Law in Contemporary Society
The “M” word: Morality and the Law

In Lawrence v. Texas (2002)

Why isn't this a link? Surely you can help your reader find the case you're talking about.

two men were convicted for violating a Texas anti-sodomy statute.

In the opinion you are citing, their convictions were reversed. Isn't that the right way to describe the situation.

A host of constitutional questions regarding liberty interests were at play in this case.

What does "a host" add? Lawyer's precision would expect you to specify the questions at stake, and as the syllabus shows, it's possible to state the questions succinctly.

In my opinion, the most intriguing question out of this case was posed by Justice Scalia. Whether the court would no longer deem moral opprobrium sufficient grounds for legislation.

Sufficient grounds for what sort of legislation: Taxation, criminal liability, health and safety regulation? Is "moral opprobrium" a true category, such that everything subject to moral opprobrium would be equally appropriate as the object of any particular form of legislation? Aside from the turbulence of the judge's style of self-expression, what makes this an intelligent or interesting question, and not a load of bollocks?

This question of morality’s place in the law is fundamental to understanding the nature of the law. The modern conception of law is, as Felix Cohen described in 1935, “an autonomous system of legal concepts, rules, and arguments, [that] must be independent both of ethics and of such positive sciences as economics or psychology.” Similarly, Oliver Wendell Holmes in 1897, described this enduring perception of the law as “a system of reason, that it is a deduction from principles of ethics or admitted axioms.” Both legal positivist characterizations are rooted in the Aristotelian idea of “law being reason free from desire”. But the description of how the law is perceived to be is not where Holmes or Cohen end.

Holmes’ opinion of what the law actually is, is the bad man’s conception of the law “The prophecies of what the courts will do in fact, and nothing more pretentious.” According to Holmes, morals “deal with the actual internal state of the individual’s mind, what he actually intends.” So as Holmes sees it if the law is about outcomes then morality’s preoccupation with internal states of mind has no place in the law or at least shouldn’t.

No, he says the opposite of that. He also says, however, that if you want to know the law and nothing else, than you have to isolate it from the other forms of social thought and expression it closely travels with and resembles. This point appears to have confused you, though I warned you in class about the difficulty.

He admits that logic is not the sole force at work in the development of jurisprudence, but that “Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.”

The counterpoint to this is Felix Cohen’s reference to “forgetting terrestrial human affairs” to engage in the “transcendental nonsense” of the law. The irony that he presents is that human affairs and our moral concerns and considerations may in fact have everything to do with how the law actually works. Cohen points out that our conception of law as theorems and logic makes “a legal argument irrefutable by a moral principle or by any empirical fact”. But the reality is that dressed in the trappings of logic and doctrine one may arrive at the same guttural , morally driven outcome. The legal system permits the moral outcome but demands that it is arrived at through the charade of objectivity and logic.

Guttural means "in the throat," not wherever you thought it meant to place itself. I think this passage is accurate as to what Cohen says, but somewhat misleading as to how he comes to say it.

The legal idealism of seeing the law as aloof from the value judgments, narratives and emotions that accompany indoctrinated moral beliefs is an illusion. As unpleasant as the notion might be to Holmes, the other major force at work in ancient and modern jurisprudence is morality itself. The law could easily be described as humanity’s codified morality and nothing more. The law’s construction is as arbitrary, judgmental and value driven as the morality that influences it. I would argue that morality and not logic, is front and center in the construction and execution of law.

That wouldn't make much sense, but what Holmes actually says, which is that it is the deposit of our moral lives, which is what you are saying in the first half of the paragraph, under the apparent impression that you are differing from Holmes, I think we all from our different corners believe to be true.

The case that brought the role of morality in jurisprudence vividly to the forefront for me was the Regina v. Dudley and Stephenson case. Several conceptions of morality were at play in this case. The seafarer community had it’s own utilitarian moral code about what should be done when stranded on a boat in the South Pacific with a young boy, kill and eat him.

Perhaps you mean the Atlantic? And perhaps the utilitarian moral code is actually something a little less pragmatic?

In the court of public opinion Captain Dudley was not merely doing what was reasonable but what was necessary. He was a hero. But the third value system at play in this case, that changed the legal conception of the necessity defense in the case of murder, was British Victorian era values of propriety and romanticism. Beneath the veneer of civility in the trial of Dudley was the struggle between competing value systems. The conviction and release of Dudley was a moral instruction to British society of the ideal of what British values ought to be. If they had they drawn lots fairly, thereby having a volunteer, there may not have been a murder charge. The killing therefore is not the issue but rather the sense of order and gentlemanliness about “the whole nasty business of cannibalism.”

I’ve thought a lot about this case, I even watched the movie Life of Pi, in an attempt to further explore, why I was so deeply troubled at the idea that the option of “not eating anyone” was considered. I wondered if perhaps I believed that cannibalism should never be an option in any circumstance. Then whilst reading a Wikipedia entry on the Maori people of New Zealand I happened upon this sentence, “Initial contact between Māori and Europeans proved problematic, sometimes fatal, with several accounts of Europeans being cannibalized.

Upon reading the excerpt about cannibalized European invaders I was morbidly amused. My own value system that takes into account centuries of oppression of the Maori people and the history of genocide and conquest that has been the end result of European contact with the Indigenous peoples of the world, made the idea of European explorers encountering immediate mistrust and hostility from the Maori amusing. Other indigenous peoples, like the Maya of Central America, welcomed the Europeans as guests or Gods only to be conquered by them.

Some other people, in some other places. But I don't understand why you think that Maori resistance was unusual.

I believe I reacted that way because it represented a crude justice to me. Perhaps not even justice but vengeance. Ultimately I did not wish to delve further into why I had two competing judgments about cannibalism, but it helped me confront the idea that perhaps an investment in a legal education is not an investment in developing logical analysis to pursue logical and reasonable ends, but rather learning the language of logic to navigate the dominant system of morality that we call Modern American Jurisprudence.

I don't understand the organizational logic of this essay. Is it about morality as a source of law? If so, what's the argument, and where is the conclusion? Is it about cannibalism as a protest against imperialism? Where was the evidence that this is actually an attested practice? What the draft needs is clear structure, progression through the stages of developing an idea, and a conclusion affording the reader a jumping-off point for further thinking.


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r4 - 14 Jan 2015 - 22:23:38 - IanSullivan
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