TY - JOUR
AU1 - Allan, T R, S
AB - Abstract: The article explores Dworkin’s suggestion that law and morality comprise a unified normative domain, considering similar suggestions by Greenberg and Hershovitz. It defends an interpretative approach to law, akin to Dworkin’s, against the view that the law’s content is determined by direct appeal to political morality at large, subject only to the effect of action by law-making institutions. Legal practice and political principle are in important ways interdependent, each capable of illuminating and clarifying the other. As an approximation of justice, grounded in practice, the law consists fundamentally in the moral principles that, in the final analysis, constitute the political community. The law’s content is an interpretative question, dependent on a grasp of practice that gives determinate shape to abstract concepts of equality and justice. I. Introduction The nature of the relationship between law and morality remains a matter of lively debate in legal theory. Ronald Dworkin’s suggestion that law and morality should be understood as parts of a unified normative domain, making law in effect a department of morality, makes explicit what is arguably implicit in his previous work.1 The idea is implicit in Dworkin’s emphasis on the role of general principles in legal reasoning, even if his ambivalence over the moral status of such principles tends to obscure it.2 However, Dworkin’s interpretative approach, which ties legal judgment very closely to legal practice, initially seems inimical to the integration of law and morality. To the extent that the pursuit of justice through law is contingent on the nature and qualities of local jurisdictional practice, there is plainly no guarantee of success. The law may, even on its best construction, be too wicked to obey in good conscience. Rejecting an avowedly hermeneutic or interpretative approach, Mark Greenberg’s “moral impact” theory of law seeks to disentangle the law from the morally dubious elements of legal practice.3 It defines law as the moral consequences of the actions of legal institutions. The law’s content is whatever morality dictates in the light of the relevant institutional action, which will alter the circumstances in which we decide what political morality requires. While in ordinary circumstances we may think it right to cooperate with political authority, identifying relevant implications for our moral rights and duties, a formally authoritative enactment may sometimes need to be resisted on grounds of justice.4 Greenberg and Dworkin alike reject what Greenberg calls the “standard picture,” implicit in legal positivism.5 According to the standard picture, the law consists primarily in norms that have been authoritatively pronounced: the norms obtain simply in virtue of their pronouncement by an authoritative source. The law, on that view, depends on the meaning of legal texts, typically of statutes.6 For Dworkin, by contrast, the content of such texts is merely one aspect of the practices that the law, correctly interpreted, must justify. On Greenberg’s view, the law depends on the moral consequences of the various actions of legal institutions: people’s moral (and hence) legal obligations are altered by such actions. On both alternatives to the standard picture, moreover, what Greenberg calls “atomism” is false: there are no criteria of validity applicable to individual norms as opposed to the law as a whole. For both Dworkin and Greenberg, the law must be determined holistically. In Greenberg’s words, “the content of the law is prior in the order of explanation to individual legal norms.”7 Greenberg is right to resist the idea that an apparently wicked enactment, the product of its authors’ malice, should be capable of giving rise to genuine law. There is arguably a tension between Dworkin’s view that legal interpretation involves moral judgment, on the one hand, and his willingness to concede that the law might be gravely unjust, on the other. An interpretative theory, applicable to a legal order capable of invoking allegiance, must arguably be moral through and through—withholding recognition from what are plainly legislative abuses. But Greenberg’s response is an over-reaction. In repudiating an interpretative approach altogether, he introduces an unwelcome division between legal practice, treated largely as a matter of social fact, and moral judgment—judgment invoking standards that owe nothing to legal and political tradition, unique to the practice itself. In that respect, at least, his theory appears to resemble legal positivism, based on the “standard picture” that he rejects. In rejecting an interpretative approach, which to some degree fuses political morality and legal tradition, Greenberg moves closer to Scott Hershovitz’s explicitly “eliminativist” approach.8 It is eliminativist in repudiating any distinctively legal domain of normativity. Legal obligations are simply moral obligations, which may sometimes clash with other moral obligations. Hershovitz distinguishes between individual laws, which may be too evil or immoral to obey, and the law conceived as a matter of obligation: “the content of laws (as opposed to the content of the law) is a matter of social fact.”9 According to Hershovitz, this approach takes the best of both positivism and anti-positivism. He apparently endorses the Austinian slogan that the existence of law is one thing, its moral merit or demerit another.10 That distinction between the laws, conceived as social fact, and the law, understood as the resulting moral obligations, allegedly enables us to distinguish clearly “between the way our legal practices are and the way that they ought to be.”11 While Greenberg denies that a legal norm corresponds straightforwardly to the linguistic content of an authoritative pronouncement, he nevertheless treats the law as a moral response to such a pronouncement. Insofar, then, as Greenberg’s theory is truly different from Dworkin’s, the difference appears to lie in the assumption that institutional action may have a determinate content in the absence of moral judgment. A certain “atomism” remains because the content—perhaps obnoxious content—of any specific rule or ruling is identifiable as a matter of social fact. There is a determinate political content, which may or may not correspond to any legal or moral content. A wicked statute, correctly construed, may leave the law unaffected because it cannot support a moral duty of obedience. Moreover, the relevant moral judgments themselves owe nothing to the law itself, considered as a coherent, collaborative effort to approximate justice. In determining the law, we stand morally aloof—giving our practices, considered discretely, such credit as seems appropriate from an external, universalist standpoint.12 Dworkin’s attempt to link questions about legal content and political obligation recognizes, by contrast, that considerations of legitimacy are pertinent to interpretative truth. Our convictions about what it would be legitimate for Parliament to enact, for example, play an important role in helping us to decide what, in any particular instance, has actually been enacted. We draw on our moral convictions about the proper role of the legislature in our judgments about the correct interpretation of its statutes. Those convictions are themselves filtered through principles and presumptions supported by existing law, intended to promote systemic coherence. There is an analogy with the common law, where decisions are interpreted as contributions to an evolving scheme of regulation. The ratio of a judicial decision is constructed in a manner that makes sense of that decision as part of the wider network of legal principle. Moral judgment is involved because the network of principle is conceived as a system of justice. But justice is secured, in detail, by the discipline of internal coherence: it is not a quality external to legal practice viewed merely as social fact.13 Although Dworkin appears to concede that the law might diverge from justice so far as to justify disobedience, that view may be challenged as being inconsistent with a thoroughgoing interpretative stance. If the law is, in practice, sufficiently respectful of persons to attain legitimacy, generating a general obligation of fidelity, grave breaches of justice should be accounted departures from legality—illegitimate acts or threats of coercion that violate legal and constitutional principle. The deliberations of the “protestant” interpreter, as regards the law’s requirements, should be guided by the moral principles that distinguish legitimate from illegitimate governments.14 An allegedly wicked law, accordingly, is either no law at all or must be interpreted (whatever its authors’ intentions) in accordance with general principles of law and justice.15 It is true, of course, that from a purely external viewpoint, “any particular law, or legal system, might be wholly devoid of moral merit, or worse than that, morally repugnant.”16 From an internal, interpretative viewpoint, however—the perspective from which we determine our legal obligations—we could not (morally should not) accept any such conclusions. If our legal practices are not what they ought to be, it is only because they fall short, in certain respects, of the ideals internal to them on the best understanding. Such practices invite reform in order better to embody the moral vision that provides their rationale and governs their pursuit.17 But a wicked law is, on an interpretative view, a contradiction in terms: truly grievous injustice is excluded by the first principles of any plausible theory of the law as a whole, meeting the basic demands of integrity.18 As a legitimate scheme of governance, duly respectful of the equal dignity of persons, the law serves as the measure of justice for the political community. As members of that community, beneficiaries with others of the equal status it confers, we are morally obligated to obey its laws. Our moral disagreements take place, for the most part, within the deliberative processes that the law provides or protects, defending rival interpretations of the arrangements we jointly honor. Common law reasoning is exemplary. Certain judicial precedents, illustrating basic principles, form cornerstones of a theory of justice to be constructed in collaboration. Nothing is placed beyond challenge—all aspects of legal and constitutional doctrine have only provisional authority—but the challenge is made by means of respectful dialogue, drawing on principles and paradigms likely to elicit general recognition and support.19 As Hershovitz notes, Dworkin had rejected a “two-system” picture of law and morality early in his career when criticizing Hart’s social rule theory.20 Dworkin insisted that a social practice helps to justify a normative rule, which may differ from the rule (or rules) asserted by individuals within the practice.21 Hershovitz argues accordingly that legal rights are not constituted by our legal practices, but rather justified by them. Even if legal rights are genuine moral rights, however, we may still think that they are at least partly constituted by our legal practice, which is usually our best guide to what political morality, in context, demands. We cannot eliminate law as a special site of normative contestation. Legality qualifies justice, as it might otherwise be understood, by rooting it in practice—the practice of the particular community in which justice is sought as a collaborative endeavor, grounded in a shared tradition. Legal obligations are the moral obligations arising from that collaboration, uniting members of the community in their search for justice inter se.22 A public conception of justice is substituted for a myriad private notions, too detached from practice to have any bearing on its proper demands in particular instances. Private conscience is normally satisfied by allegiance to the public law.23 II. Law, Morality, and Political Obligation Greenberg argues that a legal system is supposed to operate in a manner that ensures that legal obligations are morally binding; it is defective insofar as it does not do so. The “binding hypothesis” is that for every legal obligation there should be a moral obligation with the same content.24 These moral obligations include duties to perform actions required to satisfy reasons of democracy or fairness or the need for coordination of conduct, not merely duties that duplicate pre-existing moral obligations (before any action by legal institutions). If, as Joseph Raz contends, it is an essential feature of law that it claims legitimate authority, there is something defective about law if it does not have what, by its nature, it must claim to have. In any case, even a band of thugs could seize power and claim legitimate authority; but they clearly would not have such authority. Law is plainly different from brute power.25 Moreover, the law does not treat its obligations as if they were subordinate to morality. Once established, legal obligations are enforced regardless of moral or other reasons; and this is “to treat them as all-things-considered binding.”26 On what Greenberg calls the “standard picture,” however, the law is condemned to be defective. Because law is supposed, on that picture, to consist of authoritative pronouncements by legal institutions, it is hard to see how (so called) legal obligations would be morally binding unless we postulate a general moral obligation to obey the law. But there cannot be a general obligation to obey the law if the law may have any content, being dependent on officially authoritative pronouncement. Familiar attempts to locate a basis for such a general obligation in consent or fair play are not persuasive.27 If, then, we adhere to the standard picture, we cannot explain how law is supposed to be morally binding as our practice apparently assumes. According to Greenberg’s theory, the law consists in the moral consequences of the actions of legal institutions—their effect on the “moral profile.”28 There are two different ways in which bindingness could be achieved: “Either morality could track the content of the law, or the content of the law could track morality.”29 Whereas on the standard picture morality would somehow have to track the law, in Greenberg’s view the law tracks morality. The law’s content is altered by changing the moral profile, which is sensitive to changes in the relevant circumstances. In that way, legal systems “can generate morally binding obligations despite the fact that there is no general moral obligation to obey directives from legal authorities.”30 While superficially suggesting an attractive integration of law and morality, Greenberg’s view actually presupposes a questionable dualism. It is true that on Greenberg’s account moral judgment is required to determine the law’s requirements. The actions of legal institutions affect what we judge to be morally appropriate conduct. But because those actions are independently defined, being treated as matters of social or empirical fact, principle and practice are forced apart. We are robbed of moral resources provided by legal tradition, which mediates between rulers and ruled. Governmental persecution of a minority group would, Greenberg explains, generate obligations to rescue such people and disobey the relevant official directives. In Greenberg’s view, however, these moral obligations cannot be legal obligations because they do not arise in the “legally proper way.”31 A legal system is supposed to change the moral situation for the better. A method that depends on creating reasons “to undo what the institution has wrought” is, therefore, a defective way of generating obligations.32 When, however, institutional action generates obligations “to remedy, oppose, or otherwise mitigate the consequences” of such action, we should not too readily assume, with Greenberg, that such obligations cannot be legal ones. When it is part of our legal and constitutional culture that institutional action must be intended to serve the interests of justice, on some plausible account of that ideal, our duties of resistance to iniquity arise in part from our responsibility to protect that understanding. We must act as conscientious citizens in defense of the rule of law. If people mistakenly treat the purported measures as binding law, perhaps sympathizing with its wicked motivation, their conduct must clearly be opposed and condemned. But it should arguably be opposed and condemned in the name of law itself—the law conceived as a scheme of justice, intended (as Greenberg says) to change the moral situation for the better. A court should deny the legality of repressive measures, if they are challenged, or at least adopt an interpretation of them that minimizes injury to the interests of their victims. The citizen should ideally take a similar stance, invoking constitutional principle.33 Institutional action, regarded as social fact, has no automatic implications for the content of the law: it awaits interpretation, guided by general principle. As Greenberg himself observes, we must not confuse an officially enacted text with the legal norms it serves to introduce or affirm.34 A vindictive measure, masquerading as law, could make no discernible improvement to existing arrangements for the good governance of the community. From the perspective of anyone who affirms an allegiance to the law, conceived as a set of collaborative arrangements for the pursuit of justice and the public good, no such wicked measure could qualify as law. Flouting the basic ideal of equality, or equal justice, its invalidity would be manifest. Its repudiation would be a condition of continuing allegiance, simultaneously preserving both the law’s and the interpreter’s integrity. According to Dworkin’s theory, as Greenberg explains, the law consists in the set of principles that provides the best moral justification of past legal and political practice. The “moral impact” theory, by contrast, identifies the law as “a subset of what morality, taking into account all the relevant considerations, requires.”35 In Greenberg’s view, “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.” One might expect, instead, 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.”36 If legal practice were “severely morally flawed,” however, an interpretative posture would be undermined at the outset. We would deny any obligation of obedience to law, in the sense of a duty to comply with official directives, and work instead to oppose the regime and denounce the injustice it enforced. Skepticism would reign in the absence of the requisite harmony between principle and practice.37 But that would be a last resort, giving up on the ideal of fidelity to law. Ideally, we should confront injustice as inimical to our shared traditions, making the case for urgent reform. We should welcome complaints and challenges as demands for better compliance with basic principles, delineated by reference to recognized paradigms—illustrations of the operation of general principles that are widely affirmed, at least provisionally, subject to further reflection and argument. When Dworkin concedes that legal requirements may not be moral requirements, or that law may be “too immoral to enforce,” he betrays his own interpretative project.38 We should insist that legal obligations are genuine moral obligations, underpinned by principles affirmed by legal practice as a whole. If the law is intended to supply a justification for state coercion, as Dworkin maintains, it must be interpreted and applied in a manner that vindicates justice. That means, admittedly, justice as the political community conceives it, articulated in detail by recourse to legal practice. When, however, that practice is constructed on the fundamental assumption of equality—the equal dignity of all members of the community—it will have internal, in-built defenses against iniquity. Any specific rule or requirement that, on its face, apparently flouts that basic precept of equality, or equal citizenship, is either invalid or does not mean what it superficially suggests. It must be interpreted by recourse to the law as a whole, treated as a coherent scheme of justice that serves the interests of all.39 It is doubtful, moreover, how far morality can offer determinate guidance when divorced from the standards internal to legal practice itself. It is more plausible to treat law and morality as a unified account of the demands of justice, applicable primarily to the practice or jurisdiction immediately in view. It is only in the context of a complex legal practice, embracing a multitude of actions and relationships, private and public, that abstract principles of morality could obtain sufficient specificity to resolve disputes. While plausibly treating law as the consequences of institutional action for the “moral profile,” Greenberg overlooks that special combination of practice and principle that, for any given society, constitutes the moral profile.40 Greenberg argues that, by maintaining a monopoly on the use of force, protecting people against violence and reliably punishing wrongdoers, a legal system can make resort to violence otherwise morally impermissible.41 Whether or not, however, the use of violence (whether by officials or private citizens) is justified in any particular case depends, in large part, on analysis of local practice, informed by both explicit (written) and implicit (unwritten) standards. Greenberg makes the point himself, in effect, when he adds that legal institutions can make punishment morally permissible by giving notice of which morally wrong acts are punishable and what corresponding punishments will apply.42 The institutional record, correctly interpreted, is what lends political morality the necessary precision. It determines when we are justified in using state coercion to limit freedom. An action is unjust when it infringes the legal arrangements that regulate the life of the community in the interests of all its members. When we invoke the ideal of the rule of law, we usually suppose that obedience to law is a distinctive virtue, signaling allegiance to the political community. Even when we disagree about the demands of morality, as we often do, we can usually agree to abide by the requirements of the rule of law. Those requirements, even if they are often controversial, reflect the history and character of a common practice. And such fidelity honors the equal dignity of persons, who must collaborate in refining and enforcing a just scheme of governance. When there are legitimate and effective arrangements in place, all those who enjoy the benefits it provides are obligated to accept the accompanying burdens. These are the bonds of civility or civic friendship, forged by mutual commitment to fundamental equality. We adhere to political morality by obedience to law, as the interpretative community understands it.43 III. Principle, Practice, and Precedent Within a thoroughgoing interpretative account of law, there is an intimate connection between legal rule and moral principle. While legal rules are a useful distillation of the applicable reasons, they cannot wholly displace those reasons, even in particular cases. Common law reasoning is exemplary. The law is inferred from judicial decisions, treated as examples of the appropriate balance of principles in particular contexts. Insofar as there is settled law on any issue, it is, as Stephen Perry observes, a mere by-product of the adjudicative process: it is “never more than a weighted but nonetheless provisional approximation to those requirements of morality the determination and application of which constitute the ultimate obligation of the common law judge.”44 A legal proposition obtains whatever authority it possesses from the cogency of the reasons that justify it. It cannot be more than a summary and provisional statement of how the balance of reasons lies in a specific context or in particular circumstances. When lawyers begin to doubt the proposition’s correctness, questioning the strength of the underlying reasons, they strip the associated rule of its authority. The rule will be narrowed by confining it to a more limited class of cases; the decisions that support it will be readily distinguished in subsequent cases. In time even that limited class may disappear, the rule being overturned as inconsistent with the larger scheme of regulation within which it remained as a temporary outlier.45 The backward-looking aspect of adjudication is intrinsic not merely to considerations of fairness as between the litigants, who will have acted in the light of previous institutional decisions, but also to the ideal of justice itself. The litigants are justly treated only when their dispute is resolved in accordance with settled standards of conduct, identified by study of established practice. Those standards are the measure of justice for the community, woven into a larger framework that, in an important sense, constitutes the community. They cannot coherently be rejected, as inimical to justice, without repudiating the bonds of political community—condemning established arrangements as wholly and irremediably flawed, incompatible with basic equality. Respect for practice or tradition is not, then, an impediment to the attainment of justice. It is rather the very means of its attainment, substituting for the idiosyncratic opinions of the outside observer the disciplined, internal, interpretative deliberations of the judge. Within a system of principle and precedent, there can be no clear separation between the source and consequences of law. We cannot distinguish between official source and moral effect because all law has its ultimate source in the common understanding—the principles exemplified by those instances of appropriate conduct and attitude that are widely affirmed, supported where necessary by legal reasoning and judicial decision. Ordinary citizens look to the courts to give more articulate and systematic shape, when required, to arrangements that reflect the history of a struggle for order and justice within their community. Greenberg’s “moral impact” theory, however, accommodates only content-independent reasons for action, seeking the moral consequences of such official action treated as institutional fact. It allows the precedent decision no intrinsic moral authority, reflecting its status as part of a flourishing practice. The critical issue is whether a precedent’s moral salience derives from its bearing on our moral obligations, considered independently, or instead from its implications for legal practice, regarded as a morally defensible (if imperfect) scheme of public justice. On the former view, the facts of institutional practice may alter the moral landscape by giving us new reasons for action. Following precedent in the resolution of disputes may promote the interests of certainty or predictability and in that way contribute to the coordination of people’s activities. If, moreover, people have acted in reasonable reliance on a pattern of official conduct, it may be unfair to disappoint their legitimate expectations. There may also be related considerations of equality of treatment. If, prima facie, like cases should be decided alike, it would be unfair to depart from precedent in the absence of good reason—relevant considerations of justice or public policy. It may well be thought that a judge should administer “legal justice,” narrowly understood, in preference to the pursuit of a broader conception of justice, which is likely to be controversial. If, however, the moral salience of precedent is internal to the scheme of public justice, the position is entirely different. The interests of certainty or predictability are not so readily distinguishable from the considerations of justice that pertain to the merits of the competing claims in issue. There is reasonable reliance only insofar as a precedent is at least a plausible interpretation of the larger scheme to which it contributes. There is reasonable reliance not on the bare facts of previous official conduct or attitude, but rather on the moral grounds that support such conduct or attitude—where such grounds do indeed exist. Like cases should be decided alike in the sense that every case should be determined by reference to the scheme of public justice—to the law viewed as a consistent and coherent system of regulation applicable, as appropriate, to everyone. “Legal justice” is understood to be the pertinent standard of justice, defining the rights and obligations of members of the political community—a community forged and unified by adherence to a flourishing legal tradition.46 If from the former, external, perspective adherence to precedent may initially appear paradoxical—imposing a moral obligation to follow morally dubious decisions—from the latter, internal, viewpoint the paradox dissolves. There is no question of following morally incorrect principles, suggested or affirmed by precedent.47 A decision has status as a precedent, acquiring legal and moral weight, only insofar as it can reasonably be treated as a proper application of the larger scheme of public justice. We need not be bound by an erroneous precedent, inconsistent with the correct interpretation of the law as a whole; we are obligated to follow precedent only insofar as it conforms to the general scheme of legal principle. We do not follow precedent in preference to justice. Justice is for all practical purposes—on the internal view—defined by legal tradition, exemplified by the precedents that conform to that tradition. We follow precedent only in contrast to private notions of justice, which in having little or no public recognition or resonance are irrelevant to the proper resolution of disputes between persons of as equal members of the polity. In common law theory there is no gap between legal and political obligation—no scope for conflict between the law’s demands and those of political morality. The legal and constitutional order, correctly interpreted, specifies the moral duties of the citizen, which in the normal case will coincide with his moral obligations tout court. There cannot be genuine legal duties that provoke an obligation in justice to disobey. A grave breach of justice, sufficient to unravel the ordinary duty of allegiance, would signal a departure from legal principle. An offensive precedent, radically at odds with legal principle, would need to be distinguished or overruled or otherwise restricted or repudiated as the price of continuing allegiance—a necessary step in preserving the critical connection between public commitment and private conscience. Each interpreter must accept responsibility for judgment: legal obligation and individual conscience are perfectly aligned. Greenberg considers it a strength of his theory that it explains how legal systems can generate morally binding obligations even if there is no general moral obligation to obey the directives of legal authorities. In the absence of a general moral obligation to comply with the instructions of popularly elected representatives, the binding power of statutes must be separately explained, even if democratic considerations can reinforce other factors (such as the need for coordination of conduct) that yield moral obligations in particular cases.48 Even if we could account for the moral implications of statute in this way, however, the argument is inapplicable to the common law. While Greenberg grants that for reasons of fairness like cases should be decided alike, he supposes that our familiar practices, such as distinguishing past decisions and treating the judicial announcement of rules as obiter dicta, can be seen as means of reconciling the competing values of fairness and democracy.49 From an internal perspective, however, closer to common law thought, political morality requires an appropriate integration of statute and precedent—enacted text and legal principle. The value of fairness, requiring us to treat like cases alike, is intrinsic to the idea of law as a basis for cooperation between citizens of equal dignity. Inconsistent decision-making entails a departure from justice—a breach of the principles that justify those precedents widely affirmed as central to the scheme of public and private law. We distinguish previous decisions, or reject as obiter observations we think mistaken, not (or not primarily) because we wish to limit the power of earlier courts. We draw the distinctions between cases that are necessary to obtain doctrinal coherence. A complex confluence of legal rules and principles must be brought into harmony, as far as possible, by constant accommodation and adjustment, sensitive to the huge variety of human and social experience. It is certainly true, as Greenberg observes, that whether a case is relevantly similar to a previous case is a moral question, not simply a matter of what the earlier court declared.50 But similarity is dependent on analysis of legal doctrine, which mediates between judicial explanation and moral judgment. Law and morality are closely interdependent here. The moral relevance of any single precedent depends on our grasp of its place within the larger scheme of legal principle, which in turn reflects a vision of justice, attuned to the moral values that underpin our allegiance. If it is true that the practice of following precedent is a moral practice, requiring individual moral judgment, it is also true that the legal context is critical. Justice according to law demands a certain intellectual humility: we locate its requirements, in particular cases, by adherence to a practice that we interpret in collaboration with others. Lawyers give careful attention to judicial reasoning because it is central to the interpretative endeavor on which successful legal analysis depends. A court has authority to decide the particular case, applying the current law. It does not have authority to legislate—to enact a rule for future cases. It follows that a precedent’s ratio cannot simply be equated with any rule asserted in the judgment, which may be too widely or too narrowly expressed or otherwise mistaken. The court in a subsequent case must construct the ratio for itself, selecting the rule that best justifies the earlier decision. It is literally true, then, that what the precedent court decides is more important than what it says. In practice, however, what may strictly be obiter dicta will normally be accorded great respect. They represent the considered reflections of senior judges on relevant points of law—offered as part of a continuing dialogue in which lawyers struggle to integrate competing values, adjusting the law in the light of experience. IV. Law, Justice, and Democracy Although a statute stands in contrast with precedent in possessing a canonical text, its normative consequences must finally depend on analysis of the law as a whole. There is no automatic correspondence between the text of a provision and the rule it enacts. As Greenberg argues, it is only if a statutory provision is treated as an authoritative pronouncement that there is any such direct relation between text and norm. On that view, a rule’s requirements are supplied by ordinary linguistic content (including both semantic and pragmatic content).51 But that view is misguided. The rule must instead be constructed in the light of all the applicable moral reasons—reasons that mediate, via general principles of law, between statutory purpose, broadly conceived, and the particular case. Common law presumptions of legislative intent do not predict or displace anyone’s actual intention about the disposition of particular cases. They operate instead as general principles, assisting the integration of enacted rules into the wider corpus of the common law.52 A statute corrects what was perceived as an error or defect in the law that it amends.53 Once its rationale is understood, it is possible to identify primary instances of proper application. Other, more doubtful, cases can then be determined accordingly. We can ask whether doctrinal coherence is better promoted by extending the rule by analogy or, on the contrary, confining it to a narrower range of instances. Once the rule is grasped by reference to a concrete example, the interpretative process is similar to common law reasoning. When the reasons against any extension of the rule are persuasive, the standard case will be distinguished; and the greater the threat to any fundamental principles of law, the more narrowly must the statutory rule be construed. There may be no judicial power to strike down a statutory rule or declare it invalid. But the rule is nonetheless subsumed into the larger body of the law, its power to do injustice curtailed by a style of interpretation respectful of basic (common law) rights.54 It is only if statute is treated as a wholly independent source of law—a set of instructions divorced from legal and constitutional tradition—that such an approach might be thought undemocratic. If we divorce rule from reasons, in the positivist manner, judicial interpretation appears to be a threat to the legislative will. But any such divorce is a challenge to the rule of law, which insists not merely that each case must be decided by reference to general criteria, but that such criteria should themselves be morally defensible—elements of a larger corpus of law that operates harmoniously in the interests of all. However widely we draw the scope of legislative powers to make new law, those powers must operate within the context of an “unwritten” legal order—unwritten in the sense that all rules and regulations, when formally adopted in written form, must finally be subject to interpretation as parts of the law as a whole. That deliberative and discursive approach is critical to due process of law, the kernel of the ideal of the rule of law.55 The interpretative judicial process therefore secures the conditions of democracy: it provides the means whereby legislation can be incorporated into law, advancing the public good, as parliamentarians perceive it, without damage to the constitutional framework that guarantees equal justice. Detached from the interwoven pattern of practice and principle, in some respects unique to the jurisdiction in view, the “moral impact” of a statute is simply indeterminate. Greenberg criticizes the “standard account” of statutory interpretation: a search for the linguistic content of the text, standing alone, is powerless to distinguish between semantic and communicative content (what is conventionally encoded in the words and what it was intended to communicate).56 If, however, the choice between competing linguistic contents depends on the best account of democracy, as Greenberg suggests, statutory meaning is heavily dependent on abstract political theory.57 If the moral implications of a statute’s enactment involve an exploration of all the relevant values, as Greenberg insists, they acquire determinacy only within the deeply textured fabric of a flourishing legal order, sustained by its own unique traditions.58 Greenberg contends, against Dworkin, that “a straightforward appeal to which interpretation yields a morally better standard does not seem permissible in legal interpretation.”59 An interpretativist appeals, however, to moral standards implicit in the law as a whole; moral standards do not operate at large, divorced from the practice that they inform and illuminate. Greenberg denies that the relevance of democratic considerations derives from history and tradition; we are not seeking principles that fit and justify our practices, which happen 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.”60 What counts as an equal opportunity to participate, however, depends in large part on tradition, connecting abstract moral principle with the legal and political context. Our practices do not just happen to be democratic; they are the very basis of the shared understanding on which we build our mutually reinforcing concepts of law and democracy.61 V. Conclusion While Greenberg and Hershovitz are right to insist on moral judgment as the basis of legal judgment, they draw too sharp a distinction between principle and practice. Our judgments of law seek to make determinate what are otherwise very abstract notions of morality, unfitted for work in the ordinary interactions of social and political life. When our practices can be accounted legitimate, in spite of their many imperfections, their basic principles inform the content of every legal obligation and identify very grave injustice as contrary to law—a breach of the traditions and understandings that constitute us a genuine political community.62 When we talk as if anyone had an obligation to obey (or judges to enforce) a potentially wicked enactment, we are usually adopting the viewpoint of officials, normally the executive officers charged with implementation. We are simply confusing what the law requires, correctly understood, with what officials claim the law requires; and these are often different things. The resort to civil disobedience, for example, is often characterized, misleadingly, as a refusal to obey the law. But it is usually better analyzed as a refusal to obey officials, who are attempting to enforce what is often only doubtfully the law. Their specific demands are, in the view of the dissentients, inconsistent with law, being made in violation of legal and constitutional principle. Even if our “working theory” is that executive officials are legally obligated to enforce the statutes, as Hershovitz contends, it does not follow that they should be blind to the constitutional context.63 And that context will affect what the statute should be taken to mean or require. If, as Hershovitz concedes, we want such officials to “experience conflict” when they come across a dubious statute, it is because we want them (as far as possible) to be obedient to the law as a whole, recognizing the interpretative role of general principles. When, accordingly, they decline to cooperate with oppression, they are not truly “stepping outside their role”, as Hershovitz suggests. They are merely striving to replicate the reasoning of any independent judge, who might in due course have to determine the legality of their conduct. While, in general, humility and deference suit the role of executive official, such virtues become vices when more senior officials seek to abuse their power, violating the first principles of equal justice. Wicked enactments may be “law” in the loose sense that officials may succeed in enforcing them as if they were. They may generate prudential obligations if people must follow their literal instructions to avoid state violence in retaliation for resistance. But they are not law in the proper sense that they create moral obligations of compliance or cooperation. If, of course, they are widely accepted as laws, imposing genuine obligations, they may serve to illuminate a wicked practice. There is law in the sociological sense that state institutions succeed in obtaining people’s cooperation; official demands, though morally repugnant, are wrongly treated as if they were truly obligatory. A true proposition of law, however, derives only from a theory that integrates practice and principle; legality is in that way ultimately dependent on legitimacy. When Dworkin finally acknowledges that there is no firm distinction between questions about the law’s content and the propriety of its enforcement—a distinction erased by an integrated account of law and morality—he recognizes that popular assumptions about the validity of the Fugitive Slave Act were problematic.64 Dworkin is inclined to say that while the slaveholders had, in principle, a political right to regain their slaves on demand, that right was trumped by a “moral emergency.” But then we must concede, with Hershovitz, that the judges should not have applied what they acknowledged as law. Law is no longer, in any real sense, a branch of political morality. Dworkin has confused the literal text of the statute with its normative content, which is an interpretative matter dependent on the law viewed as a whole. The slaveholders’ right was bogus, excluded by the principles of equality and due process on which legitimacy depends.65 Helpful comments on earlier drafts of this article by John Allison, David Dyzenhaus, and Nigel Simmonds are very gratefully acknowledged. Footnotes 1 " Ronald Dworkin, Justice for Hedgehogs (Cambridge, MA: Harvard University Press, 2011), ch. 19. According to Dworkin, legal rights form a “special branch” of political rights “because they are properly enforceable on demand through adjudicative and coercive institutions without need for further legislation or other lawmaking activity” (ibid., 407). Dworkin notes (ibid., 402) that he had first challenged the “two-systems picture” in Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), ch. 3. 2 " For helpful discussion, see Stephen R. Perry, “Two Models of Legal Principles,” Iowa Law Review 82 (1997): 807-15. 3 " Mark Greenberg, “The Moral Impact Theory of Law,” Yale Law Journal 123 (2014): 1288-1342. 4 " According to Greenberg, “there are evil laws, where ‘laws’ is used in the sense of statutes or other authoritative legal texts”; the question, he supposes, is “whether such statutes give rise to evil legal norms”: see Greenberg, “The Moral Impact Theory,” 1338. 5 " Mark Greenberg, “The Standard Picture and Its Discontents,” in Oxford Studies in Philosophy of Law, vol. 1, ed. Leslie Green and Brian Leiter (Oxford: Oxford University Press, 2011), 39-106. 6 " Ibid., 41-54. Greenberg identifies various dimensions of what he calls the “command paradigm”, including an “explanatory directness thesis,” a “linguistic content thesis,” and “atomism” (see further below). 7 " Ibid., 60. 8 " Scott Hershovitz, “The End of Jurisprudence,” Yale Law Journal 124 (2015): 1160-1204. 9 " Ibid., 1194n57 (emphasis in original). 10 " See John Austin, The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble (Cambridge: Cambridge University Press, 1995), 157. 11 " Hershovitz, “The End of Jurisprudence,” 1194. 12 " Compare Joseph Raz, “Incorporation by Law,” Legal Theory 10 (2004): 1-17. Raz argues that, if judges are generally subject to morality, the law must make a difference by excluding morality. Raz qualifies the point, however, by explaining that “the law modifies the way morality applies to people”, thereby advancing moral concerns rather than undermining them (ibid., 9). As Waldron observes, the critical difference between Dworkin’s views and those of Raz concerns whether the law must itself be identified without making any moral judgment. See Waldron, “Jurisprudence for Hedgehogs,” (Public Law & Legal Theory Research Paper Series, Working Paper No 13-45, New York University School of Law, 2013), 16-9. 13 " Dworkin’s account of law as integrity is presented in Ronald Dworkin, Law’s Empire (London: Fontana Press, 1986), chs. 6, 7. 14 " See Dworkin, Law’s Empire, 413: Law’s empire is defined by attitude, “a protestant attitude that makes each citizen responsible for imagining what his society’s public commitments to principle are… .” 15 " As Dworkin argues, interpretation “is pervasively holistic,” the network of values engaged facing “the challenge of conviction as a whole”: Dworkin, Justice for Hedgehogs, 154. 16 " Hershovitz, “The End of Jurisprudence,” 1194. 17 " Compare Dworkin’s own distinction between “inclusive integrity” and “pure integrity,” our task being to “work out law’s ambitions for itself, the purer form of law within and beyond the law we have”: Law’s Empire, 407. Dworkin distinguishes between the doctrinal and sociological concepts of law, focusing his attention on the former: see Ronald Dworkin, Justice in Robes (Cambridge, MA: Harvard University Press, 2006), ch. 8. 18 " See T. R. S. Allan, “Interpretation, Injustice, and Integrity,” Oxford Journal of Legal Studies 36 (2016): 58-82. 19 " For the role of paradigms in legal argument, see Dworkin, Law’s Empire, 72-3, 88-92, 138-9. 20 " Hershovitz, “The End of Jurisprudence,” 1195-9. 21 " Dworkin, Taking Rights Seriously, 57-8. 22 " Compare Gerald J. Postema, “Integrity: Justice in Workclothes,” Iowa Law Review 82 (1997): 821-55, defending integrity in the form of fidelity, owed to other members of the community: “Law is a framework of practical reasoning that anchors the public justification of decisions and actions to past communal decisions and actions” (851). See also Gerald J. Postema, “Law’s Rule: Reflexivity, Mutual Accountability, and the Rule of Law,” in Bentham’s Theory of Law and Public Opinion, ed. Xiaobo Zhai and Michael Quinn (Cambridge: Cambridge University Press, 2014), 7-39. 23 " There may, of course, be occasions on which one should decline to enforce one’s legal rights, having regard to the circumstances affecting the person in breach of them. 24 " Greenberg, “The Standard Picture and Its Discontents,” 84-5. 25 " Ibid, 91-2. For Raz’s view, see Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994), ch. 9. 26 " Greenberg, “The Standard Picture,” 94. 27 " Ibid, 99-100. 28 " The “moral profile” includes moral obligations, powers, permissions, privileges etc. obtaining within a given society (recognizing that what morality requires depends on the circumstances): ibid, 56-7. 29 " Ibid, 97. 30 " Greenberg, “The Moral Impact Theory of Law,” 1314. 31 " Ibid, 1321-2. 32 " Ibid., 1322. 33 " Compare John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1972), 365-6, observing that civil disobedience invokes the public conception of justice that underlies the political order, obliging the majority to consider whether it wishes to acknowledge the legitimate claims of the minority. 34 " The identification of the content of a legal text with the content of a legal rule or norm is a feature of the standard view that Greenberg rejects: see Greenberg, “The Standard Picture,” 60-2, 66-8. 35 " Greenberg, “The Moral Impact Theory of Law,” 1302. 36 " Ibid. 37 " For Dworkin’s account of (internal and external) skepticism, see Dworkin, Law’s Empire, 78-85, 266-71. 38 " Dworkin, Law’s Empire, 262. Dworkin embraces the possibility (ibid., 219) that “the law of the United States, properly interpreted in deference to integrity, did include the Fugitive Slave Act enacted by Congress before the Civil War,” leading to a potential conflict between integrity and justice. See further below. 39 " Gustav Radbruch defends a similar distinction between genuine law, respectful of basic equality, and “statutory lawlessness,” being an abuse of legal forms and hence invalid: see Gustav Radbruch, “Statutory Lawlessness and Supra-Statutory Law” (1946), translated by Bonnie Litschewski Paulson and Stanley L Paulson, Oxford Journal of Legal Studies 26 (2006): 1-11. Julius Ebbinghaus, “The Law of Humanity and the Limits of State Power,” The Philosophical Quarterly 3 (1953): 14-22, reaches similar conclusions: “Any subjection of men which is not designed to secure the rights of all is unjust, despotic, and contrary to the law of humanity” (ibid., 17). 40 " See also T. R. S. Allan, “The Moral Unity of Public Law,” University of Toronto Law Journal 67 (2017): 1-30. 41 " Greenberg, “The Moral Impact Theory of Law,” 1311. 42 " Ibid. 43 " Compare Dworkin’s defense of political obligation as associative, grounded in the ideal of community or fraternity characteristic of a “genuine political community,” governed by common principles that underlie and inform institutional decisions: Dworkin, Law’s Empire, 195-202. See also John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), ch. 6. Obedience to law is owed to the community, in Finnis’s view, because law is intended to serve the common good—community (following Aristotle) being itself an extension of (and analogous to) friendship and family. 44 " Stephen R. Perry, “Judicial Obligation, Precedent and the Common Law,” Oxford Journal of Legal Studies 7 (1987): 252. 45 " Perry observes that propositions of the common law are “established as a part of the law to a greater or lesser degree, in the sense that they can vary in the extent to which they resist reformulation, qualification, revision and replacement” (ibid., 241). Explicit overruling of precedents is not dissimilar in kind to distinguishing them, being merely a matter of degree: “Overruling is simply the necessary implication of a sufficiently drastic restatement of the law that an earlier case would now be decided differently” (ibid., 243). 46 " Compare Mark D. Walters, “The Unwritten Constitution as a Legal Concept,” in Philosophical Foundations of Constitutional Law, ed. David Dyzenhaus and Malcolm Thorburn (Oxford: Oxford University Press, 2016), 33-52. Walters explains that traditional common law thinking incorporated natural law into ordinary municipal law, which was, in essence, “an unwritten law that integrated moral principle and practical experience through ordinary methods of legal reasoning that attended impartially to precedent and analogy with a view to interpretive coherence between law’s abstract and specific dimensions” (ibid., 47). 47 " See Larry Alexander and Ken Kress, “Against Legal Principles,” Iowa Law Review 82 (1997): 739-86. 48 " Greenberg, “The Moral Impact Theory of Law,” 1314. 49 " Ibid., 1317. 50 " Ibid., 1316-7. Greenberg concedes that “democratic values having to do with public deliberation give weight to a court’s public offering of reasons in support of a standard,” but that concession scarcely acknowledges the contribution of judicial reasoning to doctrinal clarification and coherence. 51 " Greenberg summarizes this view in terms of an “explanatory directness thesis”: there are no explanatory intermediaries between the authoritative pronouncement’s being made and the norm’s obtaining: Greenberg, “The Standard Picture,” 44-54. Greenberg rejects what he calls “atomism”, being the notion that “individual legal norms are explanatorily prior to the content of the law as a whole” (another feature of the “standard picture”): ibid., 49-51. 52 " Greenberg observes, in a similar manner, that the various canons of interpretation should be understood as “rules of thumb for working out the moral consequences of statutes”: Greenberg, “The Moral Impact Theory,” 1333. 53 " Compare the discussion of Heydon’s Case (1584) 3 Co. Rep. 7a, in Lon L. Fuller, The Morality of Law, rev. ed. (New Haven: Yale University Press, 1969), 82-5. 54 " English law provides many examples. General statutory powers, in particular, are not treated as authorizing breaches of procedural justice or other well-established common law rights (see e.g., R. (Daly) v. Secretary of State for the Home Department [2001] UKHL 26, [2001] 1 A.C. 532.). 55 " Compare Walters, “The Unwritten Constitution,” 49, emphasizing the pervasive quality of law, “understood to stretch across the entire field of social and political life leaving no gaps where the exercise of power is arbitrary.” 56 " Greenberg, “The Moral Impact Theory,” 1291-92, 1325-8. See also Greenberg, “Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication,” in Philosophical Foundations of Language in the Law, ed. Andrei Marmor and Scott Soames (Oxford: Oxford University Press, 2011), 217-56. 57 " See Greenberg, “The Moral Impact Theory,” 1293-4. According to Greenberg, “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” (ibid., 1293). 58 " While explaining that 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,” Greenberg concedes (in parenthesis) that morality may not provide a unique answer to every practical question (ibid., 1330). It is surely more reasonable to anticipate a unique answer, however, when we appreciate the interpenetration of moral principle and legal practice. 59 " Ibid., 1293. 60 " Ibid., 1313. 61 " See further T. R. S. Allan, The Sovereignty of Law: Freedom, Constitution, and Common Law (Oxford: Oxford University Press, 2013), especially chs. 4, 5, 8. 62 " For the conditions of genuine community, see Dworkin, Law’s Empire, 206-15. 63 " See Hershovitz, “The End of Jurisprudence,” 1191-2. 64 " Dworkin, Justice for Hedgehogs, 410 - 2. 65 " See Ronald Dworkin, “The Law of the Slave-Catchers,” Times Literary Supplement, December 5, 1975, 1437 (reviewing Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1975)). © The Author(s) 2020. Published by Oxford University Press on behalf of University of Notre Dame. All rights reserved. For permissions, please email: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Law as a Branch of Morality: The Unity of Practice and Principle
JF - American Journal of Jurisprudence
DO - 10.1093/ajj/auaa001
DA - 2020-06-01
UR - https://www.deepdyve.com/lp/oxford-university-press/law-as-a-branch-of-morality-the-unity-of-practice-and-principle-jJh4kGqhqK
SP - 1
VL - 65
IS - 1
DP - DeepDyve
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