Should Law Improve Morality?

Lawyers and philosophers have long debated whether law should enforce social morality. This paper explores whether law should improve social morality. It explains how this might be possible, and what sort of obstacles, factual and moral, there are to doing so. It concludes with an example: our law should attempt to improve our social morality of sexual conduct.     

Care and Justice in the Global Context

Abstract. Morality is often dismissed as irrelevant in what is seen as the global anarchy of rival states each pursuing its national interest. When morality is invoked, it is usually the morality of justice with its associated moral conceptions of individual rights, equality, and universal law. In the area of moral theory, an alternative moral approach, the ethics of care, has been developed in recent years. It is beginning to influence how some see their global responsibilities.     

Why Interpret?

Abstract. My article is about legal interpretation, but not about the question: how to interpret the law. Rather its aim is to make us consider seriously the question: Why is interpretation central to legal practices? After all not all normative practices assign interpretation such a central role. In this regard the law contrasts with morality. The reason for the contrast has to do with the status of sources in the law. There are no “moral sources” while legal sources are central to the law. Legal interpretation is primarily—I will suggest—the interpretation not of the law, but of its sources. To understand why interpretation is central to legal practices requires understanding the role of sources in the law: the reasons for having them, and hence also the ways in which they should be treated. I will show how reflections about these topics connect with some traditional jurisprudential puzzles, such as the relations between law and morality. Are there gaps in the law? Is the law or its interpretation objective or subjective?     

法与道德关系模式的历史反思

西方学者在法与道德关系的争论中提出了许多模式 ,著名的有康德模式、富勒模式、哈特模式等。这些模式虽然在某种程度上能揭示法与道德的关系 ,但都不够理想。法和道德都有观念、规范或制度、秩序三个层次 ,二者的观念层次是相通的和深藏于现在一般所说的价值观念之中。另外 ,在秩序层次二者也是很难区分的 ,因为它都落实在人的行为中 ,而一个行为 ,如果符合秩序的要求或构成社会秩序的话 ,可能同时具有法律意义和道德意义。这样 ,法与道德的区别主要存在于规范或制度层次。     

Reliance and Obligation

Abstract.  The fact that A has relied on B to do something is often taken to be a relevant factor in judging that B has a moral or legal obligation to do that thing. This paper investigates the relation between reliance and obligation. Specifically, the question is whether reliance and moral obligation are connected by some relation of conditionality. I consider four such relations—necessary condition, sufficient condition, necessary part of a sufficient condition, and independent necessary part of a sufficient condition. I argue that only the third one connects reliance and moral obligation, and that it does so in a trivial way. There are nevertheless two justifications for the prominence given to reliance in morality and law. First, reliance appears to be a sufficient condition of states of affairs involving concepts related to obligation. Second, reliance is a fairly reliable indicator of obligation.     

守法的道德依据

守法与道德存在必然联系,即守法需要具备一定的道德基础、道德限度,也就是说,社会主体守法的自觉性与道德水平直接相关。同时,还要进一步明确遵守法律的理论依据,这对于完善中国特色社会主义法制理论有重要的现实意义。     

Out of Time: The Moral Temporality of Sex, Crime and Taboo

This paper discusses the relationship between law and morality. Morality does not necessarily coincide with the law, but it contributes to it. An act may be legal but nevertheless considered to be immoral in a particular society. For example, the use of pornography may be considered by many to be immoral. Nevertheless, the sale and distribution of non-violent, non-child related, sexually explicit material is legal (or regulated) in many jurisdictions. Many laws are informed by, and even created by, morality. This paper examines the historical influence of morality on the law and on society in general. It aims to develop a theoretical framework for examining legal moralism and the social construction of morality and crime as well as the relationship between sex, desire and taboo. Here, we refer to the moral temporality of sex and taboo, which examines the way in which moral judgments about sex and what is considered taboo change over time, and the kinds of justifications that are employed in support of changing moralities. It unpacks the way in which abstract and highly tenuous concepts such as “desire”, “art” and “entertainment” may be “out of time” with morality, and how morality shapes laws over time, fabricating justifications from within socially constructed communities of practice. This theoretical framework maps the way in which these concepts have become temporally dominated by heteronormative structures such as the family, marriage, reproduction, and longevity. It is argued that the logic of these structures is inexorably tied to the heterosexual life-path, charting individual lives and relationships through explicit phases of childhood, adolescence and adulthood that, in the twenty-first century, delimit the boundaries of taboo surrounding sex more than any other time in history.     

法与德的冲突及其法理思考

作为社会调整的基本规范,法与德冲突与互补同在,矛盾与互动并行。透视该种态势存在的根据,把握两种规范的社会定位,缓解乃至部分消除法与德的冲突,建立两者之间的协调互动关系,正是本文主旨所在。实践中的执法、司法的道德化倾向不仅混淆了法与德的界限,而且背离了法治社会的本质要求。     

Positivism,Legal Validity,and the Separation of Law and Morals

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project.     

Eating Peas with One’s Fingers: A Semiotic Approach to Law and Social Norms

This paper proposes a semiotic theory of norms—what I term normative semiotics. The paper’s central contention is that social norms are a language. Moreover, it is a language that we instinctively learn to speak. Normative behaviour is a mode of communication, the intelligibility of which allows us to establish cooperative relationships with others. Normative behaviour communicates an actor’s potential as a cooperative partner. Compliance with a norm is an act of communication: compliance signals cooperativeness; noncompliance signals uncooperativeness. An evolutionary model is proposed to explain how this comes about: evolution has generated an instinctual proficiency in working with these signals much like a language—a proficiency that manifests in an emotional context. We see these social rules as possessing a certain ‘rightness’ in normative terms. This adaptive trait is what we call internalization. Internalization enhances the individual’s ability to speak this code. Because these signals communicate who is and who is not a reliable co-operator, sending and receiving cooperation signals is crucial to individual survival. Individuals who internalized the entire process and thus became more adept at speaking the language were at an advantage. Law seeks to shape the language of norms by maintaining the collective standards of society; as such, understanding how and why this normative language emerges is critical to understanding a core function of law.     

道德评价与法律干预的临界点

法和道德在终极意义上同样都是百姓伦理价值的体现，所以道德评价与法律干预具有社会价值的一致性。道德评价保障了私权利空间，而法律干预则是国家公权力介入私人空间。因此，应该把难以弥补的重大社会公共利益被侵犯作为道德评价与法律干预的界限。这一界限是在不侵犯私权利的情况下保障社会利益的最佳途径。     

Self-Mediated Risk in Criminal Law

The paper addresses the question whether ‘self-mediated risk’ – risk whose coming-to-fruition depends on future volitional conduct by the actor himself – bears on the wrongfulness of an actor's present conduct. Moral philosophers have long been divided on this question. ‘Actualists’ take the view that an actor's present moral obligations do, in fact, depend on what he or she actually is likely to do in the future. In contrast, ‘possibilists’ take the view that an actor's present obligations depend only on what he or she will have the capacity to do in the future. This paper argues that actualism better captures the morality that underlies the criminal law. The paper also explores actualism's implications for criminal law. Among these is the implication that the locus of moral fault in criminal cases sometimes is temporally removed from the conduct that triggers the assignment of blame.     

Indirect Crimes

Both law and morality routinely distinguish between direct wrongs of causing harm oneself and indirect wrongs of contributing to another’s harmful actions. This article asks whether this distinction matters for the purposes of a theory of criminalisation. It argues that, in some respects, the distinction matters less than is often supposed: generally, the potential future actions of others have at least some relevance to what we ought to do. However, it is morally significant that criminal liability for indirect wrongdoing can make our freedom to do valuable things contingent upon others’ failure to comply with their moral obligations. This raises substantial concerns of autonomy and fairness that tell against the creation of some – but by no means all – indirect crimes.     

Do blind people see race? Social, legal, and theoretical considerations

Although the meaning, significance, and definition of race have been debated for centuries, one thread of thought unifies almost all of the many diverging perspectives: a largely unquestioned belief that race is self-evident and visually obvious, defined largely by skin color, facial features, and other visual cues. This suggests that “seeing race” is an experience largely unmediated by broader social forces; we simply know it when we see it. It also suggests that those who cannot see are likely to have a diminished understanding of race. But is this empirically accurate?I examine these questions by interviewing people who have been totally blind since birth about race and compare their responses to sighted individuals. I not only find that blind people have as significant an understanding of race as anyone else and that they understand race visually, but that this visual understanding of race stems from interpersonal and institutional socializations that profoundly shape their racial perceptions. These findings highlight how race and racial thinking are encoded into individuals through iterative social practices that train people to think a certain way about the world around them. In short, these practices are so strong that even blind people, in a conceptual sense, “see” race. Rather than being self-evident, these interviews draw attention to how race becomes visually salient through constitutive social practices that give rise to visual understandings of racial difference for blind and sighted people alike. This article concludes with a discussion of these findings' significance for understanding the role of race in law and society.     

Just-in-Time Justice: Globalization and the Changing Character of Law,Order, and Power

This article examines how economic globalization has dialectically interacted with the nation-state and legal order to facilitate the production of “just-in-time justice”—the increasingly flexible character of law, order, and power. Utilizing Chambliss’s analytic strategy, particularly his dialectical approach to lawmaking, I first examine the relationship between the global social order, economic globalization, and the changing architecture of nation-states. I then explore ways that the legal order has been flexibilized, including the creation of “states of exception,” the privatization of social control functions of the state, the development of transnational spaces for governance, and the widespread use of surveillance. My analysis of these transformations suggests that the greatest danger in the contemporary moment may be what we do not know, what is hidden from public accountability, beyond the public gaze. Importantly, this analysis also highlights that law continues to matter—or else there would not be such a press to ensure its disappearance.     

论法律规范性的概念与来源

法律规范性理论包括概念和来源两个不同的问题。概念要回答的是法律的规范性究竟意味着什么,特别是它与道德规范性之间存在何种联系与区别。来源问题则要说明法律为何具有此种规范性,关涉到法律作为一种规范性实践如何可能这一根本性问题。与道德相比,法律的规范性是一种弱规范性,它本身是一种道德主张,但它的来源却是独立于法律要求的道德正当性的。哈特和科尔曼等人基于法律人视角,将法律规范性问题转化为法律的效力来源问题,是对法律规范性的误解。承认规则只具有认识意义。法律本质上以权威性的方式有效消除合法性环境下的道德瑕疵的共享合作事业,法律的规范性来自于法律实现其道德目标的能力。     

刑法和道德的界限考察

刑法和道德之间存在一定程度的联系,两者都是调整人类行为的社会规范,如果能在两者之间划出一条清晰的界限作为调整犯罪行为或道德行为的标准,显然非常重要。应从刑法理论、司法实践及几种道德分类等方面去剖析道德和刑法的界限问题。     

The Nature of Legal Philosophy

Abstract. Philosophy is general and systematic reflection about what there is, what ought to be done or is good, and how knowledge about both is possible. Legal philosophy raises these questions with respect to the law. In so doing, legal philosophy is engaged in reasoning about the nature of law. The arguments addressed to the question of the nature of law revolve around three problems. The first problem addresses the question: In what kinds of entities does the law consist, and how are these entities connected such that they form the overarching entity we call “law”? The answer is that law consists of norms as meaning contents which form a normative system. The second problem addresses the question of how norms as meaning contents are connected with the real world. This connection can be grasped by means of the concepts of authoritative issuance and social efficacy. The latter includes the concept of coercion or force. The third problem addresses the correctness or legitimacy of law, and, by this, the relationship between law and morality. To ask about the nature of law is to ask about necessary relations between the concepts of normative meaning, authoritative issuance as well as social efficacy, and correctness of content.     

Social License and Environmental Protection: Why Businesses Go Beyond Compliance

This article examines the concept of the corporate "social license," which governs the extent to which a corporation is constrained to meet societal expectations and avoid activities that societies (or influential elements within them) deem unacceptable, whether or not those expectations are embodied in law. It examines the social license empirically, as it relates to one social problem–environmental protection–and as it relates to one particular industry: pulp and paper manufacturing. It shows try the social license is important, the circumstances in which it may encourage companies to go "beyond compliance" with regulation, how its terms are monitored and enforced, and how it interacts with what we term the regulatory and economic licenses. Overall, this research demonstrates that corporate environmental behavior cannot be explained purely in terms of instrumental threats and moral obligations to comply with the law, and that the increasing incidence of "beyond compliance" corporate behavior can be better explained in terms of the interplay between social pressures and economic constraints.