55 Pages Posted: 25 Aug 2013 Last revised: 26 Mar 2014
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.
Keywords: philosophy, legal philosophy, philosophy of law, jurisprudence, legal positivism, anti-positivism, law and morality, Dworkin, the standard picture, beyond the standard picture, natural law, evil law, the dependence view
Suggested Citation: Suggested Citation
Greenberg, Mark, The Moral Impact Theory of Law. 123 Yale Law Journal 1288 (2014); UCLA School of Law Research Paper No. 13-21. Available at SSRN: https://ssrn.com/abstract=2309689