Reflections on Theorizing About the Moral Foundations of the Law: Using the Laws Governing Detention as a Case Study

Abstract:     
My concern here is to illustrate how judicial review can and should make use of basic moral notions by examining the constitutionality, under the U.S. Constitution, of subjecting a legally resident alien, captured in the United States, to long-term military detention as an “enemy combatant.” The point of this is not simply to add to the list of moral issues that the U.S. Constitution - and presumably other constitutions - have to come to terms with. It is also to demonstrate that sophisticated moral theorizing should be relevant to the practice of law. I do so by showing that in the absence of such careful inquiry, the constitutional discussion regarding the military detention cannot reach a satisfying resolution.

I proceed by arguing in part A that judicial review provides an opening for bringing moral reasoning, and in particular sophisticated reasoning about aspects of justice, into the law. The rest of the paper turns to the topic of detention law to illustrate the need for sophisticated moral reasoning in constitutional law. In part B, I give an overview of my unified moral theory of detention, which I will argue further on must be appealed to in order to arrive at a defensible constitutional theory of military detention. In part C, I discuss the decision in al-Marri v. Pucciarelli, which split on the issue of whether a legally resident alien in the United States, who was not a combatant under the traditional law of war, could nonetheless be held as an enemy combatant in long-term military detention. I argue there that neither side of the issue took a defensible position because neither side understood what the underlying moral issues are. In part D, I argue that to make sense of the constitutional significance of being a combatant, we need to understand how that concept arises in a larger moral framework, and give a summary of how the framework I sketched in part B fits that bill.

Number of Pages in PDF File: 21

Keywords: ethical foundations of law, military detention, judicial review

Accepted Paper Series