Introduction
This essay critically examines Scott Hershovitz’s assertion that if law is understood as a moral practice, then the relationships it governs must also be considered moral in nature. Hershovitz, a prominent legal philosopher, argues that law inherently involves moral reasoning, as it is a system through which societies address obligations, rights, and justice (Hershovitz, 2015). This perspective challenges traditional positivist views that separate law from morality, suggesting instead that legal relationships—between individuals, institutions, and the state—are imbued with moral significance. The essay will first outline Hershovitz’s position, situating it within broader jurisprudential debates. It will then evaluate the strengths and limitations of his claim through an analysis of legal relationships in contractual and criminal law contexts. Finally, it will consider alternative perspectives that question the moral framing of law. By engaging with these points, the essay aims to provide a balanced critique of Hershovitz’s argument, demonstrating its implications for understanding the nature of law.
Hershovitz’s Conceptual Framework: Law as a Moral Practice
Hershovitz’s central thesis posits that law is a moral practice because it is fundamentally concerned with determining what individuals owe to one another (Hershovitz, 2015). Unlike legal positivists, who argue that law’s authority derives from social conventions rather than moral content (Hart, 1961), Hershovitz aligns with natural law theories, asserting that law cannot be divorced from ethical considerations. For instance, when courts adjudicate disputes, they often rely on principles of fairness and justice, which are inherently moral concepts. Hershovitz extends this reasoning to suggest that legal relationships—such as those between a citizen and the state or between contracting parties—are moral relationships because they are shaped by these underlying ethical obligations.
This perspective is grounded in the idea that law serves as a mechanism for resolving moral disagreements in a structured, authoritative manner. As Hershovitz (2015) notes, legal systems do not merely enforce rules; they interpret and apply them in ways that reflect societal values. However, this claim raises critical questions about whether all legal relationships can or should be categorised as moral. The following sections explore this issue by examining specific contexts in which legal relationships operate, testing the applicability of Hershovitz’s argument.
Legal Relationships as Moral Relationships: The Case of Contract Law
Contract law provides a useful lens through which to assess Hershovitz’s claim, as it governs relationships between parties based on mutual agreement and obligation. At first glance, contractual relationships appear to align with a moral framework, as they often involve promises and the expectation of fair dealing—concepts with clear ethical undertones (Fried, 1981). For example, when a party breaches a contract, courts may consider not only the legal terms but also whether the breach constitutes a failure of good faith, a principle that echoes moral ideals of trust and honesty.
Indeed, Hershovitz might argue that the very act of entering a contract creates a moral bond, as parties implicitly agree to respect each other’s rights and expectations. This perspective finds some support in philosophical literature, with scholars like Fried (1981) suggesting that contract law rests on the moral duty to keep promises. However, a limitation arises when contractual relationships are driven by purely economic motives rather than ethical considerations. For instance, large corporations often negotiate contracts with unequal bargaining power, exploiting legal loopholes without regard for fairness. In such cases, the legal relationship may lack any meaningful moral dimension, challenging Hershovitz’s assertion that all legal relationships are inherently moral.
The Complexity of Criminal Law: Moral or Merely Legal?
Criminal law offers another context for evaluating Hershovitz’s claim, particularly in the relationship between the state and the individual. Criminal law is often seen as deeply moral, as it addresses acts that society deems harmful or wrong, such as theft or violence (Duff, 2007). The state’s role in punishing offenders can be interpreted as upholding moral standards, protecting the community, and ensuring justice. Hershovitz (2015) might argue that the legal relationship here—between the state as enforcer and the individual as subject—is moral because it is grounded in shared notions of right and wrong.
However, this interpretation is not without problems. Critics might contend that criminal law relationships are not always moral in practice, especially when laws themselves are unjust. Historical examples, such as apartheid laws in South Africa or discriminatory legislation in various jurisdictions, demonstrate that legal relationships can enforce immorality rather than morality (Fuller, 1964). Furthermore, the state’s application of criminal law can be influenced by political or pragmatic concerns rather than ethical ones, suggesting that legal relationships may sometimes lack moral content. This raises doubts about the universality of Hershovitz’s claim, indicating that the moral nature of legal relationships may depend on the specific context and content of the law in question.
Alternative Perspectives: Separating Law and Morality
While Hershovitz’s argument has merit in highlighting the overlap between law and morality, alternative perspectives challenge the notion that legal relationships are necessarily moral. Legal positivists, such as H.L.A. Hart, argue that law is a system of rules rooted in social acceptance and authority, not morality (Hart, 1961). From this viewpoint, legal relationships—whether in contract, criminal, or public law—are defined by compliance with established norms, regardless of their ethical value. For instance, a citizen’s relationship with the state is legal because it is mandated by enforceable rules, not because it inherently carries moral weight.
Moreover, some scholars suggest that conflating law with morality risks undermining the objectivity of legal systems. Raz (1979) argues that law’s purpose is to provide clear, predictable guidelines for behaviour, which could be compromised if moral subjectivity is introduced into every legal relationship. While Hershovitz acknowledges these concerns, his framework does not fully address how legal systems can function effectively if moral disagreements dominate the interpretation of relationships. This limitation suggests that while his claim has theoretical appeal, it may struggle to account for the practical realities of law.
Conclusion
In conclusion, Hershovitz’s claim that if law is a moral practice, then legal relationships are moral relationships offers a thought-provoking perspective on the nature of law. His argument effectively highlights the ethical dimensions of legal systems, particularly in areas like contract and criminal law, where notions of fairness and justice often underpin legal relationships. However, a critical evaluation reveals limitations in applying this view universally, as legal relationships can sometimes lack moral content, especially when laws themselves are unjust or when pragmatic concerns override ethical ones. Alternative perspectives, such as legal positivism, further challenge the idea by emphasising the separation of law and morality. Ultimately, while Hershovitz’s position enriches our understanding of law’s moral undertones, it does not fully account for the complexity and variability of legal relationships in practice. This debate remains significant for legal theory, as it prompts ongoing reflection on how law should balance moral ideals with the demands of authority and predictability.
References
- Duff, R.A. (2007) Answering for Crime: Responsibility and Liability in the Criminal Law. Hart Publishing.
- Fried, C. (1981) Contract as Promise: A Theory of Contractual Obligation. Harvard University Press.
- Fuller, L.L. (1964) The Morality of Law. Yale University Press.
- Hart, H.L.A. (1961) The Concept of Law. Oxford University Press.
- Hershovitz, S. (2015) The End of Jurisprudence. Yale Law Journal, 124(4), 1160-1243.
- Raz, J. (1979) The Authority of Law: Essays on Law and Morality. Oxford University Press.
