Morality in Legal Philosophy

Abstract

Moral concerns should be relevant to the choice of the best legal theory on both theoretical and moral grounds because social practices such as law can change due to the theorizing activity. Hart's concept of law provides grounds for claiming that rules of social morality can constrain law in more ways than he admits in his minimum content of natural law. The belief that social morality constrains valid law allows one to treat the question of civil disobedience as sensitively as a legal positivist and leads to neither anarchism nor passivism. At the other extreme, Dworkin's law as integrity interpretation, which claims law is concerned with political morality through and through, leads to morally regrettable consequences when adopted as a normative theory of adjudication. Theoretical difficulties also flow from Dworkin's identification of the role of judge and legal theorist: that a legal theorist must be a participant in any legal system she interprets does not mean she should adopt or exclusively focus on a judge's perspective on that system.