The relationship between law and morality has emerged as the central question in the jurisprudential reflection of our time. Those who call themselves positivists hold with H.L.A. Hart that calling a statute or a judicial decision "law" need not carry any implications about the morality of that statute or decision. Valid laws might be immoral or unjust. Those who resist this reduction of law to valid enactments sometimes argue, with Lon Fuller, that moral acceptability is a necessary condition for holding that a statute is law; or, with Ronald Dworkin, that moral principles supplement valid enactments as components of the law.
Whether the positivists or their "moralist" opponents are right about the nature of law, all seem to agree about the nature of morality. We have to distinguish, it is commonly said, between conventional and critical morality. The former consists of propositions supported by social consensus; the latter consists of propositions asserted as objective truth. Either way, morality, like law, consists of propositions – of norms that we either violate or obey.
Moral claims incessantly petition for acceptance as enforceable legal rights. The law moves forward by selectively including and rejecting moral claims about the interests of minorities, women, and fetuses. The great issues of life and death in the law – capital punishment, abortion, terminating health care – would not lend themselves to a solution without the infusion of moral criteria. The rights of criminal defendants and of tort victims are addressed at the intersection of positive law and moral principle. Moral claims stand at the temple of the law and demand admission.
Jurisprudence | Law | Law and Philosophy
George P. Fletcher,
Law and Morality: A Kantian Perspective,
Colum. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1071