How to Think About Law as Morality: A Comment on Greenberg and Hershovitz

Abstract

In recent Essays, Mark Greenberg and Scott Hershovitz defend striking theses about the relationship between legal obligations and moral obligations (and between legal facts and moral facts in general). Put simply, Greenberg argues that legal facts simply are certain moral facts: the moral facts generated by the actions of legal institutions in the legally proper way. In contrast, Hershovitz argues that, properly understood, there are no legal facts, only moral facts we regard as legal for certain purposes. In this Response, I explain and evaluate parts of each proposal. First, I argue that Greenberg identifies legal facts with the wrong set of moral facts, one that fails to fit and explain our ordinary judgments. Even so, I favor Greenberg’s basic approach, and outline an alternative that strikes me as more promising. Second, I explain the challenge posed by Hershovitz’s more radical thesis, and provide some reasons to think it’s a challenge that Greenberg might meet.

Keywords: law, morality, jurisprudence, legal philosophy, philosophy of law, natural law