Abstract

The innovative Moral Impact Theory (“MIT”) of law claims that the

moral impacts of legal institutional actions, rather than the linguistic

content of “rules” or judicial or legislative pronouncements, determine

law’s content. MIT’s corollary is that legal interpretation consists in the

inquiry into what is morally required as a consequence of the lawmaking

actions.

This paper challenges MIT by critiquing its attendant view of the

nature of legal interpretation and argument. Points include the following:

(1) it is not practicable to predicate law’s content on the ability of legal

officials to resolve moral controversies; (2) it would be impermissibly

uncharitable to claim that participants in the legal system commit

widespread error in failing to regard moral argument as the focus of legal

interpretation; (3) whereas the legal official may initially respond to a

conflict at the intuitive moral level, she must resolve the controversy at the

deliberative, critical level, at which moral and legal thinking diverge; (4)

because no two cases are precisely alike, and owing to the open texture of

natural language, reference to extra-jurisdictional “persuasive” and

“secondary” authority permeates legal argument, yet, nearly by

definition, such linguistic sources cannot have engendered significant

moral impacts in the home jurisdiction; and (5) one way or another, we

ultimately arrive at linguistic contents.

The paper concludes by accepting, as undeniable, that legal

institutional actions have moral impacts, and generate moral obligations.

Officials are obligated to adhere to certain constraints in their treatment

of one another, cases, litigants and citizens. Less explored, however, have

been the ways in which legal pronouncements likely morally impact the

community, beyond the issue of a duty to obey the law.

Keywords

moral impact, authoritative, Hart, Dworkin, Greenberg, positivism