The role of moral equality in legal argument

• Jurisdiction: South Africa
• Pages: 18-43
• Published date: 15 August 2019
• Date: 15 August 2019
• Citation: 2004 Acta Juridica 18
• Author: Stephen Guest

The role of moral equality in legal argument

STEPHEN GUEST*

University College London

I LAW AS A FORM OF MORAL ARGUMENT

What is an ‘analysis’ of the nature of law? Let us suppose that it means that

we have to f‌ind some convention amongst us that determines what

amounts to correct or incorrect understandings of law. It would follow

that we should regard something as law just because people – perhaps a

signif‌icant group of people – accepted it as law, for this is what

determination by convention means.

Note that this method would not help us in analysing morality. Murder

is not murder, or wrong, simply because 100% of people believe it is. So a

conventional account of murder is not possible: in fact, the very last

reason we would offer to say murder was wrong is that everyone thought

it was wrong. In justifying our condemnation of murder we would most

likely give as reasons, ‘a right to live’, ‘the wrongness of causing pain’ or

‘the sanctity of life’ and so on, but not: ‘100% of people think it wrong’. If

we did cite the beliefs of others as the major reason for our belief we

would merely be parroting the views of others – for example, like saying

‘murder is wrong because my father said so’.

People share moral views, true, but we do not think that they hold

genuine moral convictions unless they have formed their view indepen-

dently ‘for themselves’. Given that we share so many moral convictions,

it is not surprising that linguistic conventions have arisen expressing our

shared views – about murder, for example. And so, by convention,

‘murder’ is the word we refer to correctly when contemplating an

intentional killing motivated by personal material gain. (In other

countries, there are different linguistic conventions to express exactly the

same idea.) But it does not follow that the linguistic convention

determines correct understanding, or that it determines the correct set of

reasons that justify thinking this case to be murder. We can only say that

there is a ‘common understanding’ that murder is wrong, and this means

that each person independently holds a conviction that murder is wrong.

*Professor of Legal Philosophy, University College London. I would like to acknowledge

the helpful comments made at the conference by other participants, as well as those of the

participants in the Dworkin Colloquia in Legal and Social Philosophy at UCL one week

earlier, at which this paper was f‌irst presented. In particular,I should thank Ronald Dworkin of

course, Saladin Meckled-Garcia who introduced the paper, Octavio Ferraz, GeorgeLetsas, Riz

Mokal, Eva Pils, and Emmanuel Voyiakis. I would particularly thank Dick Posner who gave

me helpful and detailed comments but added, ‘It is an admirably clear statement of a point of

view with which, as you know, I disagree.’I am also grateful to Ratna Reuben who has made

helpful suggestions in correspondence and discussions.

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2004 Acta Juridica 18

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Not all understandings are held in common with others. Indeed, some

interesting and attractive understandings are not. We can invoke standard

conventions to refer to common understandings in order to challenge

them. That is clear when, for instance, we say of the destruction of stem

cells, ‘I call that murder’ or of some forms of euthanasia, ‘this is not

murder’. More radically, if, for example, someone said that justice is to be

found in the stars, or in desert caves, it would be wrong to say he has said

something contradictory, nor would we suppose he is reporting what is a

common understanding. We might be surprised but, once we learned he

had not made a mistake about the use of words, say, where by ‘justice’he

meant ‘hot gas’, we would wait for his argument.

This is only to say that neither conventional reasons, nor mere

descriptions of common understandings, def‌ine, or ‘analyse’ morality. We

learn from the judgements of others and part of what that means is that

we begin to appreciate appropriate reasons for these judgements. We

learn from our parents, and from others whom we think have special

moral insight, we respond to reasons, we change our minds, we respond

to the reported experiences of others. But what in the end counts is our

correct personal conviction on moral questions.

All this is not, of course, to deny that conventions can be an important

ingredient in our personal moral judgements. It is sometimes right for us

to respect the conventions of others, for example, by removing our shoes

when entering a mosque. In this sort of case, it is not the convention that

determines what we should do, but a duty of respect, or politeness, which

determines our conformity to the particular convention. (Our duty of

respect need not extend to observing all conventions, say, the ‘blooding’

of an initiate to foxhunting.)

We now come to the important question suggested by my title. Given

that law is so similar to morality, why should a different method of

‘analysis’ apply? The question is reasonable because the pervasive impact

of the law on our lives is similar to the demands of morality, most

importantly in the imposition of duties and the conferral of rights. That is

to say, given the likeness between law and morality, there has to be some

good argument to show why the obligations imposed by law should not

ipso facto be moral obligations, and in turn why the doctrine known as

legal positivism should be right.

Practical positivism

Let us imagine some practical purpose would be served by our adopting an

understanding that law was clearly identif‌iable by us all, by adopting a

criterion that specif‌ied laws as the product of a precisely – ‘positively’ –

def‌inable procedure, rather than of moral argument. Such a practical

purpose, if a good purpose, would provide an argument for thinking legal

and moral obligation to be distinct. The invocation of what would be

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THE ROLE OF MORAL EQUALITY IN LEGAL ARGUMENT

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