Should Law track Morality?

Abstract

Does the moral status of an action provide in itself a non-instrumental, pro-tanto reason for a corresponding legal status—a reason that applies regardless of whether the law promotes a value that is independent of the law, such as preventing wrongdoing or promoting utility or distributive or retributive justice, regardless of the consequences of doing so? While the relation between morality and law is a familiar topic, this specific question is rarely discussed explicitly. Yet it seems to be controversial. The article highlights and considers this question, while focusing on the criminal law. It concludes that the answer is negative—there is no necessary relation between morality and law in this respect. Rather, there is a reason in favor of incorporating morality into the law only when this incorporation promotes a moral value that is independent of the law.