Moral decision-making in the name of society (without expertise)

Abstract

ABSTRACT Scott Hershovitz argues that law is a moral practice. In this response, I argue that he is right that we do well to turn our attention to moral questions. However, I argue that Hershovitz should embrace a more thoroughgoing eliminativism, according to which we don't say that law is a moral practice, but rather say nothing at all about law and address the moral questions directly. Hershovitz says that the rule of law requires us to see legal practices as sources of morality. But that requires settling what a ‘legal practice’ is, reproducing questions that more comprehensive eliminativism enables us to avoid. I argue that the rule of law cannot require seeing legal practices as sources of constraint in advance. Instead, we must always determine what is morally required in light of our practices in an all-things-considered assessment. Hershovitz further argues that lawyers are moral experts; I respond that none of us can claim moral expertise, but all of us have the moral responsibility to make our best assessment of what is morally required of us in a given situation, and we cannot rely on ideas of the law or the rule of law to settle that difficult question.