Law and Morality in Contemporary Legal Philosophy

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A. Legislative versus Adjudicative Questions

The relation of law to morality looks very different if asked from alegislative, as opposed to an adjudicative, point of view. Vis-à-vis legisla-tion and other forms of law-making, the question is often put as thequestion of whether one should “legislate morality” (see Moore 2007,1538–41). The most interesting variant of this legislative question is that of proper legislative aim: is it a proper motivation of coercive legislation thatit prohibit immoral behavior for no reason other than that it is immoral?(see Moore 1997b, 67–73). Millian liberals answer this question negatively(ibid., 642–7, 751–4), whilst both social conservatives and perfectionistliberals answer it affirmatively (ibid., 647–65, 754–62).

Distinct is the adjudicative question, focused as it is on the law we have

and not on the law we ought to have. This is the question of whether thelaw we have—the law that obligates judges and other legal professionalsin their professional roles—is related to morality in some interesting way.As interesting and important as I have found the legislative question inother works,1 here I wish to focus on the adjudicative question.

B. Describing Existing Connections of Law to Morality, versus Recommendingthat Certain Connections Be Brought into Existence

Jurisprudence is often divided between descriptive and normative branches (see Moore 1988, 308–9). A descriptive jurisprudence askswhether the law as we presently conceive it and refer to it, is related tomorality. A normative jurisprudence asks whether the law as we think weought to conceive it and ought to refer to it, is related to morality. The firstseeks to analyze our present concept of law or the nature of law as wepresently refer to it; the second seeks to recommend a concept of law, ora kind of thing to be referred to as law, on various normative grounds.Herbert Hart, for example, recognized that one might recommend a

revisionist concept of law either for reasons of morality—some conceptsof law might be thought to bring about better citizen behavior in the faceof evil regimes if those concepts are accepted by those citizens, forexample—or for reasons of superior theory construction in social science(Hart 1958).

Ronald Dworkin has tried to put a third kind of jurisprudence into play,one that finesses this descriptive/normative divide in the name of an“interpretive jurisprudence” that is simultaneously descriptive and norma-tive (Dworkin 1986). But as I have sought to show in detail elsewhere

(Moore 1989b and 1995), this is a doomed enterprise. We jurisprudes arestuck with two possible enterprises here. My task in the present paper is

1 In addition to Moore 2007 and 1997b, see Moore 2005, 2009 and 2012.

436 Michael S. Moore

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on the descriptive side of this divide: I ask how morals is related to law aswe presently conceive of law and as we presently refer to it.

C. Relations between Law and Morality of Form, Content, (Obligatory) Force,Ontological Status

When one speaks of the relation(s) between law and morality in jurispru-dence, most often one is referring to a relation of content: a natural lawview of some such relation of content, for example, would assert that thepropositional content of law depends in some way on the propositionalcontent of morality. But other kinds of relationships are sometimes envis-aged. The grammatical form of both, for example, is sometimes compared,

the “logic” of both sometimes being thought to be that of expressingevaluations, for example (Wisdom 1951). Or the deontic logic of the two iscompared, Hohfeld (1919)’s famous correlatives and oppositions betweenrights, privileges, powers, immunities, disabilities, duties, no-rights, andliabilities being thought equally applicable to both. Or the ontologicalstatus of the two is compared, often finding that they are more like eachother than they are like the physical objects, events, states, properties, orrelations of the natural world.2 Or the reason-giving capacities and obliga-tory force of the two are compared, either with legal obligation being

subsumed as a kind of moral obligation (in the same sense that promissoryobligation is a kind of moral obligation, viz, a moral obligation created bya promise), or with legal obligation being conceived as a different genus of obligation than is moral obligation.3 Despite this prolixity in possibilities,my interest is the most usual one, on the relation(s) of content that may ormay not exist between law and morality.

D. Necessary Versus Contingent Connections between the Content of Law andthe Content of Morality

The clarificatory hurdle to be cleared here concerns the nature of theconnection that might be claimed to exist between the content of law andthe content of morality (hereafter, I will drop the “content” qualifier and

just speak of “law and morality”). It is sometimes said that there may well be a contingent relation between law and morality, but that such contingentrelation is not what is of interest in this context. What is of interest, it isfurther said, is whether there is some kind of necessary connection betweenlaw and morality. The thought is that little of interest can be established in

legal theory by doing particular jurisprudence (law in particular legal

2 The ontology of both is compared in Moore 1982, 1992b, and 2002.3 These two possibilities are a fair construal, respectively, of Hart and Austin. See Moore 1988,310–5.

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systems) alone. This is true even if the particular jurisprudence that is doneis done for all the cultures there are or have been in the world. Supposeevery legal culture has (or had) the following characteristics: for every

plausible moral argument there is a plausible constitutional law argument,and vice versa; there is judicial review, so that every statute or casedecision is subject to being overturned if contrary to the constitutional law(which is by hypothesis the same in content as morality). In such circum-stances, it could be said of each culture that an unjust law is not a law of the system and that an unjust decision does not determine the law of thecase decided. Even so, the relational thesis that results from this analysiswould not be of much interest because it would not have been shown thatlaw itself is connected to morality. The thought is that one has to affirm or

deny a necessary connection in order to make out a jurisprudentiallyinteresting, relational thesis.

The kind of contingent relation that is the contrast case here is what issometimes called an accidental generalization (Hempel 1965). An acciden-tal generalization is a generalization that is true of a finite sample size of things but the nature of the kind of things making up the sample does notmake that generalization necessarily true. “All American lawyers are underseven feet tall” is, as far as I know, true about the hundreds of thousandsof American lawyers that exist. Yet the generalization is not necessarily true

because it does not answer correctly the crucial counterfactual question, “If someone were over seven feet tall, would he not be a lawyer?” There is nonecessary connection between size and being a lawyer, only an accidentalconnection. Similarly, to observe that all legal systems we have seeninvalidate laws that are contrary to morality does not support the coun-terfactual (would there be law without this connection to morality?)needed to apply the generalization to all legal systems that could exist, andnot just those that have existed or do now exist.

E. Analytical versus Metaphysical Necessity in the Connection (or Lack of It)between Law and Morality

There are two kinds of necessity that might be proposed as being relevantto some allegedly necessary connection of law to morality (Moore 2002,665–72). The first is analytic necessity. “A bachelor is an unmarried man,”is thought to be an analytically necessary truth, because it is true by virtueof the meaning of its terms alone. The contrasting kind of necessity is SaulKripke (1980)’s notion of “metaphysically necessary.” Unlike the semanticnotion of analytic necessity, a metaphysically necessary truth is a truthdependent on how the world is and not exclusively dependent upon theconventions of human language use. “Water is H2O” is (as far as we know)a metaphysically necessary truth because something wouldn’t be water if it weren’t H2O. Put another way, one atom of oxygen bound to two of





hydrogen gives the essential nature of water. Such essence is not fixed bywhat English speakers picture or conceptualize when they say or think tothemselves, “water.” Such an essence is to be found in the nature of the

kind of thing that water is. We have theories about such essential natures, but theories can be wrong; definitions (analytical truths), which purport tofix such essences by conventional stipulation, could not be wrong.

Historically, descriptive jurisprudence has conceived of itself as seekinganalytically necessary connections (or disconnections) of law to morality. Inthis it has been a conventionalist about meaning. A conventionalist aboutmeaning believes that words like “tiger,” “gold,” “malice,” and “law” referto their respective things in the world only via a conceptual intermediary.That is, what determines what the word “gold” refers to—gold—is our

concept of gold. There are thus three things, on this view of meaning: gold,the thing, “gold,” the word, and “gold,” the concept.

Most often a concept takes the form of a list of criteria for a thing to begold, for example, “yellow, precious, malleable, metal.”4 Anything thatsatisfied such a list must (analytically must) be gold, and anything lackingthese properties must not be gold. On this view of meaning general

jurisprudence becomes a study of “the concept of law” or “the concept of alegal system”—to paraphrase the titles of the best-known books of thisgenre (Hart 1961; Raz 1972). For on this view of meaning one studies the

nature of the thing, law, by studying our concept of law (remembering thatlaw is whatever our concept of law fixes it as).The alternative theory of meaning under which I generally proceed

asserts that our concepts do not determine the reference of terms like“gold” or “law.” Rather, the theory is one of “direct reference” whereby“law” refers to law without some third thing intervening (see generallyPutnam 1975). The meaning of “law,” on this theory, is given by the natureof the thing referred to—law—and not by some concept of law that fixes(by linguistic or other social convention) what can be law.

The theory of direct reference has been defended elsewhere at lengthwith respect to natural kind terms like “gold” or “tiger” (ibid.). Whethersuch a theory of meaning properly applies to artifactual words like“pencil,” “lawyer,” or “law” is more controversial, for such kinds of thingsare often thought to lack any natural essence that can guide the meaningof such terms (see Munzer 1985; Schwartz 1978).5 What is included in theclass of such things, one might think, is wholly a matter of our conven-tions, conventions that can be fully stated as concepts (lists of properties) of pencil, law, etc.

Often those who adopt the conventionalist line on words like “law”confuse two different ways in which conventions might be relevant to the

4 Alternatively, some think that a concept is conventionally fixed by paradigmatic exemplars.See Gallie 1956.5 Compare Putnam 1975, 242–5; Moore 1981, 217–8; Moore 1985, 300–1; Brink 1989.





meaning of “law” (see Moore 1992b, 2443–5.). Such persons often confuseconventions being part of the nature of a thing, on the one hand, with ourlinguistic conventions (concepts) fixing that nature as a matter of analytic

necessity, on the other. Take the phrase “co-ordination solution,” as used bygame theorists. A co-ordination solution is a convention that forms aroundsome salient feature of a co-ordination problem. But that does not meanthat the kind of thing that can be a co-ordination solution is fixed by ourlinguistic conventions (concepts) about the correct use of the phrase,“co-ordination solution.” We study the nature of co-ordination solutions asa matter of better or worse theory; we do not study them only by attendingto the concept of co-ordination solution in use in our language.

Law is like this as well. It is plausible to think that institutional facts and

social conventions are at least part of the nature of law. That does not meanthat what we mean by “law” is determined by conventions of languageusage or of social practice. Quite the contrary, the meaning of “law” can beguided by the nature of the thing and not by any concept we may have of that nature, even if that nature plausibly includes social conventions.Accordingly, I shall not seek to tease out a concept of law with which torelate morality. I do not seek conceptual connections between the conceptsof law and of morality; rather, I seek metaphysical connections (includingthe metaphysically necessary truths of morality) between the nature of law

and the nature of morality.

F. The Connections of Morality to: the Existence of a Legal System (“Law”);the Validity of Individual Standards (“Laws”); and the Correctness of JudicialDecisions (“Laws of Cases”).

In his 1958 debate with Lon Fuller, Herbert Hart fruitfully distinguishedthree levels of generality in different senses of “law” (Hart 1958, 600–1). Inthe context of discussing the law from which morality is separated (accord-ing to legal positivism), Hart distinguished: (a) law, in the sense of legalsystem, from (b) laws, in the sense of the individual statutes or commonlaw rules that may exist in a legal system, from (c) the law of a case, in thesense of that singular proposition of law that decides a particular case.

The distinction between laws and the law of a case can be seen in termsof the (logical) generality of the legal proposition involved. When we usethe word “laws,” we refer to those standards describable by what I shallcall general legal propositions. There is commonly a legal rule, forexample, that a non-holographic will must be subscribed to by at least twowitnesses in order to be valid. A general legal proposition is one whichasserts the content of such a rule, thus: “All non-holographic wills must besubscribed to by at least two witnesses to be valid.” A singular legalproposition, by way of contrast, picks out a discrete individual, event, orstate of affairs, and predicates of it some legal attribute. For example: “This





will (referring to a particular document executed by a particular testator)is valid.” The difference between the two kinds of legal propositions is amatter of logical form. A general proposition uses universal quantifiers (for

example, “all wills”) while a singular proposition singles out (by use of definite referring expressions such as proper names, demonstratives, ordefinite descriptions) one particular thing in the world for legal charac-terization. In the example given, “this will” picks out one particular thingin the world.

Judges need singular legal propositions in order to decide cases. In a willcontest, what decides the case is the truth of singular propositions such as,“this will is valid” or, “this will is invalid.” The truth of certain generallegal propositions has a bearing on the truth of such singular legal

propositions; but it is the truth of the latter that decides particular cases because it is only the latter kind of propositions that refer to the particularparty or transaction before the courts in individual cases (and thus candirect a remedy to that party or with the respect to that transaction). I thuscall the law expressed by such singular legal propositions the “law of thecase.”

Law is a yet more general notion than laws. Here, one’s concern is aboutthe conditions that must be present before law as such is present. Thequestions, “When is there law?,” or “Does this society have law?,” or

“When do we have the rule of law?,” are invariably questions about whenthere is a legal system.6 It is idiomatic in English to call the systemic notion,law.

Although there is fruitful work to do at all three levels of generality of law, in what follows I shall focus on the least general of the three, thesingular propositions of law that are decisive of particular cases. I do this

because of the practical interest such propositions have for us, as I detail below in Part II.

G. Law as Such versus the Law of a Particular Legal System

The last clarification has to do with the distinction between general versusparticular jurisprudence (Austin 1954). Hart from first to last saw himself as doing what John Austin would have called “general jurisprudence.”Such jurisprudence “is general in the sense that it is not tied to anyparticular legal system or legal culture [. . .].” The thesis underlying sucha general jurisprudence is that “this institution [law], in spite of manyvariations in different cultures and in different times, has taken the samegeneral form and structure” (Hart 1994, 239–40).

Particular jurisprudence, by contrast, studies law as it is conceived andpracticed within a particular legal system or legal culture. Here one seeks,

6 So argued in Raz 1972.





not the “general form and structure” of law as such, but rather, whether forexample law in the United States consists of more than statutes, includingperhaps the Constitution and the common law of judges.

An easy way to miss this distinction is to think that Hart must reallyhave been charting the English concept of law, whatever his pretensionsto generality might have been. This argument, popular among studentsintroduced to Hart’s book for the first time,7 goes like this: Hart is usinga concept of law derived from the English language and from Englishlegal practices; no matter how universal may be the intended applicationof this concept, the source of the concept cannot be hidden; Hart is reallyasking when other cultures have “law” in the sense the English think theyhave law; his jurisprudence is thus parochial despite its cosmopolitan

ambitions.The problem with this attempted demotion for Hart’s general jurispru-

dence is the problem with all such modestly conceived social science.8

Modest social science desperately wants to be fair to the differing socialpractices of other cultures. It thus thinks that somehow we are imposingsomething on other cultures if we impose our categories on their practices.For example, if we are studying religions around the world, we shouldn’timpose our concept of religion onto other cultures; we should use theirconcept of religion. Perhaps their mating behaviour is really a religious rite

for them, by their concept of religion even if not by our own.This is pretty obviously dotty, even if well intentioned in its attempt to be liberal. Social science cannot proceed with such conceptual anarchy. If we want to compare institutions such as law or religion in differentcultures, we will have to have some idea of what law or religions are. Wewill have to have some idea about what functional or structural featuresmake an institution of one kind rather than another to have any chance of studying the same kinds of things in our cross-cultural studies. We have atleast to start with a provisional theory about the nature of such kinds inorder even to know what to look for. That such theory is influenced by ourown cultural conditioning is true but harmless. Our best theories of anything have such influences behind their acceptance, but to let the factof such influences undermine our confidence that this is the best theory isa fallacy—indeed, one with its own name, the “genetic fallacy.” Hart’sgeneral jurisprudence is thus secure against what I have called the “stand-ard sophomore objection.”

Internal jurisprudence is exemplified in the work of Ronald Dworkin.Dworkin eschews Hart’s general, external jurisprudence. Dworkin

7 The first-year graduate students who took my and Waldron’s introductory jurisprudenceseminar in the Jurisprudence and Social Policy Program at UC-Berkeley introduced me to thisreaction to Hart.8 I describe such “modest” social science in Moore 1984b.





recognizes that the historian and the sociologist will do their theorizingabout law from a point of view that is external to the practice of law inany legal system (Dworkin 1986, 13–4). Dworkin recognizes that some

have tried to do jurisprudence from that external perspective, givingHolmes as an example (ibid., 14). Yet finding jurisprudence of this sortto be “perverse,” “impoverished,” and “defective” (ibid.), Dworkinfirmly takes up the task of an explicitly internal jurisprudence.

This is jurisprudence explicitly done from within one’s own legal system.Here theoreticians will vicariously share with practitioners in their legalsystem the concern with their law, not law in general. It is because of thisthat Dworkin sees jurisprudence as being continuous with law practice.Legal theoreticians trying to account for their own system’s law are making

the same sorts of claims and arguments as practitioners, the only difference being in the generality of the issues dealt with by theoreticians: “Jurispru-dence is the general part of adjudication, silent prologue to any decision atlaw” (ibid., 90).

Given internal jurisprudence’s focus on one’s own law, not surpris-ingly such a jurisprudence also eschews analysis of law in the sense of legal system, for the other two, less general notions of law Hart distin-guished in 1958, namely, laws and laws of cases (Hart 1958, 600–1).Dworkin calls both of these, “propositions of law,” which are “all the

various statements and claims people make about what the law allowsor prohibits or entitles them to have” (Dworkin 1986, 4). Laws Dworkincalls general propositions of law, and laws of cases Dworkin calls con-crete propositions of law (ibid.). Both are the sort of law one cares aboutif one is an American wondering what his legal rights and duties may

be under US law. Dworkin is also explicit that his is a viewpointwithin a particular role within his legal system, and the role is that of the judge (ibid., 18). As Dworkin (ibid., 18–9) puts it, we should do our

jurisprudence:

from the judge’s viewpoint, not because only judges are important or because weunderstand everything about them by noticing what they say, but because judicialargument about claims of law is a useful paradigm for exploring the central,propositional aspect of legal practice. Citizens and politicians and law teachers alsoworry and argue about what the law is and I might have taken their arguments asour paradigms rather than the judge’s. But the structure of judicial argument istypically more explicit, and judicial reasoning has an influence over other forms of legal discourse that is not fully reciprocal.

Dworkin’s internal jurisprudence thus continues what H. L. A. Hart oncecalled “a concentration almost to the point of obsession, on the judicialprocess” characteristic of American jurisprudence (Hart 1983, 123).Whether this distinctively “American obsession” in jurisprudence is a goodidea I shall address briefly in Part II.





H. Pinpointing My Own Work’s Sense of the Question, How Does LawRelate to Morality?

With two exceptions the focus of my question here (and the focus of muchof my prior work on the law/morals connection) is easily charted alongthese seven dimensions. I wish to ask an adjudicative question, not alegislative one; a descriptive question, not a normative one; a content-relation question, not a question of form, force, or ontological status; to theextent the relation is a necessary one, a question of metaphysical necessity,not of analytic necessity; a question about singular propositions of law, andnot (directly at least) about either laws or law (legal system). In two of these seven respects, however, I think my question asked here, and priorwork on it, are more difficult to locate.

Early on Ruth Gavison (1987, 26 n.5) recognized that my own brand of jurisprudence was not easily classified by the general jurisprudence/particular jurisprudence distinction. On the one hand, my focus has beenon the singular propositions of law that decide concrete cases, usually amark of particular jurisprudence; on the other hand, I have not confinedmyself to arguing how American judges should reason, nor even how

judges in any Anglo-American system should reason. Rather, I have takenmy prescriptions to be perfectly general, universal to any system of law.Despite this universality, my work is not usually classified as general

jurisprudence. As Gavison (ibid.) observes, “Although such discussion isnot system-dependent, and it might be presupposed by all law and legaltheory, it is not part of what is classically called ‘general jurisprudence.’ ”I suppose one could call this a general theory of adjudication, to comple-ment Hart’s general theory of law.

Gavison’s comment also raises an arguable straddle in my work of thecontingent/(metaphysically) necessary line. I am inclined to see the fiveconnections (of law to morality) that I chart below as being necessary to allpossible legal systems. But this itself will involve some controversial claims

about law’s essentially justice-seeking nature. And even if these claims aregranted, the extent to which law will be related to morality in these fiveways will surely vary, depending on contingent, non-universal truthsabout particular legal systems.

II. Why Is This an Interesting Question?

Separate from the “what?” question is the motivational, or “Why?” ques-tion: What makes the focus on how judges should or must do moralreasoning in order to do legal reasoning, of such interest to jurisprudence?One answer, true here as throughout the academy, is the George Mallorystyle of answer: when asked why he wished to climb Mt. Everest in the1920’s, Mallory is reported to have replied, “because it is there.” Knowl-





edge for knowledge’s sake is always a kind of answer to such motivationalquestions. Yet by its very generality of application, it is also always anincomplete answer. Granted, satisfying a natural curiosity about the world

in which we live—including the social and legal world—is a worthymotivation. Yet that usually is insufficient to explain and to justify why oneis curious about any one topic, such as the relation of legal to moralreasoning—rather than other topics, such as the properties of Helium-3 atvery low temperatures, the general criteria of there being a legal system,the kind of reasons that moral properties give to rational actors, and so on.How we choose from the rich cornucopia of interesting topics to exploreremains unanswered by the Mallory-style answer.

An alternative answer might be sought in the peculiarly interesting

nature of judicial reasoning. Yet the focus of American jurisprudence onsingular propositions of law, and thus on how judges should reason to

justify them, is not justified by some mysteriously fascinating character to judicial reasoning. “Thinking like a lawyer” is not, considered purely as amatter of psychology, much more complicated or mysterious than is“thinking like an artist,” or “thinking like a legislator.” The one-hundredyear preoccupation with judicial reasoning of American jurisprudence is notto be justified in this way. Rather, that focus is justified by the fact that how

judges reach their conclusions in law cases—how they make true9 those

singular propositions of law that are decisive of those cases—determineswhether or not those ideals going under the name of the rule of law,democracy, and the separation of powers, are possible of realization.10 Suchideals are threatened by the connectionist facts here examined, because if

judges no less than legislators must take morality into account as theyreason to their respective forms of legal conclusions, then judges must dosome of what legislators must also do. Singular propositions of law for

judges must be related to that morality differently than are those generalpropositions of law the business of law-makers, if we are to have the ruleof law, the right of the majority to rule in a democracy, and the separationof powers along the functional lines of Montesquieu’s political theory.

To see this, consider two hypothetical judges, both made famous by theanalogous baseball umpires. The motto of the first judge is “I call them likeI see them.” The motto of the second judge is: “They ain’t nothing until Icall them.” The second judge is a skeptic about antecedently true singularpropositions of law constraining her decisions. Such propositions may insome sense be made true by judicial pronouncements in cases, but theyhave no truth-value antecedent to the judge giving them one by herdecision. If this were true, judges would be free to remake the choices of either legislators or prior judges.

9 Sort of “make true”—see section III C below.10 Argued for in Moore 2003, 28–32.





As two generations of skeptics in America (the Legal Realists and theCritical Legal Studies types) should have convinced us, this skeptical viewof judging has serious implications for democracy, separation of powers,

and the rule of law. If singular legal propositions have no truth-valueantecedent to judicial decision, judges cannot be obligated to discover suchtruths, nor can they in fact be doing so. Rather, they are free to make it upas they go along, without possibility of mistake. Such unrestricted judicialfreedom is compatible neither with the idea that we are governed bydecisions of the majority of us, as expressed by our elected representatives,nor with the idea that ours is a government of laws and not of men, inAristotle’s ancient formulation of the virtues of the rule of law. Nor is suchskepticism compatible with Montesquieu’s ideal of separating powers by

their separate function: making broad social choices is supposed to be adifferent functions than applying such choices already made by others.

Such considerations are what to my mind justify the focus of American jurisprudence on the question that interests me: How does morality relateto those singular propositions of law decisive of concrete law cases?

III. How Does Morality Relate to the Singular Legal Propositionsof Law That Decide Particular Cases?

I have long thought that this question of how law is related to morality is best approached through judicial obligation. Provisionally at least, fix lawas that which obligates judges in their role as judges, and then ask: Howought judges use morality in their decision of disputed law cases? Soproceeding temporarily suspends the question of whether such morality—the morality judges are obligated to use in their role as judges—is or is notpart of the law. By stipulative definition, assume for now that it is, andthen ask the more immediately practical question: In what way(s) are

judges obligated to use morality in their judicial decisions? In the nextsubpart we can return to the question of whether the morality judges are

obligated to so use, is or is not part of the law.

A. Morality in Judicial Reasoning

I have killed as many trees as anyone on this topic, with over-long and ratherelaborate argumentation (see Moore 2007, 1989a, 2001a, 2001b, 1997a, 1985,1981, 1987, 2008). Yet at the end of the day it seems to me that there are onlyfive not very complicated ways that morality properly enters judicialreasoning. The first two stem from what I will call “the obvious law”—the

stuff (like statutes) that everyone’s theory of law would classify as law.11

11 Well, almost everyone: John Chipman Gray called such things the “source of law,” to bedistinguished from the law itself (which consisted of judicial applications in particular cases).See Gray 1909, 145–227.





1. The Explicit Incorporation of Morality by Obvious Law

First, there is the explicit incorporation of morality by such obvious law(see Moore 1989a, 132–7; 1981, 242–6; 1985, 332–8). When statutes awardcustody of minor children to that parent most likely to further the bestinterest of the child, award citizenship only to those applicants possessedof good moral character, and deport those convicted of crimes of moralturpitude, they explicitly require judges to make moral decisions in thecourse of their making legal decisions. Likewise, when constitutions suchas that of the United States require judges to review statutes to see whetherthey give the process that is due to persons, protection of the laws that isequal, and respect each citizen’s rights to free speech, free exercise of religion, freedom from unreasonable searches and seizures, and so on, they

require judges to reach legal conclusions based on moral premises. Simi-larly, when the common law makes tort liability turn on whether one

behaved reasonably, or contract liability turn on whether a party has kepthis implied covenant of good faith and fair dealing, or when statutory law

justifies what would otherwise be criminal conduct by a balance of evilsdefense, judges must make moral decisions in order to make legaldecisions.

Such explicit incorporation of morality by the obvious law poses prob-lems for some kinds of positivistic theories of law,12 but taking sides in

such domestic debates is not here my concern. Irrespective of whether ornot a legal theory can accommodate the fact and remain positivistic, it isunquestionably true that judges in legal systems with obvious law likeours have to make some kind of moral decisions in order to apply suchlaws to the cases before them.

2. Morally Justifying the Authority of Obvious Law

Second, there is what I shall call the regressive considerations of the

thoughtful judge.13

Judges make people do things they do not want to do.With all the force of the state behind them, they coerce people into givingup their money, their liberty, their children, and their lives. Such coercionrequires justification. The immediate justification for each occasion of

12 The question currently debated is whether positivism can accommodate such explicitlymoral content to the law, “soft” positivists urging that it can and “hard” positivists urging thecontrary.13 Hart and Kelsen were of course quite alive to the worries I am calling “the regressiveconsiderations of the thoughtful judge.” They famously sought to end such regress of

justification with their ultimate tests of legal validity, the “rule of recognition” and the“Grundnorm.” Lon Fuller accurately pinpointed this as a weak point of positivism, urgingthat surely these constitutional norms themselves called for a moral justification in order to

be authoritative for judges (Fuller 1958, 639). Dworkin then expanded Fuller’s argument,tentatively at first (Dworkin 1978, 36–8), and then more completely in his later “Hard Cases”article (ibid., 105–23).





judicial coercion is of course the (obvious) law itself: a judge might justifyhis judgment in a particular criminal case, for example, by a penal statutewhich it is his office to apply. Or a judge might justify her decision in a

contract case by the likeness of the case before her to an earlier casedecision which acts as a precedent for the present decision. But thethoughtful judge regresses the question of justification: what justifies the

judge in regarding that criminal statute as imposing this obligation uponhim? What justifies the judge in following the decision in the precedentcase? The answer is presumably in terms of some doctrines of legislativesupremacy and the ban on common law crimes, in the first instance, andthe doctrine of stare decisis, in the second. But what makes those doctrinesa source of judicial obligation? Presumably, some political ideals such as

democracy, the separation of powers, the rule of law, equality, and sub-stantive fairness. By this time the thoughtful judge is deep into themorality of such ideals even in applying the most obvious law to the mostobvious cases.

The difference between a natural lawyer and a positivist does not lie inhow judges should be thoughtful about the source of their obligations.Rather, the difference lies in seeing such ideals as the rule of law, democ-racy, and the separation of powers, as part of the standards that obligates

judges in their role as judges, or, by contrast, as reasons not part of such

standards even though they are reasons for playing such a role to startwith. Consider a work-week metaphor: the positivist sees the judge whileoff the bench on Sundays, sitting by Hume’s reflective fireside musingabout the role of judging. The thoughtful judge sees that, as a person, sheneeds to justify the coercive job she does on Monday through Friday, andthat the justification for continuing this job lies in ideals like democracy, theseparation of powers, and the rule of law. Yet on Monday morning whenshe steps into role by putting on the judicial robes, those ideals drop awayas she does her job. The ideals justifying the playing of the role, in otherwords, do not enter into how the role is played. The baseball umpire (toadopt the simple-minded simile of America’s Supreme Court Chief Jus-tice)14 may have to use morality to justify being an umpire at all, but oncethat is done and he is behind the plate, the values justifying his playingthat role have no purchase on how to call the balls coming over the plate.

This attempt to cabin the recourse to morality by judges—they may usemorality to justify the role but not use morality in playing the role so

justified—sounds better than it is. I shall defer saying why until Section 6 below, when we will have before us all five ways in which morality enters judicial reasoning.

14 “Confirmation Hearing on the Nomination of John G. Roberts, Jr. To Be Chief Justice of theUnited States: Hearing Before the Senate Committee on the Judiciary,” 109th Cong. 55 (2005)(statement of John G. Roberts, Jr., Nominee, Chief Justice of the United States).





3. Morality in Hard Cases

The third way that judges are obligated to use morality is a very familiarone. It stems from the inevitable indeterminacies of the obvious law.

Jeremy Bentham proclaimed that ideally we would draft a book of laws socomprehensive that citizens need but open the book to know the legalconsequences attached to any possible action by them (Bentham 1945, 343).Bentham projected a ten-volume treatise on the science of legislation thathe wanted to write, although he only completed the first of these volumes.But we all know that even if he had completed all the ten volumes, andeven if he had written the code such volumes would have outlined, hisambition would have been hopelessly frustrated. “Fact is richer thandiction,” J. L. Austin once opined (Austin 1956, 21). The diversity of cases

that inevitably arise outstrips the vocabulary and the imagination of anylaw-giver, no matter how talented.

Such indeterminacies make for what Lon Fuller called a “hard case”(Fuller 1958, 661–9).15 They are usefully grouped into three kinds.16 The firstkind consists of true cases of first impression, cases where there is noobvious law having any bearing on how such cases should be decided.Whether a spleen with unusual DNA (worth three billion dollars) can beproperty,17 whether surrogate motherhood contracts are valid,18 and thelike, are arguably such kinds of cases. In such cases we have run out of

obvious law: there are no statutes having any bearing on the case, andthere are no decisions in prior cases that are at all similar to the presentcase.

A second kind of hard case also involves a lack of determinate law, buthere the lack is not total. Suppose first that the obvious law consists of astatute that is both relevant to the decision of the case at hand, and not inconflict with some other, equally relevant legal standard. Such statutorylaw may yet be indeterminate. I refer to the well known vagaries in themeanings of terms used in legal standards. Framed as such standards are

in natural languages such as English, they are heir to the vagueness,ambiguity, metaphor, and open texture which infect all such naturallanguage. This is such well trod ground that surely it needs little elabo-ration (see Moore 1981, 181–202). Nor does the implication for judicialdecision-making: in such statutory hard cases judges must make moral

judgments in order to pass legal judgment.Turning from statutory to common law, suppose there is a precedent case

“in the neighborhood,” but the case up for decision is not on all fours with

15 I have eschewed Dworkin’s derivative notion of hard cases because he conflates trulyindeterminate cases with cases that are quite determinate under obvious legal materials butare morally absurd.16 Joel Feinberg divided hard cases along somewhat similar lines. See Feinberg 1995, 91.17 Moore v. Regents of the University of California, 793 P.2d 479 (Cal. 1990).18 In re “Baby ‘M,’ ” 525 A.2d 1128, 1157 (N.J. 1987).





the precedent case. The indeterminacy here is rooted, not in the vagariesof natural language meaning as it is for statutes, but in the indeterminacyof specifying the holding of precedent cases. There is indeterminacy in

specifying such holdings for two reasons: first, there is no canonical text forcase holdings (as there are for statutes and constitutional texts); andsecond, when subsequent judges thus necessarily make their own gener-alizations about the rule of law for which a precedent case stands, they facean indefinitely large number of possible generalizations that cannot beruled out by the obvious law (see Moore 1987). Judges thus have consid-erable leeway to distinguish a precedent case rather than follow it, a powerunchecked by the formal content of obvious law.

In cases of indeterminacy of this second kind, what would we have a

judge do? Should he flip coins? Have trial by combat? See whether theparties or their witnesses float when weighted down and immersed in apond? Surely recourse to morality to decide such cases is not just prefer-able but obligatory on judges, as against recourse to arbitrary decisionprocedures such as these. In such a way morality enters into judicialdecision-making (again, leaving aside whether, apart from my stipulation,one wants to call the morality so used, “law”).

Too much law can be as bad as too little law in creating indeterminacy.A third kind of indeterminacy arises when the obvious law contains two

or more legal standards that apply to a give case, yet these standardsrequire that incompatible legal remedies be given (see Moore 1981, 198–9).If there is no priority rule between such standards, then the obvious lawis without resources to decide this kind of a case either. As with cases of first impression and cases of statutory or common law indeterminacy, heretoo judges must use morality to render legal judgment.

4. The Spirit or Purpose of a Law Overruling the Letter or PlainMeaning of That (Otherwise) Obvious Law

The fourth and fifth ways in which morality enters the law are the mostinteresting, both intrinsically and because they are the most controversial.Consider cases in which there is only one relevant legal standard, thuspresenting no problem stemming from a conflict of legal standards withinthe obvious law; further, that standard incorporates no moral evaluationsin its terms; and further, that the applicability of some precedent case to thedecision of the present case is not open to serious doubt. The legal

judgment in such obvious applications of such non-conflicting, relevant,clear legal standards thus need involve no moral judgments by judges(holding in abeyance the second point above, the moral judgments neededto justify the obligatory force for judges of such obvious legal standards).

Yet in some of such cases the obvious law cries out to be saved fromitself. In some of such cases the obvious application of the obvious law will





be obviously wrong—unjust, otherwise immoral, contrary to what any lawmaker could have wanted, contrary to a rule’s purpose, or just plain stupidor absurd. I divide this distinct category of “hard cases”—cases where the

obvious law is not indeterminate but it is stupid—into two kinds. The firstis when the obvious law frustrates the purpose or value that makes senseof that very law. The second is where the obvious law contravenes othervalues that are more important than the value(s) served by the particularlaw at issue in the case. I shall consider the purpose aspect first in thissubsection, and the all-things-considered value question in the next suc-ceeding subsection.

With regard to a rule’s purpose or “spirit,” a judge must check whateverprovisional decision she has reached (from the ordinary meanings of some

statutory text or the implications of some precedent case) with an idea of how well such a decision serves the purpose of the rule in question. LonFuller (1958) reminded us (from Aquinas’ earlier work) of the necessity forasking this question of purpose in his famous 1958 debate with H. L. A.Hart. True, Fuller made the argument for purposive interpretation onlyagainst what he took to be Hart’s plain-meaning approach based onstandard instances. But Fuller’s argument is much more general than that.It applies against any kind of ordinary meaning or any kind of preestab-lished legal meaning (whether case law or statutory) ever being a sufficient

basis on which to decide a case. One can get consequences contrary to thepurpose of some statute no less with legislative definitions, or with anill-considered line of prior interpretations by the courts, as with ordinarymeanings. In all such cases a court must reserve to itself the power tooverrule these formal ingredients in interpretation, for doing so makespossible a decision that will better serve the rule’s purpose. In doing thisa judge will be making a value judgment, one balancing the values thatargue for following antecedent meaning, ordinary or legal, and the valuesthat argue for not doing so in order to effectuate the rule’s purpose. Inaddition, as I now propose to show, even the judgment ascertaining thepurpose of some legal rule is itself a value judgment.

The purpose behind some rule is not a psychological state of anyindividual or group of individuals. Nor is it some conventionalist’s anthro-pomorphic reconstruction of the state of mind a legislature or prior courtswould have if such bodies were but one person. Rather, the purpose a ruleserves is the function it serves in our society (Moore 1981, 258–65). A rule’sfunction is partly a matter of fact but largely a matter of value. The factualpart comes when one looks at a rule and asks what its likely consequencesare in society. This is a matter of knowing causal connections, itself amatter of scientific fact. The passage of a statute, for example, has manylikely consequences in this world, just as does any event. To honor one of these as the purpose (function) of the statute one must have some principleof selection. The principle we use everywhere in our function assignments





is to ask whether the likely consequence we are considering as a rule’sfunction itself causally contributes to an end state of some system that wethink to be good and worth preserving or achieving.19 In the case of human

hearts we say that their function is the circulation of blood. We pick thisconsequence of the heart’s activity as its function over other consequences,such as making noise in the chest cavity, just because this consequenceitself causally contributes to physical health, a desirable end state for thehuman body. Analogously for statutes, we pick as their function that likelyconsequence of their passage that itself causally contributes to a bettersociety. The ultimate end state toward which all statutes should contribute,as Max Radin (1930) reminded us long ago, is justice.

In formulating the purpose for a statute or other text there is admittedly

something of a circle to be traversed by the interpreting judge. For theprediction of the likely consequences of a statute’s passage depends in partupon there being some interpretation already having been placed upon it.Yet this interpretation is dependent in part on what the likely consequencesof the statute are (for remember, it is only these likely consequences thatare eligible to be considered the statute’s purpose and that can influencethe statute’s interpretation). This is not a vicious circle, however, becausethere is a place to get on. A judge starts with ordinary and antecedent legalmeanings in order to give the rule a provisional interpretation; under that

interpretation purposes may be sought. If the judge can find none thatserve the ultimate ends of a just society, he must start again with a bit morestrained reading of the words of the text. Less ordinary meaning, or a morestrained reading of statutory definitions and precedent, will be traded off against a better purpose. At some point the judge will reach equilibrium

between the rule of law virtues supporting ordinary meanings and fol-lowing precedent, and the substantive good at which the purpose he isfinding should aim. If the strain on meaning is harsh enough, a judge may“overrule” the ordinary meaning by acknowledging that this is a term of art in the law, guided by the law’s special purposes and not by ordinarymeaning. Analogously, if the strain on precedent is great enough a judgewill not reconstrue the holdings of prior cases but will explicitly overrulethem. In each such instance the judge checks the provisional interpretationyielded by the formal ingredients of meaning and precedent with thevalue-derived notion of the rule’s purpose.

The values needed to assign purposes to rules in this way are nothingless than a worked-out blueprint of the good and just society. For only inlight of such an end state can a judge meaningfully pick between thosemany likely consequences of a statute’s passage and assign some subset of those as its purpose(s). The moral case for any interpreting judge’s usinghis values to find purposes in this way is that there is no real alternative.

19 I discuss function assignments in Moore 1984a, 26–30, 189–194. See also Moore 1992a.





The judge cannot look to the actual intentions of the legislature because itdid not have any (see Moore 1981, 265–70). Some conventionalist’s recon-struction of the intelligible purposes a legislature could have had is not

helpful because there will either be too many intelligible ends, or too manyin conflict, to pick a small set (see Moore 1985, 348–9, 351–2). To usepurpose at all (as a judge must do to save any interpretation from thesilliness of literalism), necessitates the construction of a theory of a goodsociety and the search for purposes that contribute to that.

5. The “Safety Valve” Question Asked to Prevent Injustice

Often unnoticed by those extolling the virtues of purposive interpretationis that another kind of value judgment is needed to round out a completetheory of adjudication. This is the judgment that not only checks meaningand precedent, as does purpose, but also checks purpose itself. Consider acase the United States Supreme Court decided a century ago, United Statesv. Kirby.20 Kirby was a county sheriff who had stopped a riverboat that wascarrying the United States mail. He had done so in order to arrest a federalmail carrier, who was on duty; the sheriff had a warrant outstanding forthe carrier’s arrest for murder. Despite the obvious good sense of arrestinga wanted murderer wherever he could be found, Kirby was prosecutedunder a federal statute making it a crime to “obstruct or retard the passage

of the mail, or any driver or carrier.”21

By the ordinary meaning of the words “obstruct or retard,” Kirby bothobstructed and retarded the United States mails. Furthermore, the purposeof the statute may plausibly be taken to be the promotion of the free flowof mail. Such a purpose would be furthered somewhat by preventinginterferences such as that by Kirby. Yet obviously other values are impor-tant here. Society was surely bettered by getting a suspected murderer off the street (or the river) even if the mail was a bit slower. And surely Kirbyreasonably relied on just such a judgment being morally correct. It would

make society worse, and it would be unjust to Kirby, to interpret the statuteso as to make it cover his kind of case. Yet the only way not to include hiscase is to recognize that there is a general “safety-valve” question of justicethat must be asked in all interpretation.22 As described by the Court in

20 74 U.S. (7 Wall.) 482 (1869).21 Ibid., at 483.22 This is not quite true in criminal law. An alternative vehicle for saving the legislature fromitself in criminal law is the general balance of evils test for justified criminal actions. SeeModel Penal Code Section 3.02 (Proposed Official Draft 1962). Under such a provision, onewould concede that Kirby’s arresting of the mail carrier was an “obstructing” and a“retarding” of the passage of the mail, as those terms are used in the federal statute, butexempt Kirby from punishment because his (otherwise criminal) act was justified. By usingthis route, one’s interpretive theory need not include the safety-valve question of justice

because that question will be asked anyway, after the statute has been interpreted, in thedefense of balance of evils.





Kirby, “[a]ll laws should receive a sensible construction. General termsshould be so limited in their application as not to lead to injustice,oppression, or an absurd consequence.”23

The argument in favor of a court asking this last safety-valve question isto prevent injustice. Because any system of rules interpreted solely by themeanings of words, their prior interpretations, and the purpose of the rulesin which they appear, will produce instances of such injustice, the case foradding this last question is just to prevent it.

Because of this there has thus always been a strong cadre of legaltheorists who urge judges to save the obvious law from itself. Judges areurged to overrule outdated or badly reasoned precedents, and overrule theplain meaning of statutory or constitutional language. Aquinas talks of

overruling the letter of a statute with its spirit (see Aquinas, SummaTheologica, First Part, Part II, Q. 96, Sixth Article: Aquinas 2002, 67–9), Fuller(1958, 663), of using the purpose of a statute and not its ordinary Englishsemantics, Dworkin (1978, 14–130), of prioritizing a principle over a rule,and Cardozo, of saving the common law from rigidity in the face of changes in what Holmes called “the felt necessities of the times” (seeCardozo 1921, Lecture III). These all come to much the same thing: a judgeshould use morality to declare the obvious law not to be what obligateseither him or the citizens he judges, in cases where the obvious law leads

to such absurd results.There is of course a dissenting view here. St. Augustine urged judges tostay with the letter in such cases—otherwise, Augustine argued, theyarrogate to themselves the power of the law giver.24 Similarly, judges in ourown times have urged their fellow judges to stick with the obvious law, nomatter how absurd its applications. Chief Justice Warren Burger famouslydeclared that it was not the job of a judge to prevent the threat to thesurvival of an insignificant species of snail darter from rendering useless aone hundred million dollar dam;25 Seventh Circuit Judge Frank Easter-

brook (1995) has said he would send the state sheriff to jail for obstructingthe mail in the Kirby case earlier referenced; if he could have gotten the

There is an analogous criminal law doctrine that arguably makes the purposive safety-valvequestion equally superfluous. In some jurisdictions a criminal defendant is excused frompunishment if punishing him would not serve the purpose of the statute he violated. Again,one could leave the purpose question out of one’s interpretive theory because one knew that

just that question would be asked anyway at the level of excuse.We should see both of these criminal law doctrines as partial legislative recognition of the

importance of asking somewhere the safety valve question of purpose and justice. That suchquestions are sometimes formally allocated to issues external to interpretation is of littleimportance in this context.23 74 U.S. (7 Wall.) at 486.24 Augustine is so quoted in Aquinas, Summa Theologica, First Part, Part II, Q. 96, Sixth Article:Aquinas 2002, 67–9.25 Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978).





votes, Justice Scalia would have sent an innocent book dealer to jail in thewell-known child pornography case in order to follow the literal grammarof a poorly drafted statute.26

It is easy enough to see what drives such dissenting views. A large partof the motivation here is what I call the conservative temperament. This isthe temperament that prefers a clear line to a fuzzy line, even when theclear line is clearly drawn in the wrong place. Another motivation, con-fined to statutory interpretation, is that explicitly stated by Frank Easter-

brook (1995): “Sometimes the best way to change a statute is to enforce it by its terms.” Nino Scalia’s chastisement of poor legislative draftsmanship belies a similar motivation. On the Easterbrook/Scalia view, if legislatorsknow that judges conceive of their job as simply following the obvious law

no matter where it leads, then it will force those legislators to do their jobmore conscientiously. Thirdly, there is the respect due to the ideals of democratic self-governance and the separation of powers. In this view, it isonly the words of the legislature that have the imprimatur of democraticpromulgation. Judges therefore must treat all such words with equalrespect, even when doing so is an affront to common sense. Fourthly andlastly, the rule of law virtue of having law capable of generating reliablepredictions of legal consequences is said to argue for sticking with theobvious law—for that is what will be obvious to citizens who care to look

up the law.Some of these considerations are plainly of greater merit than others.(Scalia’s arrogance vis-à-vis poor draftsmanship in the legislature, forexample, is as naïve as Bentham in its assumption that codes couldeliminate such absurdities—as Aristotle saw long ago,27 such absurditiesare inevitable in any system of general rules.) Yet whatever their merit,surely the goodness of their reinforcement in a particular case has to be

balanced against the substantive goodness achievable if the obvious law isput aside. And equally surely, sometimes that balance must tip against theconservative values behind the obvious law. State sheriffs should not bepunished for arresting murderous mail carriers, no matter how obviouslythe federal mail statute seems to say that they should. All legal systemsneed to put some play in the joints of an otherwise too rigid, unchanging,and formalistic legal code.

Asking this safety-valve question of justice is the final way that valuesenter into the interpretive activities of a judge in every case. As with thesafety-valve question of purpose, there are two different kinds of value

judgments needed here. First, there is the judgment of what, all thingsconsidered, would be the just outcome in this particular case—obviously a

judgment of values. Secondly, a judge must balance the good achieved by

26 See United States v. X-Citement Video, Inc., 513 U.S. 64, 80 (1994) (Scalia, J., dissenting).27 Quoted and elaborated on in Hand 1958, 21.





doing justice in this particular case against the values that stand behindfollowing meaning, precedent, or purpose, to the extent that any of theseother ingredients incline the judge to an interpretation other than the one

that maximized justice between these two parties. This balancing of valuesis also (and equally obviously) a value judgment.

6. Revisiting the Morality Needed to Justify the Authorityof Obvious Law

We are now in a position to complete the discussion in Section 2 above (asto why it is impossible to relegate the values needed to justify the authorityof obvious law to off-the-bench, weekend moments having no impact on

work-week judging). The crucial item to see here is that once a judge everasks, in any case, these safety valve/purpose/overruling questions, that judge is committed to always asking such questions, in all cases. Evenwhen the answer is easy, that does not mean that these value-ladenquestions were not asked and thus that the law that results in the answerto such questions does not contain these overall evaluative criteria.

The only way to justifiably not ask these questions would be to use somecriterion demarcating when such questions need not be asked. As a first cutin this direction, one might say that easy cases must have two dimensions,not just one: in addition to having results deducible from rules and facts,such applications must not lead to unjust, unfair, or otherwise absurdresults. Now, one might continue, there are still some easy cases, namely,those where the facts relatively clearly satisfy all relevant legal predicates,and where there is no injustice, absurdity, et cetera. These might be calledeasy, easy cases, because they are easy as a matter of meaning and logic andas a matter of morals and common sense. There are thus, one mightcontinue, some easy, easy cases, although the number is further restricted

by the second stipulation.Yet this strategy of containment will not do. It is undoubtedly true that

most linguistically easy cases are also morally easy cases—for core appli-cations of the words employed cannot, more often than not, lead to absurdand unjust results, if our rule-makers are not either immoral or character-istically irrational in their choice of language. Yet the stipulation one mustmake to contain such counterexamples means that in every case a judgemust ask and answer a normative question. As Fuller (1958, 663) pointedout in his reply to Hart,28 the fact that the answer was obvious does notmean that the question was not asked.

The only way one could “seal off” the category of easy cases that are

morally hard, from easy, easy cases, is by some properly pedigreed, formalcriterion which tells a judge when he need not ask the normative question.

28 Fuller’s insight here was expanded by Duncan Kennedy (1973).





Yet a little reflection will show that such a criterion is an impossibility. If a judge seizes on some threshold degree of certainty in his linguisticintuitions to close off ethical questions, he will have committed himself to

just those absurd results in those cases over the threshold where thelanguage is so clear. Moreover, it is unclear how or where one could decideupon some degree of certainty for such a threshold, in light of the slidingscale of certainty that exists about linguistic intuitions. Alternatively, if the

judge seizes on some degree of injustice, unfairness, or absurdity as hiscriterion, he will have asked the safety valve questions in order not to askthem. No rule can specify the class of cases in which the safety valvequestions of common sense and justice need not be asked, except bydescribing that class as consisting of those decisions not leading to unjust,

and unfair or otherwise absurd results. Yet, if the rule so describes the casesin which the question need not be asked, then in every case the judge willhave to ask whether this rule is satisfied, i.e., whether the case as heproposes to decide it leads to unjust, unfair, or otherwise absurd results.The same would be true for any higher-order rule telling him when heneed not ask this latter question.29

There may seem to be something suspicious about questions “asked andanswered” that are not literally asked and answered by judges decidingmany cases. Yet the suspicion is founded on the confusion of explanation

29 The U.S. Supreme Court has on occasion attempted this impossible task of formulating acriterion that tells a judge when he should not ask the moral, safety valve question. In TVAv. Hill, 437 U.S. 153, 195 (1978), Justice Powell in dissent had quoted the well-known decisionin Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892), for the propriety of checking linguistic intuition against common sense and morality. 437 U.S. at 204–5, n. 14.Chief Justice Burger’s majority opinion treats the Holy Trinity safety valve question “asapplying only in ‘rare and exceptional circumstances’ ” (ibid., at 187 n. 33, quoting Crooks v.

Harrelson, 282 U.S. 55, 60 (1930)). The Court further purported to lay down a criterion forwhen such circumstances existed: “ ‘There must be something to make plain the intent of Congress that the letter of the statute is not to prevail’ ” (ibid.).

This test, like any such test, suffers from the following dilemma: If, as one suspects, one

may infer such congressional “intent” from the absurdity itself, then one has asked the safetyvalve question in order not to ask it. If, on the other hand, one requires other evidence of suchintent, then inevitably there will be just those outrageous results the Holy Trinity doctrine wasmeant to avoid, results that the legislature never anticipated and thus never marked asmaking eligible the overruling of the letter by the spirit or by common sense.

Even stranger is the test used in Crooks, supra: “[T]he principle is to be applied to overridethe literal terms of a statute only under rare and exceptional circumstances [. . .] to justify adeparture from the letter of the law upon that ground, the absurdity must be so gross as toshock the general moral of common sense” (ibid., 60). This is of course just to ask Fuller’squestion in order not to ask it. The degree of absurdity, injustice, or unfairness cannot serveas some kind of “triggering mechanism” for asking the safety valve question, for it suggeststhe following possibility: a case where clear language leads to a result sufficiently absurd that,if the court considered it, would suffice to construe the language differently. But the courtdoes not ask the safety valve question because it is not so absurd as to be “shocking.” If anything would be absurd, this would be. It would be as if a court, before it could inquireinto a party’s negligence, had first to find him grossly negligent. To reply in the court’s defensethat the standards are really the same is to restate the point precisely. There is only onequestion, which, if ever asked, is always asked.





with justification. If one were solely describing and explaining the psy-chological processes that judges go through when they decide cases, thereare doubtless some cases in which judges do not ask the safety valve

question. Yet a full fledged theory of adjudication purports to state how judges are obligated to decide cases. This is a matter of stating what aregood grounds with which to justify particular decisions. As a matter of

justification, a judge who asserts that a good ground for a decision of anycase can be that such decision is just, fair, not absurd, et cetera, commitshimself to asserting the same for every case, for he has no way todistinguish the two classes of cases except on those same moral grounds.

Now we are in a position to see how these fourth and fifth routes formorality entering judicial decision-making also show why the second

consideration above also is a route by which morality necessarily enterslaw. Recall the second set of considerations above, of the judge thoughtfulof her obligations to apply the obvious law. When the safety valvepurpose/overruling considerations show us that the obvious law is toounjust, too absurd, etc., the obligation of a judge is to overrule it, controlits “letter” by its “spirit,” hold it to be too absurd or unjust to be law. Inwhich case, notice that no matter how obvious the obvious law may be, itis always a question for a judge whether the values justifying a deferential

judicial role outweigh, or are outweighed by, the values disserved by

absurd applications of the obvious law. Even if the answer is obvious—thatthe obvious law should be followed—it does not mean that the questionwas not asked (Moore 1981, 280–1).

The omnipresence of the question of whether the obvious law should befollowed means that one cannot confine the values justifying a limited

judicial role to outside-of-role, “Sunday” musings. Rather, such valuesenter into each application of the obvious law by a judge, for eachapplication requires a balance of those values against the potential injusticeof applying such obvious law to the case before a judge. The values

justifying a limited role for judges thus, in this way, enter into the playingof that role by judges. They cannot be sealed off in the way legal positivismwould demand.

B. Morality in Judicial Reasoning as Being Part of the Law

We now need to address the question suspended earlier, viz, whether themorality judges ought to use in their reasonings as judges should be seenas being part of the law. I suspended this question because the practicalquestion is both logically prior and more interesting. How judges shouldreason has immediate payoffs in the real world in a way lacking in themore theoretical question.

But now suppose we all agree: judges should bring morality into their judicial reasoning in the five ways outlined earlier. Now we should ask the





more theoretical question: How should we conceptualize what judgesought to do as judges? When they follow morality in these five ways, arethey also following the law? If so, the law must include the morality they

are following. Or are they going against the law in the name of somethingelse, namely morality (on this view, misleadingly labeled, “the higherlaw”)?

Legal positivists have a perfectly understandable way of conceptualizingwhat judges ought to be doing in my five kinds of cases. About legalstandards incorporating moral standards, they can admit that judgesshould look to such incorporated moral standards, but deny that themorality of such standards has anything to do with their legality. On thisview, it is the enactment of such standards that alone confers legal status;

their moral content is irrelevant. In which case judges are concededlymaking moral judgments in determining the content of such standards, yetsuch moral reasoning is not part of distinctly legal reasoning—on thepositivist view, that would be confined to judicial determination of thefacts of enactment and judicial enforcement of such standards. In thatsense, the morality judges should use here need not be considered part of the law. Likewise for cases where the obvious law is indeterminate: apositivist could advise judges to look to morality because there is no lawin such cases. Because of this latter fact, such use of morality by judges

does not evidence some link of morality to law. When the judge makes newlaw by his decision, the law that is made may be morally correct, but it willstill be law only because it was laid down by the judge and not becauseit is morally correct. And as for cases where the obvious law cries out forcorrection, a positivist too can urge judges to overrule precedent, overruleplain statutory meaning, hold constitutional provisions nonjusticiable,etc.—only when the judge does this, he is changing the law. In which case,again the law itself (both before and after it is changed) is free of any moraltaint. The natural lawyer’s alternative way of conceptualizing these judicialobligations, of course, is to deny both that the obvious law is all the lawthere is, and that the “obvious law” is in fact always law.

We thus face a conceptual choice that is not obvious. The positivist keepsour notion of law simple—law consists of all and only the obvious stuff;

but the ethics of judicial obligation then becomes complicated because judges (qua judges) are obligated not to follow the law and judges are notlimited in their judicial obligations to the law alone. By contrast, thenatural lawyer keeps our ethics simple: judges are always obligated (intheir role as judges) to follow the law and nothing but the law; but thenotion of law now becomes complicated, because the law is not only, andnot always, what we take to be obviously law.

I have always plumped for the latter, natural law conceptualization.Among other things, it alone can accommodate the intuitive thought thatthe judicial role is defined by a judge’s obligation to follow the law. In





addition, it is the only view that can make sense of the idea that there aresingular propositions of law decisive of even hard cases which are true

before the judge deciding those cases makes them true by his decision. Let

me pursue each of these two thoughts in turn.Suppose we did not identify law with what a judge was obligated to do.

Suppose in a case like Kirby, we identify the singular proposition of law forthat case as the singular proposition that is logically derivable from thatgeneral proposition consisting of the plain meaning of the federal obstruc-tion statute. On a literal reading of “obstruction,” Sheriff Kirby literallyobstructed the passage of the U.S. mail when he arrested the murderousmail carrier; thus, the singular proposition of law in this case would be“Kirby is guilty of obstructing the passage of the U.S. mail.” Now suppose

that we divorce the law from judicial obligation by saying that Kirby isguilty according to the law, but that Kirby’s legal obligation was to do justwhat he did and that the trial judge’s legal obligation is to hold Kirby notguilty of obstructing the passage of the U.S. mail. This view is one held bysome positivists, such as Andrei Marmor (Marmor 1992).

It is pretty clear that what motivates views such as Marmor’s is the desireto keep singular propositions of law free from the contamination of value

judgments, specifically, those value judgments needed to assess a statute’s“spirit” and the “all-things-considered safety-valve judgments” mentioned

earlier. Yet Marmor, like some but not all fellow positivists, is unwilling tostomach the preposterous results reached if one truly follows a plainmeaning interpretive theory. So he cleaves judicial obligation from the law,and the judge is therefore obligated—qua judge, legally obligated—to decidecontrary to law!

Surely we do not want to do this to our concepts of law and legalobligation. If one identifies the law of the case in Kirby as the exclusivedictate of the ordinary meaning of “obstruct” in the relevant statute, thenthe “law” created only a reason for Kirby to act in one way, and a reasonfor a judge to sanction him if he acted the other way. Stronger reasons notof the law’s creation urged Kirby not to act as the law dictated, and thosesame non-law-created reasons urged the judge not to sanction Kirby forviolating the law. What the law is, on this positivist view of law, is simplynot a very interesting question. The law, on this view of it, is simply a bitplayer in the balance of reasons justifying both citizen and judicial behav-ior. Indeed, one would be hard-pressed to make much sense of the ideal of the “rule of law” because in no sense would law (so conceived) ruleanyone’s behavior.

Another point in favor of identifying law with someone’s obligation can be seen by focusing on who it is that is necessarily obligated by law. Thetraditional jurisprudential answer, common to both natural lawyers andlegal positivists, has been judges: the law necessarily obligates judges todecide in accordance with it. Even Hart, who was openly critical of





American jurisprudence for its “obsession” with judges, himself created ageneral theory of law in which the obligations (real or perceived) of judgesare central.30

Whether the real or perceived obligations of judges are indeed central tothere being a legal system is an interesting question, but it is not ourquestion here. Whatever one thinks of judicial obligation as the touchstoneof the legality of whole social systems, surely judicial obligation is intui-tively most closely connected to the legality of singular propositions. If thelaw of the Kirby case was that Kirby was not guilty of obstructing thepassage of the U.S. mail, then surely the judge’s obligation was to find justthat.31

In summary, then, I take the traditional argument for a natural law view

of those singular legal propositions derived from statutes to be quitestrong. This is because I find both steps of the natural lawyer’s argument(which I reverse in order here so as to correspond with the argument of thissection) to be intuitive at this level of legality. First, judges are obligated incases like Kirby to decide in accordance with “safety-valve” and “spirit”value judgments; second, the laws of such cases are to be identified withthose value-laden decisions, not with some supposedly value-free ingre-dient in them (such as the relevant statutes’ “plain meaning”).

The positivists’ view may seem less counterintuitive if we move from

cases where the obvious law seems clear enough (but is against a rule’spurpose or is contrary to the “safety valve” judgment), to cases where theobvious law is indeterminate. For in the latter kinds of cases the legalpositivist way of looking at things is not committed to saying that a judge’slegal obligation is to decide contrary to the law. Rather, in cases of trueindeterminacy in the obvious law, the positivist can say the judge has runout of law and thus cannot be deciding against it. All the positivist needsay about the judge’s legal obligation in such cases is that the judge islegally obligated to make the best new law his grasp of morality allowshim to do. The positivist’s needed sundering of legal obligation from lawis thus less dramatic in cases of true indeterminacy than in cases of determinate-but-wrong-headed law.

Still, if we focus on litigants rather than on judges there are someoddities in the positivist’s narrow identification of law (as only obviouslaw) in truly indeterminate cases. For running out of law in such cases

30 In Hart’s The Concept of Law, judges must regard the rule of recognition as obligatory fora legal system to exist.31 It is perhaps almost as intuitive that Kirby’s legal rights and obligations were the same asthose the judge was obligated to discover in his decision. Still, I leave for another day thequestion of whether the laws of cases necessarily obligate citizens as well as judges. (In thisregard, however, see Hurd 1999.) If they do, such citizen obligation makes the natural lawconclusion easier, since in comparison to judicial obligations (which express just those valuesdefining a discrete role) citizens’ obligations are more easily seen as an expression of all thevalues there are.





means that neither party has a legal right to win (or a legal duty to lose)such lawsuits. This means that litigants come before judges/juries in suchcases not as claimants of legal rights but as supplicants of judicial favor.

And this, as Dworkin (1978, chap. 4) was at pains to point out, does not jibe well with how lawyers engage in the practice of law in hard cases.

It might be thought that this uniform practice of treating claims in allcases as being claims of rights, is backed by some value, such as a distastefor retroactive law-making. The idea would be that if we failed to practicelaw in this rights-claiming way, then we would be admitting to litigantsthat judges created new legal rights for them at trial; the new legal rightswould therefore apply retroactively to those past events that gave rise tosuch litigants’ present law suit. Such retroactivity is bad because it is

unfair: retroactively applicable law unfairly surprises litigants who justi-fiably relied on the old version of the law. Yet by virtue of the fact that theunobvious law (that could tell litigants what their legal rights were in hardcases) was just that, unobvious, it would require a mythical being of Herculean powers to see such law. Since that is none of us, the justificationfor practicing law in ways supposing that there are rights in hard cases canhardly be that doing so prevents unfair surprise.

Theorists like Dworkin can only make a very formal point here, abouthow much of our legal practices we would have to change if we aban-

doned the thesis that there are legal rights in hard cases. That judicialdecisions are never retroactive applications of new law, but only discoveryof old (even if unobvious) law, might be thought to be a deep part of ourthinking about law that we would find difficult if not impossible to giveup. The problem with this formal point is that it seems palpably false. Canwe really not think of practicing overruling precedent prospectively, or of changing the law when overruling plain meaning with a statute’s purpose,or of admitting that judges invent new legal rights in truly hard cases, orthat judges morally justify their legal obligation to follow statutory orcommon law rules in truly easy cases? Surely the Legal Realists taught ushow easy it is to think in these alternative ways, and to change the rhetoricof legal argumentation accordingly. We thus need a normative argumenthere for why ours is a good practice, not simply a description that this isindeed how we do practice law. We need more, that is, than an accuratedescription of a formal presupposition.

Another argument for the natural lawyer’s broad identification of law (asincluding not just obvious law but also including the unobvious law of moral standards) lies in the phenomenology of judging. As Lon Fuller(1958) noted (seconded by Dworkin: Dworkin 1978, chap. 4), judges do notexperience what they do in deciding cases as consisting of two radicallydifferent jobs, depending on whether the case is easy or hard. On thepositivist view of the matter they would so see it: one part would beapplying the obvious law in a relatively straightforward and mechanical





way; the other part would be making new law based on their best moralinsights. The first part is done in a straitjacket of plain meaning anddirectly applicable precedent; the other part is contrastingly a matter of

creative, free-lance legislating. As Fuller pointed out, the sense of beingguided by law is not like this; rather, that sense is one of continuity, bothfrom easy cases to hard ones and from obvious law to unobvious law.

Perhaps the decisive argument for regarding the moral standards (thatdecide hard cases) to be part of the law, piggy-backs on what was alreadysaid about how we should regard the standards that govern the overrulingof plain meaning or past precedent. I argued that we should avoid sayingthat a judge’s legal obligation is to decide contrary to what the lawprovides. The way to avoid saying such a thing is to identify as law those

moral standards that justify the overruling of the plain meaning of statutesor the holdings of past precedents. Such moral standards will necessarilyinclude all of morality, for anything short of that is unjustifiably conserva-tive in the absurdities and injustices such overrulings are designed toprevent.32 And once we have made all of morality part of the law for thispurpose, why would we not regard the same moral standards as law when

judges do what they are obligated to do in hard cases, viz, use suchstandards to resolve the indeterminacies of the obvious law? If such moralstandards are rightly regarded as part of the law for one purpose (the

overruling function), surely it requires little justification to regard them aspart of the law for another purpose (the precisification function).My own long-held natural law conclusion is, thus, that the morality that

resolves hard cases and that corrects the obvious law when it needscorrection, is itself part of the law. Judges are legally obligated to use this“non-obvious law” (i.e., morality) to resolve hard cases and to correctmistakes. They are legally obligated, in other words, to follow the law. Wecan have this happy congruence of judicial obligation and law only on thenatural law view that the unobvious law (like the obvious law) is law only

because and only when it is morally right.

C. The Law of a Case after a Final Judicial Decision

The status of the law of a particular case may seem to change radicallyafter a judge renders a decision in that very case. If the time for appeal has

32 Justice Scalia has been surprisingly prescient about this. In response to the Supreme Court’ssometimes attempt to articulate a “law of overruling”—a set of criteria for when a precedentcase is ripe for overruling, such as (in Planned Parenthood v. Casey, 505 U.S. 833 (1992)) practicalworkability, degree of reliance, change of relevant facts, evasion of related precedents—Scaliacorrectly puts out that degree of substantive error cannot be left out. (Casey, Scalia in dissent).If one were to overrule Roe v. Wade, for example, the degree to which Roe gets liberty wrongcould not be ignored. Indeed, all values will bear on whether such decisions are wrongenough to change.





expired, or if no appeal can be taken because the court making the decisionis the highest court, then the judge’s decision is final. This decision,whatever it is, seems to fix the rights and duties of the parties irrevocably;

moreover, it seems to do so all by itself, i.e., as a matter of institutional factwithout any input from morality.

In Anglo-American law the irrevocability of such a decision is termed its“res judicata effect.” Even if the decision is later “strictly confined to itsfacts,” or even overruled in another case, the decision stands with respectto the parties in the original case. For example, even if a judge’s conclusionthat there is a valid contract between two parties is erroneous, once thatdecision is final, the parties have the rights and duties of contractingparties.

The seeming sufficiency of the decision to constitute the law of the casemay be seen by supposing a completely erroneous decision. If the partiesare stuck with such a decision as determinative of their rights and duties,that would show the sufficiency of the decision itself, whatever it is, toconstitute the law of their case. Prior to such an erroneous decision, we maysuppose that everything (plain meaning, spirit, safety-valve considerations)supported the claim that the truth value of the singular legal proposition“This contract is invalid” was “true”; after the erroneous decision, the truthvalue of that proposition, nonetheless, seems to be “false.” The decision

itself seems fully determinative of what the law of this case now is.Legal positivists should like this account of the law of a case quite a bit.After all, on this account the truth of such singular propositions of lawseems to turn on a pure matter of nonmoral fact, namely, the historical factthat the relevant judge decided as she did. The clarity and simplicity of thisview, then, inclines the positivist toward the Legal Realist idea that untilthe judge makes a decision, there is no law of a particular case.

Unfortunately for the positivist, however, none of this is as it seems. To begin with, we have good reasons, as discussed above in Part II, for sayingthat there is a law for a case prior to some judge deciding it. Furthermore,although a judgment in a case is almost always given res judicata effect asthe law of the case, that this is so is due to a balancing of values (not solely

because of some historical fact), and, when that balance tips the other way,it is not so at all.

The doctrine that a legal judgment, once rendered, should conclude thedispute between the parties is justified by important considerations. Theseinclude the undesirability of favoring the tireless and the wealthy indisputes, the undesirability of allowing multiple attempts at establishingliability, and the desirability of promoting efficient adjudication by givinglitigants incentives to present their best case on the first try. We might thinkof these considerations as the additional functions served by the law of acase once a decision has been reached (“additional” because the basicfunction essential to the law of a case, irrespective of whether a judge has





actually decided the matter, is the fixing of the legal rights and duties of the parties). Such considerations supporting res judicata may well be sostrong that they almost always justify both a judge in refusing to “over-

rule” a prior ruling on the law of a case and a citizen subject to the rulingfrom disobeying it. The considerations are not so strong, however, as tomake res judicata into the hard and fast rule many lawyers pretend it to be.

Consider a (not so hypothetical) case in which (1) the mother is declaredunfit in a child custody proceeding because the judge concludes, errone-ously under the laws of his jurisdiction, that the mother’s full-time employ-ment disqualifies her from being a fit parent; (2) the father is erroneouslydeclared fit because the judge does not know that the father has sexuallyabused the child; and (3) the judge, on the basis of the determinations

mentioned in (1) and (2), enters a judgment awarding exclusive custody tothe father. It is clear to me that the mother in this case is not obligated toobey the court’s judgment. Indeed, her obligation is to do whatever she canto protect her child; this includes secreting the child away from the fatherat the first opportunity. It is almost as clear that a judge who knows whatthe mother knows—that is, he knows how erroneous the custody judgmentis in both law and fact—is obligated not to enforce it against the mother.33

This position, of course, raises a procedural worry in that it will encouragelitigants to reopen matters of fact and law that are already concluded, but

this must be balanced against the worry that severe injustice can be causedif judges are given authority to fix with no possibility of correction the legalrights and obligations of litigants.

What cases like the custody example show us is that when the level of injustice about to be caused by some judgment in a case is quite high, even

33 In the Anglo-American legal system, we have for centuries tempered the desire for finalityin legal judgments with a desire to reopen “final” judgments in order to correct serioussubstantive or procedural errors. At common law, this was accomplished procedurally by theancient writs of coram nobis and audita querrela, and in Equity, by bills in equity seeking

injunctions against the enforcement of legal judgments. See J.W. Moore 1999, secs. 60 App.105–8. Even under current federal American law, the old view that courts have inherentpower to reopen their own judgments survives; Federal Rule of Civil Procedure 60(b)enumerates five traditional grounds for reopening a judgment and then adds a safety-valveprovision specifying that a judgment can also be reopened for “any other reason justifyingrelief from the operation of the judgment.” Under this provision, “[t]he degree of unfairnessmay properly be considered in determining whether a court is justified in disturbing thefinality of a judgment” (J.W. Moore 1999, sec. 60 App. 37). As courts recognize, this “catch-all”or safety-valve provision is a “grand reservoir of equitable power to do justice in a particularcase” (Compton v. Alton Steamship Co., 608 F.2d 96, 106 (5th Cir. 1979)).

Currently, the above-referenced procedures for reopening a judgment are available only tothe court that rendered the judgment. However, when the degree of injustice caused by anerroneous judgment is serious enough, a “collateral attack” on that judgment can be launchedfrom a different court. See, e.g., Fay v. Noia, 372 U.S. 391 (1963), and Townsend v. Sain, 372 U.S.293 (1963), where collateral review of state court factual findings was allowed by the U.S.Supreme Court in order to protect constitutional values. In a civil context, see Feinberg 1995,for a discussion of the various techniques used by state court judges in the antebellum Northto avoid giving “full faith and credit” to Southern court findings pertaining to escaped slaves.





the strong considerations in favor of res judicata yield. Thus, the judgmentdoes not by itself obligate either citizen or judicial obedience. Rather, thecontent of such obligations is determined by a balance between the

considerations behind res judicata and the considerations disserved bythe erroneous judgment. Even when that balance tips in favor of the res

judicata considerations—as it usually will in a reasonably just legalsystem—obligation follows this balance of values, not some value-freehistorical fact.

Here we again face a familiar possibility, that of cleaving obligation fromthe law of the case. Certainly an idiomatic way of describing the mother’sobligation in a case like that above is to say, “She was obligated not tofollow the law.” We might even say this of the judge—that is, we might say

that he was obligated not to enforce the law of that case. It is preferable,however, to keep citizen and judicial obligation in line with the law. If both

judge and citizen were obligated to keep the child away from the abusivefather before any judgment was entered, and they are similarly obligatedafter the judgment is entered, then the law of the case did not change whenthe judgment was entered.

This way of looking at the matter is reinforced by the fact that when wedetermine that an earlier judgment was erroneous, it is desirable to be ableto say that our later determination correcting this judgment is retroactively

applicable.34

Suppose that in the custody case, a later court finds that theinitial judgment discussed above was erroneous. Between the time that theinitial judgment was entered and the time that it is declared erroneous,what was the law of the case? Was it the erroneous judgment, whichtherefore both changed the pre-judgment law of the case and was itself changed by the subsequent determination of error? If so, then contemptcharges would still be appropriate against the disobedient mother, anddisciplinary proceedings would still be appropriate against a judge whohad refused to enforce the custody order before the determination of error.Because these consequences are undesirable, it is better to treat the judg-ment subsequently determined to be erroneous as if it had never been thelaw of the case. On this view, the law of the case never changed, and noone can be punished for doing what he was obligated to do according tothat law. Such a view requires us not to divorce obligation from legality,and thus not to see a judgment as itself constituting the law for its case.

34 Anglo-American law, as formally stated, is different from what I am arguing for in thisessay. See, e.g., United States v. United Mine Workers, 330 U.S. 258, 294 (1947), in which it isstated that “[a]n injunction [. . .] must be obeyed [. . .] however erroneous the action of thecourt may be [. . .].” If our law really means this, it is bad law. I doubt, however, that our lawdoes mean this. To give the proper incentives to most people, it is doubtlessly useful to uttersuch categorical, exceptionless pronouncements; in actuality, however, courts merely slap onthe wrists actors like Martin Luther King when those actors violate judicial orders (subse-quently determined to be erroneous for very good reasons.)





The law of a case after a judgment is entered should thus be a functionof exactly the same mixture of value judgments and historical/semanticfacts of which it was a function prior to judgment. The difference is that

to determine the law of a case after a judgment is entered, the balance of considerations that determined the law of the case prior to judgment mustthen itself be balanced against the considerations favoring finality of

judgments. This view of the law of a case as a complex balance of valuesis still a natural law view.

IV. Conclusion

In the body of this paper (Part III) I have argued for two theses: One, that

judges are obligated to use morality in their decisions in particular cases inthe five ways that I have described; and two, that the morality judges areobligated to use in their judicial reasonings, is best seen as the naturallawyer sees it, viz, as being part of the law that obligates judges in theirrole as judges. Not only do I believe these theses to be true; I also think thatthese theses are practically important, in that their acceptance by judges(and by the legal culture that reinforces judges) makes for better judging.

Judges who truthfully reject the first thesis in their behavior judge badlyin an obvious sense: their quest for value-free adjudication makes them

judge unjustly, mechanically, and/or stupidly. But even judges who get the behavior right but who deceive themselves as to their use of morality to doso, do their job better if they rid themselves of their self-deception. Openacknowledgement of their reliance on morality in reaching legal judgmentsmakes for more nuanced, more public, and more honest forms of judicialreasoning.

It also helps judges to do better in their jobs if they accept the secondthesis and see the moral considerations on which they should and mustrely, as being part of the law that defines their job. They can then be less

halting, guilty, or embarrassed by their overruling of the plain meaning of some statute, for example, when that meaning leads to absurdity. To theextent that those who judge judges share this broader view of law, it makesmore intelligent, more restrained, more nuanced, and more honest, thecriticisms one should make about how particular judges are doing their

job.There are of course some caveats to these beneficial effects caused by

acceptance of the two theses of this paper. Three come to mind. First, wecannot have a judicial bench filled with either moral lepers or moral

incompetents and still achieve the beneficial effect of better judging.

35

Evil

35 In the context of assessing whether Clarence Thomas should be confirmed to the U.S.Supreme Court, Lawrence Tribe opined that Thomas’ natural law views were disqualifying.I rejoined that it wasn’t Thomas relational views (between law and morality) that raised a





judges, or judges who are morally obtuse, would be better restrained by akind of “stick-to-the-obvious-law” kind of legal philosophy. The injusticeproduced thusly would doubtlessly be less than the injustice created by

judges unrestrainedly heading in bad moral directions.Second, there is a particular kind of moral mistake that is made by some

judges when they realize that morality has a rightful place in their judicialreasoning about law. This is the mistake of over-emphasizing the (five)moral dimensions of their work, and underemphasizing the conservativevalues that stand behind doctrines like legislative supremacy and staredecisis. Purely ideological judging is as much to be feared as is the wooden,mechanical judging of those who pretend morality has no place in theirreasoning. Each causes a kind of injustice through her judging, even if the

kinds of values trampled on in each case differ. This was the basis onwhich I publicly opposed the retention of Rose Bird as Chief Justice of theCalifornia Supreme Court in the 1985–1986 retention election.36

Third, belief in these theses is not beneficial to judges, or to those who judge judges, if they are skeptics about morality. If a judge’s meta-ethics areso skeptical that she believes that “natural rights are nonsense on stilts,” asdid Bentham, or that utilitarianism too is no more defensible than rationalegoism, or that value talk of any kind is a misleadingly objective way of describing or expressing what in reality are naked preferences, then that

judge would probably do better sticking to what for her is objective andcapable of objective judgment—the plain meaning of legal rules and theundisputed facts of history. This was the basis on which I publically opposedRobert Bork in his quest to gain a seat on the U.S. Supreme Court in 1987.37

Bork’s moral skepticism crippled him from developing and applying themoral insights needed to do his job well. One who thinks that the right toequality is merely a preference, is not the kind of person who can see whatequality demands; he will thus take refuge in the historical exemplars legalframers may have had in mind when they enshrined that value in a legal textlike the American Constitution’s equal protection clause. Bork parodied theclause as the “equal gratification clause,” as would one who thinks that allvalues including equality are mere preferences.

question, but rather what morality Thomas held. Given the relations between law andmorality defended in this paper, it was Thomas’ morality that was relevant, not his belief inthe relations between that morality and the law it would be his duty to apply. CompareLawrence Tribe, “Clarence Thomas and ‘Natural Law,’ ” New York Times Section A, p. 15, Col.1 (July 15, 1991), with Michael Moore, “Unnatural Brawl Over Natural Law,” Los AngelesTimes, Section B, p. 5 (September 5, 1991).36 Michael Moore, “Rose Bird Should Go,” Los Angeles Times, Section B, p. 5 (July 31, 1985).37 Michael Moore, “Judge Bork, A Contradiction in Terms,” Los Angeles Times (September 18,1987). Judges do not need to share my morally realist meta-ethics (Moore 1982 and 1992b),although it would be nice if they did. Any meta-ethics that doesn’t dispirit their ethics woulddo.





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Law and Morality in Contemporary Legal Philosophy

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