Argument and the "Moral Impact" Theory of LawWashington University Jurisprudence Review (2019)
The new Moral Impact Theory (“MIT”) of law is novel, innovative, and influential. Its progenitor, Mark Greenberg, intends MIT to supersede the longstanding divide in legal philosophy between legal positivism (in its various guises) and natural law theories, most notably that of Ronald Dworkin. MIT claims that the moral impacts of legal institutional actions, rather than the linguistic content of “rules” or judicial or legislative pronouncements, determine law’s content. MIT’s corollary is that legal interpretation, hence legal argument, consists in the inquiry into what is morally required as a consequence of the lawmaking actions.
This paper challenges MIT by critiquing its attendant view of the nature of legal argument. Points including the following: (1) it is not practicable to predicate law’s content on the ability of legal officials to resolve moral controversies; (2) it would be impermissibly uncharitable to claim that participants in the legal system commit widespread error in failing to regard moral argument as the focus of legal interpretation; (3) whereas the legal official may initially respond to a conflict at the intuitive moral level, she must resolve the controversy at the deliberative, critical level, at which moral and legal thinking diverge; (4) because no two cases are precisely alike, and owing to the open texture of natural language, reference to extra-jurisdictional “persuasive” and “secondary” authority permeates legal argument, yet, nearly by definition, such linguistic sources cannot have engendered significant moral impacts in the home jurisdiction; and (5) one way or another, we ultimately arrive at linguistic contents.
The paper concludes by suggesting a more apt theoretical understanding of the moral impacts engendered by legal institutional actions. There is no question that legal institutional actions have moral impacts, and generate moral obligations. Officials are obligated to adhere to certain constraints in their treatment of one another, cases, litigants and citizens. Less explored, however, have been the ways in which legal pronouncements likely morally impact the community, beyond the issue of a duty to obey the law. Communities have their own argumentative structures for grappling with the moral impacts of legal institutional actions.
- legal philosophy,
- legal theory,
- moral philosophy,
- legal argument,
- social ontology,
- Mark Greenberg
Publication DateSpring 2019
Citation Information11 Wash. U. Jur. Rev. 293 (2019)