Philosophy, Morality, and Law. Observations Prompted by Professor Fuller's Novel Claim

Abstract

proposition, to the issue of racial discrimination? At what level of abstraction, in other words, should conventional morality be read? We believe that one who holds the abstract opinion but denies the more specific one holds inconsistent opinions. Does that entitle us, in computing the conventional morality, to disregard one of them? Which one? At least in part, our disagreement with those who do not think the specific proposition follows from the abstract one may be a disagreement of fact. Is a court entitled to find the pertinent facts in its usual style and disregard opinion based on a contrary perception of the truth? Still other difficulties flow from the accurate clich6 that a community's moral standards are often honored in the breach. If we distinguish a man's critical behavior (meaning his acts of criticizing or commending others and supplying reasons and arguments therefor) from the rest of his behavior, we shall find many cases in which the lattgr is inconsistent with the former. Shall we say, if this inconsistency is sufficiently widespread with respect to certain principles, that these principles are therefore hypocritical and not to be counted as live standards of the community? Or shall we say that the notion of conventional morality is addressed to the critical behavior of a community's members, and, therefore, includes these standards so long, at least, as the inconsistent behavior does not entirely erode their critical force? Even if we tie conventional morality to critical behavior, we cannot count all critical behavior, for we often criticize others on HeinOnline -113 U. Pa. L. Rev. 689 1964-1965 690 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.113:668 standards neither we nor they would recognize as moral. Can we supply the necessary techniques for distinguishing moral from other sorts of standards? A competent analysis of the concept of conventional morality is needed. It can be achieved, it seems to me, only by pooling the moral philosopher's sensitivity to normative language and argument and the legal philosopher's concern with the way in which community standards are generated and introduced into the legal process. Some may feel that the difficulties I have raised should be met not by exploring the concept of conventional morality but by dropping it, at least for legal purposes. This would perhaps be more expensive than they realize. We have mentioned some recognized examples of explicit and implicit reference to moral standards in statutory and constitutional law. More routine, and therefore less heralded, appeals to such standards so thoroughly permeate the legal process that it can scarcely be supposed that it could function without them. We have already noticed, as a sample, the importance of morality in the interpretation and enforcement of statutes. The administration of even so structured a legal event as a trial or an argument at law, to take a wholly different example, requires constant appeal beyond a code of procedures to community standards of fair play. The concept of a conventional morality serves the function of qualifying moral standards for all these uses, by placing them beside more traditional law in the background of public standards against which the community conducts its affairs. If we abandon the concept we buy relief from its perplexities, but at the cost of having to explain and justify without it the uses of morality in law. HeinOnline -113 U. Pa. L. Rev. 69