Argument and the 'Moral Impact' Theory of Law

Abstract

The new Moral Impact Theory (“MIT”) of law is novel, innovative, and influential. It claims that the moral impacts of legal institutional actions, rather than the linguistic content of “rules” or pronouncements, determine law’s content. MIT’s corollary is that the practice of legal interpretation consists in the inquiry into what is morally required as a consequence of the lawmaking actions. This paper challenges MIT by critiquing its attendant view of the nature of legal interpretation and argument. Points include the following: (1) it is not practicable to predicate law’s content on the ability of legal officials to resolve moral controversies; (2) it would be impermissibly uncharitable to claim that participants in the legal system commit widespread error not only in failing to regard moral argument as a focus of legal interpretation, but also in rejecting this notion outright; (3) MIT likely arises from a confusion between two levels of thought, the intuitive and the critical: whereas the legal official may initially respond to a conflict at the intuitive moral level, she must resolve the controversy at the deliberative, critical level, at which moral and legal thinking diverge; (4) because no two cases are precisely alike, and owing to the open texture of natural language, reference to extra-jurisdictional “persuasive” and “secondary” authority permeates legal argument, yet, nearly by definition, such linguistic sources cannot have engendered significant moral impacts in the home jurisdiction; (5) one way or another, including on assessing moral impacts, we arrive at linguistic contents. The paper concludes by suggesting a more apt theoretical understanding of the moral impacts engendered by legal institutional actions. While MIT has not established that legal officials are morally obligated to arrive at a particular substantive outcome in any case or controversy, there is no question that legal institutional actions have moral impacts, and generate moral obligations. Officials are obligated to adhere to certain constraints in their treatment of one another, cases, litigants and citizens. Less explored, however, have been the ways in which legal pronouncements likely morally impact the community, beyond the issue of a duty to obey the law.