a bad consequence, the fact that it was a secondary effect beside the effect you did intend doesn’t justify it for theologians who take this view.

Evaluation defending Natural law:

This criticism is unsuccessful because Natural law is different to the Bible. The Bible might be inflexible, but that is the divine law. The natural law in our nature is more flexible because it is in the form of very general precepts which require application and the telos of the natural law is glorifying God, which requires that it be our intention to glorify God – thus showing how intention is relevant.

Evaluation criticising Natural law:

This weakness is successful because it shows natural law is trying to add flexibility to inflexible biblical law – e.g. thou shalt not kill. Self-defence, passive euthanasia, even perhaps abortion could be justified by the double effect. The natural and divine law do not cover separate areas but cross-over and therefore conflict on this point of inflexibility. Christians must choose the Bible over Natural law.

Proportionalism & the double effect

A strength of Natural law is its flexibility due to the doctrine of the double effect.

This has been used by modern Catholics to allow, for example, passive euthanasia, abortion to save the life of the mother (though this is complex and controversial in catholicism), and contraception to prevent the spread of AIDS.  

Weakness: B. Hoose’s proportionalism

Hoose developed natural law into what he claimed was a more flexible and coherent form called proportionalism.

Proportionalists agree about following the primary precepts, but argue it is acceptable to go against them if you have a proportionate reason for doing so – i.e., if your action will bring about more good than bad.

The nature of the act condition is invalid because what matters is the proportion of value to disvalue produced by your action. The means-end condition is invalid because what matters is the ultimate value/disvalue proportion.

For proportionalists, the only valid condition in the double effect is proportionality and your intention must be to act with with a proportionate reason.

E.g., Hoose would agree with Fletcher’s example of killing a baby to save the lives of its family. It brings about more value than disvalue, so we have a proportionate reason for breaking the primary precepts in that case.

A resulting strength of proportionalism is it’s far greater flexibility.

Euthanasia, abortion, genetic engineering, anything natural law said to be wrong could in principle be right depending on whether there is a proportionate reason for doing them in a particular situation. There are no intrinsically evil actions. An action can be intrinsically in violation of the principles of natural law, but for proportionalism that doesn’t establish wrongness.

Hoose’s argument for the greater coherence of proportionalism.

Aquinas said it’s bad to go against the primary precepts, but it could overall be justified through the double effect in some cases.

Hoose objects that an overall good act cannot be composed of bad parts (e.g breaking the precepts). Moral evil is moral evil, it could never be a component of moral goodness.

Moral actions are composed of parts like intention and their dis/accordance with the precepts, but those parts cannot be called good or bad in themselves. Only the overall act can be good or bad. So, no part of an action can be morally bad, including what the action itself is and whether it breaks the precepts.

The ‘parts’ of an action are still good/evil, not in a moral sense but in a factual or physical sense, regarding their enabling or disabling of flourishing (eudaimonia).

Factual enabling of flourishing ‘Ontic goods’. These are physical or factual goods, such as health, life and knowledge (these all enable flourishing and are thus ontic goods). ‘Ontic evils’ are the deprivation of such goods. Whatever in an action enables flourishing is an ‘ontic good’, whatever disables it is an ‘ontic evil’.

To decide whether the action is overall morally good however, we need to judge whether the action produced more ontic good compared to ontic evil. If it does, we have a proportionate reason for doing it, even if it goes against the primary precepts.

Aquinas would say killing the baby in Fletcher’s example is just morally evil – but Hoose is saying no, it’s only an ontic evil – which must be measured against the ontic good caused by the action (saving the whole family). If there’s a proportionate reason for doing it, then it is a morally good act to kill the baby.

“An act is either morally right or morally wrong. It cannot be both. If we talk of morally evil (meaning morally wrong) elements in an act that is morally right and is performed by a morally good person, we confuse the whole issue.” – B. Hoose.

Evaluation defending Natural law

John Paul II defends Natural law ethics, arguing that proportionalism is not a valid development because it misunderstands the objective/intention required for ethical action.

“Acting is morally good when the choices of freedom are in conformity with man’s true good and thus express the voluntary ordering of the person towards his ultimate end” – John Paul II

Under natural law, we intentionally act on the moral law discovered in our nature by reason (primary precepts). God designed us to intuitively know these moral laws – so our telos/purpose is to follow them. The goal of natural law is to follow the primary precepts. John Paul II is correct that Proportionalism misdirects our goal/intention towards the balance of ontic goods over evils produced by our action. God has designed us to follow the primary precepts – so that is our ethical purpose. Hoose misdirects us away from that.

“The morality of the human act depends primarily and fundamentally on the “object” rationally chosen by the deliberate will,  as is borne out by the insightful analysis, still valid today, made by Saint Thomas.” – John Paul II.

Evaluation criticising Natural law

Defenders of traditional Natural law like John Paul II assume that our ultimate end is simply to follow the precepts of natural law in a ridged deontological way.

Calculating the ontic goods over evils of our actions could actually be part of our ultimate end.

Even Aquinas accepted that his list of primary precepts was not final but could be added to. The project of understanding the telos of our nature is ongoing. Developments like those of proportionalism cannot be dismissed simply because they differ with the traditional approach.

Whether proportionalism is better suited to our fallen world

A strength of the double effect is that it is pragmatic.

It fits with the reality of moral decision making. Sometimes actions can have two effects and a method is required that makes sense of how to judge them. Aquinas’ self-defence illustration is intuitive.

Proportionalism has the strength of being better suited to moral decision making in our imperfect world.

The Fall destabilised creation, including the moral order. God designed the natural law to perfectly fit following it with human flourishing. In a post-lapsarian world, the presence of ontic evil around acts that follow the natural law sometimes mean they prevent flourishing. Taking a deontological approach to natural law doesn’t make sense.

Ontic goods and evils are defined in relation to whatever enables or disables flourishing. Flourishing is part of our telos. So arguably following proportionalism would successfully orientate us towards our telos.

Weakness: John Paul II argues that although consequences matter, proportionalism takes that too far when it claims that there are no intrinsically evil actions.

It can never enable achievement of our telos to do such acts. Consequences certainly matter, but they can never make an intrinsically evil act acceptable. Such acts disorder us; they can never rightly order us towards our end, even if done with the intention of bringing about a greater balance of ontic goods over ontic evils. It is better to avoid them and bear the consequences, even if it means suffering and dying. JP2 reminds us that early Christians were prepared to be martyred for their faith.

Only intentionally following of the natural law within our nature aims us at our telos of glorifying God. Consequences matter to some degree, but not to the point of justifying intrinsically evil acts.

“Christian ethics, which pays particular attention to the moral object, does not refuse to consider the inner ‘teleology’ of acting, inasmuch as it is directed to promoting the true good of the person; but it recognizes that it is really pursued only when the essential elements of human nature are respected. The human act, good according to its object, is also capable of being ordered to its ultimate end … If acts are intrinsically evil, a good intention or particular circumstances can diminish their evil, but they cannot remove it … an intention is good when it has as its aim the true good of the person in view of his ultimate end. But acts whose object is ‘not capable of being ordered’ to God and ‘unworthy of the human person’ are always and in every case in conflict with that good.” – John Paul II.

Evaluation defending proportionalism

John Paul II’s reference to the Christian Martyrs is a self-serving illustration. It’s easy for most people to make sense of sacrificing oneself rather than break the natural law. However, what about cases where if we don’t break the natural law, we will be letting others suffer and die? Euthanasia is a clear example.

Evaluation criticising proportionalism

This is the ultimate argument against all forms of religious consequentialism. They misunderstand the purpose of morality. We are not here on earth to achieve happiness, but to follow God’s moral law. If suffering results from following God’s law due to living in a fallen world, that doesn’t invalidate God’s law. Aristotle and Aquinas both explained that flourishing is not happiness, but cultivating the virtues which rationally order us in our actions towards our end. As JP2’s example of the martyrs shows, if it is virtuous to suffer and die then that is what we should do, technically that is flourishing. Cardinal Newman expressed this sentiment in a poetic if stark manner:

“The Catholic Church holds it better for the sun and moon to drop from heaven, for the earth to fail, and for all the many millions on it to die of starvation in extremest agony … than that one soul, I will not say, should be lost, but should commit one single venial sin, should tell one willful untruth, or should steal one poor farthing without excuse.” – John Henry Newman.

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Embracing Scylla and Charybdis

Remarkably, modern progressives have found a way to be moral relativists and intolerant absolutists at the same time.

On October 7, 2023, thousands of Jews were raped, tortured, kidnapped, and killed by terrorists. For many, what was most striking about the attacks was not that Hamas hated Jews, but the reaction in the West. Antisemitic attacks and harassment have reached levels unseen in decades, and many Westerners seem either willfully ignorant or tacitly supportive of Israel’s enemies.

Many intellectuals who do important work highlighting sexual assault and the burden of coming forward as a victim are at the same time downplaying or outright denying the mass rape of Jewish women on October 7. “Believe all women”—except when they’re Jews. Further, the same people who were rightly horrified by chants of “Jews will not replace us” in Charlottesville are perfectly happy to say that we “don’t get to tell Palestinians how to resist” occupation. 

The double standard is obvious, but its relevance is worth exploring. Why do otherwise smart, sophisticated people talk out of one corner of their mouths about the moral necessity of human rights but then pivot back to staunch moral and cultural relativism in other circumstances? The answer lies in the denial of moral absolutes and its ultimate expression in postmodernism.

Postmodernism is an intellectual movement that sprang up in the twentieth century, drawing on philosophers such as Friedrich Nietzsche and Martin Heidegger, and French thinkers such as Gilles Deleuze, Jacques Derrida, and Michel Foucault. It’s often suggested that all of philosophy is a footnote to Plato, as a credit of his influence on what came after him. Something similar could be said about Nietzsche and postmodernism. It’s generally understood that one of philosophical postmodernism’s key innovations was the denial of moral absolutes. These thinkers wanted to move beyond good and evil, toward a world where a few great philosophers could give themselves new ends to aspire to, without regard to conventional notions of morality—indeed, one of Nietzsche’s seminal works is literally titled “Beyond Good and Evil.” Necessarily, the denial of moral truths called the nature of truth itself into question. Foucault followed a similar line, suggesting that there was no objective truth at all. So did the twentieth-century historicists who insisted that all values were contextual. So did American legal realists and social scientists who, high on the scientific revolution, found moral truths to be unprovable.

Somewhere down the line though, relativism seemingly receded. Over the past few decades, the relativist line has slowly been supplanted in academia by uncompromising moral absolutism from the left that aimed at combating various injustices—particularly those faced by certain identity groups. Indeed, as the threat of censorship has expanded on college campuses, many observers have explicitly noted that the problem with progressive academia is not relativism but a new kind of absolutism. Given this about-face, one would expect some explicit renunciation of relativism, or the development of some moral schema that would justify and ground liberal institutions and moral judgments against racism, sexism, and homophobia. Neither of those things happened.

As relativist academics witnessed the horrors of World War II and the barbarity of the Nazi regime, many began to try and find some grounding for American political institutions and norms. After all, their earlier rejection of natural law and embrace of philosophical pragmatism made it hard to justify liberal democracy on anything other than pluralistic and utilitarian grounds. Relativism pointed towards democratic pluralism and multicultural tolerance. The legal scholar Edward Purcell, writing in the early 1970s wrote, “Considered as a prescriptive political logic, for example, [the relativist theory] strongly pointed toward the need for the widespread sharing of effective political power, decentralization of economic decision-making, and a fundamental commitment to meaningful and broad individual freedoms.” Accordingly, American society was to be judged on those terms. But justification had to occur on the grounds of “what works”, which, Purcell correctly noted, “confirmed one of the most common criticisms of philosophical pragmatism, on which the relativist theory was based. The test of ‘what works’ was essentially delusive and circular, for practical efficacy was not an objective criterion.”

Legal process theorists had similar trouble. In the aftermath of the Second World War, with many legal realists seeking some grounding for American liberal democracy, legal process theory emerged. Legal process theory, an outgrowth of legal realism, maintained that legitimacy was found in the process by which laws are passed. But the same questions loomed: how could one judge the processes themselves if there was no objective standard to appeal to?

Critical theory deals with a similar problem. Richard Delgado, one of the central figures in the development of critical race theory, explicitly denies the possibility of objective truth. Critical theory more broadly relies on relativism. Critical race theory rightly tries to identify and fight racism, but can it explain why racism is intrinsically wrong?

Similarly, Gayatri Chakravorty Spivak, a prominent Indian literary scholar, was dedicated to dismantling power structures that marginalized oppressed groups like her own. But at the same time, as a postmodernist, she was committed to the belief that group identity was an artificial social construct. Out of this tension arose “strategic essentialism”—the idea that even though essentialist categories like racial and sexual identity had no objective content to them, they were useful in fighting against oppression. In line with other postmodern relativists, Spivak maintained, “My search is not a search for coherence.”

In this way, it doesn’t make sense to term the woke defenders of Hamas either relativists or absolutists. They’re both. They don’t care about formal reasoning. And, like Nietzsche, they certainly don’t care about objective truth.

Even many of the left’s most thoughtful moralists struggled with how to justify some form of moralism. Ronald Dworkin is one of the most famous and astute liberal thinkers of the twentieth century, but even he struggled with it. Dworkin rejected moral relativism, but struggled to articulate a sound justification for moral judgments. A Guardian article about him asked, “But if objective moral values aren’t in the world, where are they hiding? In the book, Dworkin finally tells us when we are justified in thinking any value judgment is true, namely: ‘When we are justified in thinking that our arguments for holding it true are adequate arguments.’ Isn’t that circular? Yes, but Dworkin argues it’s good circular, not bad circular.”

Good things are good, yes. Another liberal luminary, John Rawls, tried to ground moral theory in self-interest and a form of public reason that rejected absolutist assumptions and comprehensive doctrines that not everyone agrees on. What this amounts to is the same pluralistic justification that ultimately fails to ground moral judgments. It may seem intriguing at the start of A Theory of Justice , but by the end of The Law of Peoples , it seems clear that he similarly struggled to ground moral judgments. And so the same problem persists.

Moral judgments against bigotry are the essence of left-wing politics, but the left never explicitly repudiated relativism. It’s impossible to square the circle of relativism and absolutism in a principled way. So why aren’t more on the left paralyzed by this? Likely, most everyday progressives don’t embrace moral relativism, but many of the most prominent intellectual voices did, and they were the ones pushing hardest for the moralist turn in leftist politics. Yet, as the world saw on October 7, they will gladly pivot back to relativism when it suits them. Why aren’t they paralyzed by this?

Imagine you’re talking to someone who first tells you that they don’t think there’s anything wrong with lying to get your way, and then adds that they promise they aren’t lying. You probably wouldn’t believe them. Accordingly, the academic left never abandoned its relativism. So we can assume that they have the same laissez-faire attitude toward truth that postmodernists more broadly have.

Nietzsche writes:

Are these coming philosophers new friends of “truth”? … It must offend their pride, also their taste, if their truth is supposed to be a truth for every man—which has so far been the secret wish and hidden meaning of all dogmatic aspirations. “My judgment is my judgment”: no one else is easily entitled to it—that is what such a philosopher of the future may say of himself.

Here, we find that even if there is a “truth,” the new philosophers of the postmodern era will be unconcerned with it. They don’t value truth itself.

The legal scholar, Steven D. Smith, attempted to explain a similar attitude among the ancient pagans. Smith suggested that postmodern leftism has strong elements of the pagan mindset, as the pagans were generally less concerned with the concept of belief in the gods than they were with outward displays of obedience and the performance of rituals. Metaphysical truth didn’t have the same importance in Paganism as it did in Christianity—which relied heavily on the Greek rationalist tradition that Nietzsche scorned. This allowed intellectual pagans to either allow the myths to be judged under a more relaxed epistemic standard than the physical world itself or reject them while continuing to affirm the civic religion of the city that was based on them. They could affirm that the gods were real in public, without getting too hung up on the myths’ literal truth. “My judgment is my judgment” they might say. Or, considered today, one could maintain that objective morality is hopelessly elusive in a metaphysical sense, but affirm it for the sake of a political program.

If postmodern leftism assumes that all values are culturally contingent, then we can say whatever we want about a given set of values—in that case, I can say something’s right for me and us, without it being correct in some deeper metaphysical way. In that case, you don’t need to do your homework in any meaningful way, or show your work. You can will the belief into existence, in a Nietzschean sense. Thus, it is no wonder that leftist intellectuals exhibit such rabid zeal when discussing things like racism, sexism, and transphobia. In an argument, it’s often the case that the one who’s secure in the truth of their position will stay calm, while his insecure interlocutor will begin to raise his voice, hoping that his passion and anger can substitute for his argument. And if you know, in some deep sense, that the only thing you have on your side is the volume and ferocity of your voice, you’re less likely to let the argument stand on its own terms. Absolutism becomes a performance—a performance meant to disguise a deeper relativism that would invalidate your entire argument.

In this way, it doesn’t make sense to term the woke defenders of Hamas either relativists or absolutists. They’re both. They don’t care about formal reasoning. And, like Nietzsche, they certainly don’t care about objective truth. In Homer’s Odyssey, Odysseus must choose to sail close to one of two opposite monsters, Scylla and Charybdis. Leo Strauss wrote of how Aristotle and Plato avoided the “Scylla of ‘absolutism’ and the Charybdis of ‘relativism’” by charting a third way. Postmodernists somehow manage to escape neither, but in fact, embrace both.

Without objective truth and moral judgments, the only thing to rest your philosophy on is power. Indeed, this is what critical theory has done. Critical theory, while denying the possibility of objective moral truths, focuses on power dynamics. That is a “tell.” The entire philosophy focuses on elevating the “oppressed” in relation to the “oppressor.” If we’re to follow this argument to its logical conclusion, there’s no limit to the kinds of resistance the oppressed should use against their oppressor. Power dynamics are necessary to interrogate, but without an objective moral standard to judge against, it results in an amoral war of all against all—where the only limit on your action is your self-interest. Simply, I can do what I want to become as powerful as I can. That is how one gets from moral relativism to justifying rape and pillaging by Hamas.

Postmodern political leftism is not philosophy so much as it is performance art. Even though its progenitors were chiefly concerned with obscurantist religious absolutism, and quick to point out the inconsistencies and misdeeds of the powerful, postmodern relativism is no less obscurantist. Foucault maintained that even if the powerless were to come to power and overthrow their oppressors, they’d likely reconstitute that oppression in a new form. Accordingly, as we saw on October 7, sexual violence and bigotry are cardinal sins, except when they’re not.

Postmodern relativists might say one thing in private about the unknowability of truth, but to say it in public would be to destroy the public foundation for their entire political program. And so the only option is to lie, which they are quite happy to do. For what use is truth to them? Nietzsche writes, “For all the value that the true, the truthful, the selfless may deserve, it would still be possible that a higher and more fundamental value for life might have to be ascribed to deception, selfishness, and lust.” Deception, selfishness, lust, and, ultimately, power.

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Structural analysis of types of Muslim religious consciousness

Axmed Abdurazakov 1 , Olga Garnaya 2 * , Michael Lebedev 2 and Emzari Yunusov 2

1 Federal State Institution of Additional Professional Education Interregional Training Center of Federal Penitentiary Service of Russia for Moscow Region, Novye Doma settlement, Elektrostal, Moscow Region, 142470, Russian Federation 2 Federal State Institution Research Institute of Federal Penitentiary Service of Russia, Narvskaya str., 15 a, building 1, Moscow, 125130, Russian Federation

* Corresponding author: [email protected]

A separate theoretical and legal study should be devoted to essential features of legal consciousness of Muslims, which will be based on the study of perception of positive law through the prism of Islamic religious and legal doctrine. It is advisable to start the basis of this study with definition of its main structural element - the types of Muslim legal consciousness. Consideration of this issue from the standpoint of natural law will expand the traditional boundaries of theory of modern legal consciousness, open up additional applied and scientific horizons and, using the example of Islam, allow us to consider peculiarities of religious influence on legal consciousness of various categories of citizens. Knowledge of foundations of Muslim law, procedure for formation of moral and social religious attitudes, interpretation of religious canons and dogmas contribute to a better understanding of many processes taking place within Russian Muslim community and can form the basis of mechanism for formation of moral legal consciousness, which must be opposed, in its turn, to radical and criminalized forms of religious consciousness.

© The Authors, published by EDP Sciences, 2021

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‘Total Disgrace’: Anger, Frustration as Mass Heating Failures Across Russia Leave Thousands in the Cold

P ODOLSK, Moscow region – Residents throughout Russia affected by unprecedented winter heating outages in recent days have expressed their frustration and urged local authorities to restore heating in their homes.

In Podolsk, a town some 30 kilometers south of the capital Moscow, at least 149,000 residents — nearly half of its population — were left without heating when a heating main burst at a nearby private ammunition plant.

“It’s a total disgrace. There is no heating and no hot water. We have to sleep in sleeping bags,” Yuri, a local resident, told The Moscow Times.

“I have no words to describe how bad the situation is," said Yuri, who declined to provide his surname. "We have had no heating for almost six days."

Heating issues have affected residents in the Moscow region, where temperatures have plunged to as low as minus 20 degrees Celsius in the past week, as well as people in the Far East Primorye region , the cities of Moscow and St. Petersburg , Penza , the southern Voronezh and Volgograd regions and more.

In the Tver region, a group of residents filmed an appeal to President Vladimir Putin, saying that they “are freezing from the cold” in the village of Novozavidovsky.

“We're literally being killed by the cold,” a woman in the video said, adding that they have been sending requests to local authorities since September after their houses were connected to a boiler room whose power was reportedly insufficient.

“This is some kind of torture and extermination of the population 100 kilometers from Moscow,” she added.

Residents of the Moscow region town of Elektrostal lit a fire in the street to draw the authorities’ attention to the heating problem.

“It’s impossible to stay in our houses. We're freezing!” a group of women in the video said.

Suffering from subzero temperatures, residents are placing the blame on local authorities and utility services for failing to take necessary precautions and not taking action to resolve the situation.

“We are sending complaints everywhere but no one listens to us. We have portable heaters working in every room, but the temperature inside is still 10 degrees Celsius,” Yelena from Podolsk said.

“There is a clinic and a hospital, as well as kindergartens, where there is no heating. And we have no answers, no assistance, no explanation,” Yelena added.

Podolsk authorities opened temporary heating centers and declared a state of emergency.

Local authorities linked the heating problems to the fact that the town is heated by a boiler plant owned by the Klimovsk Specialized Ammunition Plant, a private ammunition factory and one of the largest weapon cartridge production enterprises in the country.

“The facility is under tight security conditions, which limits our ability to oversee winter preparations,” the Moscow region’s Vice Governor Yevgeny Khromushin said last week. “We were unaware of the problem for nearly a day.”

An unidentified Moscow region official and two senior executives at the plant were arrested on suspicion of providing unsafe services, Russia’s Investigative Committee, which probes major crimes, said in a statement Tuesday.

Investigators said that Podolsk’s deputy mayor was accused of misusing authority by issuing a readiness certificate for the boiler house at the plant.

In the neighboring Tver region, the authorities opened a criminal case over the laundering of over 84 million rubles ($938,993) in heating bills paid by residents, the Astra Telegram channel reported this week, citing unidentified sources. According to investigators, the heads of the local water intake and boiler house misappropriated the heating payments for personal use.

Reacting to the heating failures, Putin on Tuesday asked Emergency Situations Minister Alexander Kurenkov to provide heat and electricity to the affected residents.

The outages appear to be the latest effect of several decades of crumbling infrastructure in Russia which have been linked to endemic corruption and mismanagement.

The overall decay of Russia's municipal infrastructure surpassed 70% in 2022, the pro-Kremlin newspaper Izvestia reported .

According to Sergei Pakhomov, head of the State Duma’s Construction, Housing and Utilities Committee, water pipes that were 90 years old or even older were still in use as recently as two years ago in some cases.

Housing, utilities and communal services are a common source of problems for Russians during the winter.

In St. Petersburg, residents regularly complain about extensive ice coverage on city streets and sidewalks, with many people ending up in the hospital over the years due to slipping and falling accidents.

In the Siberian republic of Khakassia, two villages were left without electricity last month due to apparent issues with outdated communication systems.

In the winter of 2020, five people in the Perm region were killed after a pipe burst.

When asked about the latest heating outages, Kremlin spokesman Dmitry Peskov acknowledged the problems and linked them to poor municipal infrastructure, saying that people “had to endure a lot of inconvenience in the cold and without electricity.”

"Despite all the titanic efforts to update all housing and communal services systems, there's still a certain part that remains considerably deteriorated. These programs will continue, but it is impossible to update all pipes and all housing and communal services systems in 10-15 years,” Peskov said.

As for now, residents affected by heating issues appear to lack optimism that the problems will be solved efficiently.

"It's been a week since we've had heating, and the temperature in my apartment is around 11 degrees Celsius,” Podolsk resident Lidiya told The Moscow Times.

“Unfortunately, no one knows when it will be repaired,” she added.