The Moral Criticism of Law

The Moral Criticism of Law

Description

This book was conceived as an introduction to the philosophy of law, to be used, if the reader or teacher so wishes, in tandem with Joel Feinberg and Hyman Gross’s Philosophy of law (Dickenson Publishing Co., Inc., 1975). The issues discussed in this book accordingly were determined and the structure of the discussion shaped, by that fine and admirable anthology. Most importantly, this book shares the basic approach of the Feinberg-Gross anthology, focusing the philosophy of law on the analytic examination of concrete moral-legal problems of a serious and controversial nature. Each book, of course, stands on its own and can be read and understood independently of the other. Nonetheless, together, I believe, they represent a significant new approach to the relation of law, moral philosophy, and philosophical analysis in general. This burgeoning new discipline of law and philosophy is, in my opinion, one of the most promising recent developments in interdisciplinary legal studies. This volume and the Feinberg-Gross anthology are exploratory steps in an enterprise that I believe will in time produce significant contributions to our understanding of the life and practice of the law. In execution, this book is a concrete application of the conception of moral philosophy and law presented in John Rawls’s A Theory of Justice (Harvard University Press, 1971) and my own A Theory of Reasons for Action (Oxford University Press, 1971). Moral philosophy, of a quite abstract theoretical kind, is here put pragmatically to work as the center of the philosophical examination of law. The focus of this book specifically arises from my own recent efforts to bring moral philosophy and law together in a way that I hope is fruitful for both, namely, the philosophical analysis of moral values in constitutional law. Chapter 3’s discussion of obscenity law and free speech first appeared in more extended form in my “Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment” (123 University of Pennsylvania Law Review, 45, (1974)); the discussion of the constitutional right of privacy and sexual deviance is a preliminary sketch of arguments more extensively developed in my “Unnatural Acts and the Constitutional Right of Privacy: A Moral Theory” in 45 Fordham Law Review (no. 6, May 1977). Chapter 4’s examination of school financing is a redaction of my “Equal Opportunity and School Financing: Towards a Moral Theory of Constitutional Adjudication” (41 University of Chicago Law Review 32 (1973)). This book thus draws together my previous work and develops that work in the context of a larger theoretical framework. It was written in the midst of ongoing efforts to develop a comprehensive moral theory of constitutional values. It is important that the reader understand that the discussions in this work are exploratory in nature. I urge this caveat upon the reader’s attention not to escape my responsibility for the view here expressed, but to communicate my own very real sense that while they contain glimmers of some final truth in these matters, these views do not yet articulate that truth in a finished or final way. The comprehensive theory of moral values in constitutional law has yet to be written. . . . This book is intended to afford students and the general public an introduction to the philosophy of law. Accordingly, I try to present here much of the basic material with which any beginning student of the subject should become familiar. A glossary is supplied to clarify and define those terms unfamiliar to the beginning student in philosophy or law which are not sufficiently defined contextually. This book will not present a summary of established conclusions, as one might present in an introduction to organic chemistry or the like. No such established conclusions exist in the philosophy of law. Nor will this book merely summarize standard positions taken and typical arguments made by legal philosophers, although many of these will be discussed. Rather, I intend here both to introduce the reader to the subject matter of the philosophy of law and to do philosophy in this area. Thus, this work is an essay in the basic concerns of the philosophy of law, giving expression to my own views within the context of a general introduction to the subject. The book is structured in this way for reasons fundamental to the aims of philosophical reflection. Philosophy is essentially concerned not with the results of reflection, but this the process of reflection about fundamental conceptual questions in a precise and reasoned way. An introduction to a branch of philosophy should, therefore, not merely pass on information, but aim to stimulate the reader’s interest in and capacity to do more and better philosophical thinking about the subject matter in question. This aim is best accomplished, I believe, by doing philosophy in areas which cry for the illumination which this exciting and powerful intellectual activity may bring. Thus, in this book, the reader will encounter my own attempted answers to many of the fundamental questions of the philosophy of law, perceived in the concrete context of contemporary social controversy—obscenity, sexual deviance, school financing, sex-based discrimination, the elimination of responsibility, therapy versus punishment, the death penalty, and the like. The conclusions regarding these issues are hardly the final truth. In each case, the reasoning behind the conclusions must be carefully examined. This book will have accomplished its purpose not if the reader accepts its conclusions, but only if he or she comes to assess the conclusions in the light of independent, careful, and clear consideration of the underlying reasoning. The capacity for and appreciation of such reasoning is the human depth that we associate with the finest philosophical thought. The depth of such reasoning in the philosophy of law takes the form not only of a more fundamental theoretical understanding, but of an intellectual and moral courage that is remorselessly critical of existing institutions in the light of rationally defensible moral values. The introduction to such reasoning and the invitation to cultivate it are, in my judgment, the introduction to the philosophy of law.

Publication Date

1977

The Moral Criticism of Law

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