When Law Becomes Morality: Comments on Mark Greenberg's Moral Impact Theory of Law

Abstract

Mark Greenberg, in his article, The Moral Impact of (Yale Law Journal, 2014), offers a new and provocative understanding of law and obligation. His basic position is that legal obligations are a certain subset of moral obligations; under his approach, law is moral impact of the relevant actions of institutions. Greenberg's approach is in sharp contrast with what he calls Standard Picture, a view that is assumed or accepted, but rarely argued for, in connection with most of the currently popular theories of the nature of law, as well as likely being implicit in the way most non-theorists and non-practitioners think about It is important in evaluating Greenberg's work to distinguish what is new -- and controversial -- from what is not new, and thus likely to be less controversial. One theme that is important to Greenberg's analysis, but which is distinctly not new, is the argument that the actions of officials can change our moral profile. What is new is labeling the effects on our moral profile -- and only those effects -- as law. In this brief Response, I argue that Greenberg has not justified this large change in existing practices, and that a focus on changes in moral profiles create problems at least as intricate as does Standard Picture it means to supplant.