Mark Greenberg, The Moral Impact Theory of Law, 123 Yale L.J. 1288 (2014).
In legal philosophy, as in many scholarly areas, there is a “good and original” problem: the work that is very good tends not to be particularly original (usually being rather a careful modification of existing ideas), and the work is truly original tends not be very good at all. There are occasional exceptions, and one of these in the area of legal philosophy is the work of Mark Greenberg, who in recent years has developed, through a series of articles, a significant, and significantly novel approach to the nature of law. As will be described, Greenberg’s theory is distinctive and refreshingly heretical.
Greenberg’s approach is in sharp contrast with what he calls “the Standard Picture,” a view he believes to be assumed or accepted, but rarely argued for, in connection with most of the currently popular theories of the nature of law. Under the Standard Picture, when legislators enact a statute, they directly and straightforwardly add to our law(s). At the same time, as Greenberg points out, lawyers, legal theorists, and law students – and everyone else who has looked seriously at the process of statutory interpretation in actual cases – know that the way statutes add to the law(s) is not that direct or that clear. This is shown indirectly in the way that competent judges and practitioners, acting in good faith, often disagree about the legal effects of a statute (in application to actual or hypothetical sets of facts), with disagreements often occurring at a basic level (e.g., should we focus on the plain meaning of the statute’s text, or should we focus on what the lawmakers intended to do). As the article points out, judges who disagree about statutory interpretation rarely come equipped with arguments about why some factors are relevant and others are not, or why some factors should be given greater weight than other (relevant) factors. As Greenberg indicates, any such argument would likely be in terms of why – and when — the actions of legal officials affect our moral rights and duties.
Greenberg’s Moral Impact Theory of Law points the focus elsewhere, in determining what counts as “law.” His approach focuses on the way that the actions of legal officials (lawmakers in passing statutes, judges in deciding case, etc.) affect our existing moral obligations, and it is those effects that are (our) “law.” Legislators may enact statutes and judges may decide disputes, but, under this approach, we only have “law” once we calculate the moral impact of those official actions on our moral rights and duties (and powers and immunities).
The Moral Impact Theory of Law has the advantage of being able to account for deep and lasting disagreements about the legal effects of statutes, decisions, and constitutional provisions. It is also, as Greenberg points out, consistent with the way that law seems to claim moral authority for the obligations it creates. This seems an audacious claim, but if and when it is rejected (as many modern legal positivists do), we are then left with a real mystery regarding what is meant by saying that someone “has a legal obligation to act (or refrain from acting) in a certain way” – in what does that “obligation” entail if it is not a moral obligation?
Greenberg’s Moral Impact Theory is related to, but clearly different from, an approach associated with the Natural Law tradition. Under this Natural Law approach (there are a number of different Natural Law approaches; this is just one of them), law can change our moral reasons for action (i.e., it changes our moral rights and duties), but only if the laws promulgated are consistent with morality and meet certain other substantive and procedural criteria.
The other approach with a surface similarity to Greenberg’s is Ronald Dworkin’s theory. As Greenberg characterizes the contrast, “the Moral Impact Theory holds that the law is the moral impact or effect of certain actions of legal institutions … rather than [as in Dworkin’s theory] the set of principles that best justify them.”
As an old theorist, set in my ways, it is probably not surprising that I am inclined to resist Greenberg’s provocative heresy. I resist any equation of the questions “what is law?” with “what is morally required?,” worried that merging law with morality in this way deviates too far from distinctions between law and morality central to both conventional and theoretical understandings. I can see the attraction of the view of those American legal realists who insisted that a legal obligation should be understood not in moral terms (the actions of legal officials clearly range from the morally praise-worthy to the far opposite) but in terms of what state force is likely to be brought to bear against one, through the courts or other officials, if one does not comply.
Note that there is no dispute across approaches – from Greenberg’s approach to Thomistic natural law theory to recent versions of legal positivism – that the actions of legal officials can at least sometimes change our moral rights and duties, and also at least sometimes fail to change them. The question is only at what stage the term “law” applies: at the stage of the officials’ action, or the stage when our moral rights and duties have been changed.
While I resist the approach, I recognize that that Greenberg’s “Moral Impact Theory” succeeds in responding to jurisprudential issues that more conventional approaches not only fail to resolve, but seem largely to ignore.