Too many rules

Abstract

ABSTRACT The main thesis of Scott Hershovitz's recent book is in its title: Law is a Moral Practice. By this, Hershovitz means that legal practices aim to adjust people's moral relationships (and generally succeed in doing so). He further thinks that lawyers' arguments in court concern the precise moral effect of legal practices on the moral relationships of the parties. They are, in other words, moral arguments that aim to identify the parties' moral relationships, which implies that the rights and duties contested in court are moral rights and duties. To defend the thesis, Hershovitz focuses on cases or phenomena that seem best to fit the competing, nonmoral view, and show that, in spite of initial appearances, these too can be better accounted for by the moral practice view. This is a risky strategy for it does not allow for presenting the view at its strongest, and may encourage confusion over what the final position is. Indeed, it seems to me that Hershovitz ends up leaving an opening, an exit for his opponent that I think survives Hershovitz's arguments in favour of the moral practice view, and indicates that, in the end, the opponent has the better, more nuanced view.