Morality, Law and Normative Conflict

2011 Maccabaean Lecture in Jurisprudence

Peter Cane

1. Two senses of moral/morality: normative and descriptive.

2. The separation thesis about the relationship between morality and law: what the law is and what it
ought morally to be are two different questions.
3. Two assumptions of the separation thesis:
(1) a descriptive distinction between morality and law;
(2) that law is properly subject to moral assessment.
4. Three questions:
(1) how is morality to be distinguished from law?
(2) why is law subject moral assessment?
(3) if law is subject to moral assessment, how, if at all, is law relevant to moral reasoning?
5. Hart’s focus on the ‘clear standard case of the law of modern nations’.
6. Hart’s concept(s) of morality:
(a) Original broad approach: three types of morality – conventional/social/positive, personal and
critical
(b) Revised, narrow approach: individual conviction; concurrent vs conventional social morality.
7. The cost of the change of approach:
(a) the distinction between positive and critical morality;
(b) sociological fidelity versus analytical power.
8. Four features of morality broadly understood.
(a) Importance: ‘In contrast to morals some, though not all, rules of law occupy a relatively low place
on the scale of serious importance’.
(i) Curbing the Passions and Sacrificing Personal Interest: ‘Moral standards are maintained
against the drive of strong passions which they restrict and at the cost of sacrificing considerable
personal interest’.
(ii) Serious Social Pressure: ‘serious forms of social pressure [are] exerted not only to obtain
conformity…but to secure that moral standards are taught or communicated as a matter of course
to all in society’.
(iii) The Consequences of Immorality: ‘if moral standards were not generally accepted, far-
reaching and distasteful changes in the life of individuals would occur’.
(b) Immunity from Deliberate Change
(i) Moral legislation: morality cannot be deliberately made or changed; the idea of a moral
legislator with authority to make and change morality is ‘repugnant to the whole idea of
morality’.
(ii) Morality is ‘something “there” to be recognized’. ‘Traditions acquire and lose their status as
such ‘by growing, being practised, ceasing to be practised, and decaying…by…slow, involuntary
processes’.
(c) The Nature of Moral Offences
(i) In morality, liability regardless of fault ‘comes as close to being a contradiction in terms as
anything in this sphere’.
(ii) Moral obligations are ‘within the capacity of any normal adult’.
(iii) ‘In morals, “I could not help it” is always an excuse, and moral obligation would be
altogether different from what it is if the moral “ought” did not in this sense imply “can”’.
(d) The Form of Moral Pressure: securing compliance with morality involves ‘appeals to the respect
for the rules, as things important in themselves, which is presumed to be shared by those addressed’ and
never involves ‘only threats of physical punishment or unpleasant consequences’.
9. Morality and Normative Conflict
(a) ‘the part played by morality in the lives of individuals’ ‘as the ultimate standard by which
human actions…are evaluated’.
(b) Explanations of why moral reasons trump legal reasons.
(c) The relevance of law to moral reasoning: morality’s dependence on law – the indeterminacy
of morality and the possibility of reasonable but dysfunctional moral disagreement.