Scott Hershovitz on Law and Morality

Nigel Warburton (0:02)

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David Edmonds (0:05)

And me, David Edmonds.

Nigel Warburton (0:07)

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David Edmonds (0:18)

We can have just laws and unjust laws. So, are law and morality entirely separate domains? If not, what's the link between them?

Scott Hershovitz is Professor of both Law and Philosophy at the University of Michigan.

Nigel Warburton (0:34)

Scott Hershovitz, welcome to Philosophy Bites.

Scott Hershovitz (0:37)

Thanks, it's great to be here.

Nigel Warburton (0:39)

The topic we're going to focus on is law and morality. Now, obviously, they're not the same thing, but what's the difference?

Scott Hershovitz (0:47)

So, there's a long tradition of thinking just what you said, of thinking that law is one thing and morality is another. And ultimately, what I want to do is push back on that picture. I want to try and persuade people that our legal practices are actually part of our moral lives and are intended to change our moral relationships. So, I think of our legal practices as a kind of moral practice in the same way that promising is a kind of moral practice. When I promise you, say, that I'll come by here at two in the afternoon to record a podcast, changing our moral relationship, giving you a right that you didn't have before, creating a responsibility for me.

And I think our legal practices, legislation, adjudication, regulation, are aiming to do something similar. They're aiming to create genuine rights and responsibilities, or sometimes to extinguish rights and responsibilities, but to rearrange our moral relationships.

Nigel Warburton (1:35)

And yet, they're not coextensive. Clearly, there are lots of moral issues about whether I tell a white lie in a certain situation or whether I choose to accept a better date than the one I promised to attend. Those aren't usually policed by law.

Yes.

Scott Hershovitz (1:51)

Let's actually just take a step back for a second. Let me tell you about how people have thought about the relationship between law and morality and how I want to try and shift the way people think about the relationship between law and morality. So a very standard picture, say, common for most of the last hundred years is that our legal activities create a new kind of normative system.

Legislation, regulation, they bring it about that there's new rules that we're subject to, new rights and responsibilities that we have. But these aren't moral rights and responsibilities. They're something different. They're the law.

And if you look at things that way, then philosophers have a certain kind of task. They're supposed to try and figure out how does that legal normative system get its content? What's the relationship between all the things that we say and do as part of our legal practices and the rules that get generated?

And there's lots of theories about that relationship, how our legal activities generate these new kinds of rights and responsibilities.

I want to invite people to think about the relationship between law and morality differently. I don't want them to think that our legal activities are generating new kinds of rights and responsibilities. I think when things go well, they're generating moral rights and responsibilities. But as you say, some of our moral rights and responsibilities, if the picture I've got is correct, some of them will be legal and lots of them won't be. So for instance, just go back to the promise that I made you to show up and record the podcast today. I think I have a moral responsibility to be here when I said I would be. I don't think I have a legal responsibility. What does it mean to say that I have a moral responsibility but not a legal responsibility? Well, one of the things it means is that nobody had any legal recourse in respect of the commitment that was made. If I showed up a little bit late or even if I didn't show up at all, you are not in a position to take me to court and demand a remedy. Now, if we had made a slightly different agreement, if I had offered to buy your house and we'd signed the appropriate documents, then you would have legal recourse. So I think of legal rights as a subset of moral rights.

One way to think about that subset is that they're rights that we're entitled to enforce through legal institutions.

Nigel Warburton (4:03)

I can understand that, but surely they don't come from the same place. When I think about morality, I think about it essentially as my interpretation of traditions that I've grown up with, but which I've come to embrace as part of me. So I've grown up in a society where it's considered immoral and illegal to steal things from other people, and most people grow up in those sorts of societies actually across the world. But perhaps there are some societies where a certain amount of pilfering is considered entirely legitimate.