30 Pages Posted: 4 May 2006
There is an ongoing debate in contemporary jurisprudence over whether law, properly conceived, is capable of incorporating morality. And these debates have their important practical analogues, especially in American constitutional law. For this is where lawyers and scholars argue about whether, for example, the guarantees of equal protection, freedom of speech, and the free exercise of religion, as well as the prohibitions on cruel and unusual punishments and unreasonable searches and seizures, require courts and other governmental decisionmakers to adhere to the correct moral principles regarding equality, freedom of speech, freedom of religion, punishment, and (locational) privacy. That these and other constitutional clauses appear to speak in moral language is relatively uncontroversial, but far more controversial is what it means for authoritative law to speak in moral language, and how, if at all, such language connects law with what it is simply and pre-legally morally right (and wrong) to do.
These debates about the status of morality in legal argument are important, but our goal here is not to engage them frontally. Rather, we wish to illuminate a particular aspect of these debates. And that aspect is the logic of the incorporation by law of morality, and the way in which, if at all, law can retain its lawness and retain its ability to perform law's essential functions while still being open to the full universe of moral considerations. In a word, we do not believe that this is possible, and thus we believe, and shall argue here, that even when law incorporates morality it can only serve law's primary and essential functions if it has a considerable degree of resistance to the pressure of at least some morally correct moral claims. In other words, we strive here to make the moral argument for law's ignoring of at least some moral arguments in legal decision-making.
Keywords: positivism, rules and standards, incorporation of morality
JEL Classification: K40, K10
Suggested Citation: Suggested Citation
Alexander, Larry and Schauer, Frederick, Law's Limited Domain Confronts Morality's Universal Empire. ; William and Mary Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=900254
By Leon Trakman