Scott Hershovitz’s Law is a Moral Practice is an important and compelling contribution to general jurisprudence. It is also a delight to read, written in Hershovitz’s characteristically breezy and playful style, with anecdotes and examples throughout that illuminate and animate his picture of law in memorable ways. Readers will likely appreciate Hershovitz’s light argumentative touch. He encourages us to try out seeing law his way rather than insisting that law must be seen this way or that it is the only reasonable or useful way to see law.
On the moral practice picture—which is what Hershovitz invites us to call the theory of law he sets out in Law is a Moral Practice—law and morality are not separate normative systems. The rights and duties debated in court are moral rights and duties. It is thus the province of courts to answer moral questions. (P. 183.) And legal reasoning is a special kind of moral reasoning.
If legal reasoning is a special kind of moral reasoning, what makes it special? The fact that it is sensitive to the actions of legal institutions and officials. It is the special responsibility of judges to assess how legal materials—including constitutions, statutes, and precedents—affect enforceable rights and duties, and to decide legal disputes accordingly.
This sensitivity to the actions of legal institutions and officials explains why legal rights and duties are not necessarily—indeed, often are not—just as they morally ought to be. Judges might have a moral obligation to enforce a given statute even if things would have been better, morally speaking, had the statute never been issued in the first place. As Hershovitz observes, this dissonance shouldn’t be too mysterious, as outside the legal context we are familiar with moral obligations that it would be morally better if we did not have—for example, obligations created by promises can be like this. Like promises, “legal practices—like legislation and adjudication—are the sorts of activities that might, in the right circumstances, rearrange people’s moral relationships” (P. 28). Sometimes for the worse. But sometimes for the better.
Hershovitz’s picture of law is an attractive one. As he says, “so much about law snaps into focus if we see it as a moral practice” (P. 18). For one, the picture would explain why legal reasoning often looks like moral reasoning, even when the applicable law is settled (Pp. 10–12). This is a point that Ronald Dworkin also made forcefully, and Hershovitz’s view resembles Dworkin’s in many respects as well as other non-positivist accounts of law that embrace the “one-system view,” which takes law to be part of morality (including, notably, Mark Greenberg’s Moral Impact Theory).1
While I have many favorable impressions, the book did leave me with some questions and reservations. Hershovitz acknowledges that the word “law” carries a variety of meanings, and he wants to make space for these various uses—law can mean different things in different contexts and depending on our interests and purposes, and there’s no problem with that. “[T]here are many ways we might draw the boundaries of [the category law],” he writes, “depending on what we want to emphasize” (P. 27). But what he thinks we should emphasize, at least when we’re doing jurisprudence, is the authoritative nature of law, and the way in which legal norms are those that we have real reason to follow and that courts are responsible for enforcing (Pp. 82–86). Why emphasize this sense of law? Because “[i]t matters which of your rights you can enforce in court . . . and which you can’t. The other distinctions have their uses, but they are lawyers’ distinctions, far removed from the concerns of most laypeople, at least most of the time” (P. 40). And Hershovitz does not want to identify with any of the traditional camps of jurisprudence (positivism, natural law, etc.) because he does not find that kind of classification felicitous for his purposes. (P. 72.) But I think it’s clear that, for Hershovitz, law in the most important sense has real authority over us; norms that are legal are genuinely binding. After all, Hershovitz wants us to see “legal rights and responsibilities” as “moral rights and responsibilities,” and “moral assessment as internal to legal judgment”—that is a central aim of the book. (P. 173.) When “lawyers in court contest the rights and obligations that litigants have,” he says, they do not do so “according to a self-contained normative system, separate from morality”: “the rights claimed in courts are claimed as genuine—they are meant to move the court to action.” (Pp. 10, 192.)
The idea that legal norms are authoritative—truly binding—on judges and on the rest of us is important for Hershovitz because it is related to the value of seeing law his way. “Does it matter whether we see law as a moral practice?” he asks at one point. Unsurprisingly, he thinks it does. The main reason he gives is that viewing law this way “helps us appreciate the character of legal conflicts” as “moral conflicts—conflicts about who owes what to whom” (P. 175). That is a significant and appealing upshot. The moral practice picture provides a key to approaching legal questions. It also helps explain how judges might have a duty to apply legal materials like past judicial decisions even when those materials are morally problematic, as they often are, and why we might have a duty to follow legal norms even when they are morally defective. Further, Hershovitz emphasizes that lawyers are making moral arguments, ultimately. (P. 15.) To the extent that lawyers recognize this reality, they might approach their role differently, in some sense more seriously, and that would be a good thing. (P. 167.)
Although Hershovitz often makes clear and bold statements about the relationship between law and morality, sometimes I felt that it was hard to pin down exactly his view of that relationship. For example, he points out that “[a] person can have a right that she ought not to have, or lack a right that she ought to have,” and I am with him there. But he then concludes that there is thus “no guarantee that enforcing a person’s rights will be a way of doing justice” (P. 68). This conclusion seems in tension with his theory and makes me wonder if I have misunderstood it.
I take Hershovitz’s view to entail that enforcing a person’s legal rights will necessarily be a way of doing justice (as long as the enforcer gets the legal rights correct) because those are the rights the person really has (and whether or not she ought to have them is beside the point); she does have them and they are real, moral (also legal) rights. And so enforcing them is a way of doing justice—in fact, it is the way that courts do, and ought to do, justice—even if it would be better if things were arranged differently such that she did not have those rights.
Hershovitz does qualify, in an endnote, that “[g]iving people what they are owed is a kind of justice, but it does not exhaust the field” (P. 209 n.5). Okay, but so much of what Hershovitz says suggests that on his view legal rights are a kind of right that we are entitled to have courts enforce—not just legally entitled, but morally entitled—and courts do justice to the extent that they enforce those rights. And they do justice of, as Hershovitz would say, “the ordinary moral sort”: whether one has a right to have the right she claims enforced in court “is a moral question”—“it is a question about who owes what to whom” (Pp. 10, 156). In other words, does the court owe it to the claimant to enforce her demands against her opponent? That question is a complex moral one, which requires the court to determine whether, in its official role and capacity as a court, it is obligated to grant the claimant’s request that her opponent give her what she demands. When courts enforce legal rights and duties, then, they are delivering just the kind of justice that they ought to be delivering. And people are getting what they are owed.
Hershovitz discusses the white supremacist march in Charlottesville as an example, explaining how the city, in an effort to prevent violence, ordered that the march relocate away from the originally planned site. The organizers challenged the order in court, on free speech grounds. The court sided with the organizers, determining that they had the free speech right they claimed and had a right to its judicial enforcement. “[R]ight or not,” says Hershovitz, “the court was answering the moral question put to it, rather than trying to decide whether, all things considered, reinstating the permit [which allowed the white supremacists to gather in their desired location] promoted justice” (P. 69). But Hershovitz’s account of law seems to me to point to a different conclusion, which is that the court’s responsibility was to decide whether ordering the city to reinstate the permit would, all things—and notably, legal history and practices, and the court’s role as a particular type of governmental official—considered, promote justice.
If the court was correct and justice did require it to order that the permit be reinstated, that might well be an unfortunate fact, grounded in unfortunate past legal decisions. But on Hershovitz’s view (or my understanding of it at least), the court made a determination of what rights the marchers had a moral right for the court to recognize, all things considered, where an important subset of those things consisted of legal materials that the court did not have the authority to disregard or change. This means that doing justice might look different than it would look in ideal circumstances, where legal history and materials would have different content than they in fact have, but it does not mean that courts aren’t addressing all-things-considered moral questions. The legal rights we have are those rights that we are morally entitled to have courts enforce. That’s Hershovitz’s view. And if it’s right, then the role of courts is to decide whether, all things considered, the claimants are morally entitled to the judicial enforcement of the rights they claim.2
While I’m quite sympathetic to Hershovitz’s general picture of law, then, at times it seemed that he held back or qualified his claims where it might be most fascinating and challenging to press them further. In any event, thinking about law alongside Hershovitz is a pleasure, and I did read Law is a Moral Practice in one sitting, in compliance with the Rules of the Book, although sadly not while eating popcorn. (P. 74.) The book will undoubtedly spark various interesting developments, extensions, and challenges, and will have a lasting, positive impact on general jurisprudence.3
- Greenberg sets out his Moral Impact Theory in The Moral Impact Theory of Law, 123 Yale L. J. 1118 (2014).
- Hillary Nye presses Hershovitz along similar lines in Moral Decision-Making in the Name of Society (without Expertise), __ Jurisprudence __ (forthcoming).
- Thanks to Felipe Jiménez, Hillary Nye, Benjamin Ruiz, and Steven Schaus for helpful comments.
