Many imagine that morality is a domain of timeless truths – principles that apply anywhere and everywhere. If that’s what morality is like, it’s insulated from our activities. We don’t control its requirements. Arguably, some aspects of morality are like that. Morality’s most fundamental demands seem beyond our control. It’s hard to see what we could do to release ourselves from our obligation to respect one another’s humanity. But an awful lot of morality isn’t like that. We can shape its requirements, adjust its demands. Indeed, we have lots of practices that aim to do just that.
Promising is a prominent one. When I promised George Pavlakos that I would submit this essay by the end of January, I acquired an obligation to do so, and he acquired the corresponding right. If I failed to deliver, I’d owe him an apology and my best efforts to remedy the situation. The promise shaped my relationship to Pavlakos: no promise, no rights or responsibilities, at least insofar as this essay was concerned. But I was glad to take on the obligation, in part because I’m grateful that Pavlakos assembled such an excellent set of papers for this symposium.
More on the papers a little bit later. Let’s stick with promising for now. It’s a moral practice, insofar as it aims to adjust our moral relationships. That doesn’t mean that every promise is moral. Indeed, some are deeply immoral. Suppose, for instance, that you promise to kill your sister’s spouse. That’s an awful promise, and it doesn’t make the moral difference it purports to make. You can’t obligate yourself to murder your sister’s spouse – or anyone else – just by saying that you will. If the promise requires anything of you, it’s that you abandon your plan and revoke the promise. Of course, you may not see it that way. You are, after all, the sort of person who promises to murder your sister’s spouse. So you are apt to think yourself obligated to do so. That’s an important fact for anyone who interacts with you to track. It will help them anticipate and explain your behaviour – and hopefully, stay safe in your presence. But they won’t fully understand you unless they appreciate that your promise was meant to make a moral difference – and that you’re misguided in thinking it did.
Promising is not our only moral practice. We issue orders, swear oaths, grant forgiveness, adopt rules, make demands, and much, much more, all in an effort to adjust what we owe each other. Sometimes, these practices work as intended. Often, they don’t. But you wouldn’t understand any of them if you didn’t see that they are tools for adjusting our moral rights and responsibilities. The central claim of Law Is a Moral Practice is right in the title. Law is another moral practice. Its central activities (like legislation, adjudication, and regulation) are tools for adjusting what we owe each other. Of course, tools don’t always work as intended. Many legal practices are immoral, just like many promises are. The people involved are often confused about that; they take themselves to have rights and responsibilities that the practice does not, in fact, ground. (In antebellum America, for instance, some people took themselves to have the right to enslave others, and courts commonly backed the claim.) Those are important facts to track, especially if you interact with people involved in the practice. But you wouldn’t understand law as a social practice if you didn’t see that it was intended to – and often does – rearrange what we owe each other.
Many would agree with that last bit, but they’d want to qualify it. Our legal practices, they would want to say, are tools for adjusting what we owe each other legally, not morally – and the two are importantly different. There’s a long tradition of thinking so. That is, there’s a long tradition of thinking that law and morality are separate normative systems, and that the point of our legal practices is to bring a legal system into being and give it content. It’s a contingent question, many would say, whether we ought to do as the law demands – it depends whether it matches up with morality, or whether morality directs us to do as the law demands, even if it wouldn’t have required what the law does.
Law Is a Moral Practice invites the reader to abandon that familiar, two-system way of looking at law. There are reasons to think that picture misleading. But at best, it’s perplexing, as it’s proven difficult for philosophers to explain what the law is and how it gets its content. (The recent history of jurisprudence is a series of proposals about just that.) But it’s also unnecessary. The point of our legal practices is not to create a new domain of normativity, separate from morality. Rather, it’s to adjust our moral relationships – to give us genuine rights and responsibilities that others (including legal officials, like judges) should respond to and vindicate. Law is a part of our moral lives, and the claims we advance in legal institutions are best understood as moral claims.
Or so I argue at length in Law Is a Moral Practice. It’s hard to summarise the argument here, as the book is, as I said, an invitation to take up a way of looking at law – to see how it works, where it leads, the way it illuminates old and often intractable debates about a wide range of topics (among them, the obligation to obey the law, the rule of law, and the significance of immoral laws). I hope you will read the book (it’s short!) and then engage the excellent critical essays that follow. My responses are collected at the end of the issue, so I’ll see you again shortly.