Legal imperfectionism

ABSTRACTWhat role do moral norms play in the justification of legal norms? Here, I explore an answer that emphasises the moral significance of imperfection – of the fact that we are imperfect people, who live imperfect lives, and who have imperfect tools at our disposal for responding to our predicament. These imperfections, I argue, help make the case for (one version of) the harm principle. And they help make the case against the claim traditionally associated with legal moralism, namely that moral duties give law-makers reason to create legal duties with the same content. To accept all this is compatible with accepting – as I also claim here – that legal norms which help us better conform to moral norms are legal norms there is reason for law-makers to create. Those who accept this are nowadays dubbed perfectionists. Following John Gardner, I suggest that they are better thought of as legal imperfectionists.KEYWORDS: Harm principle; legal moralismperfectionismliberalismcriminal law Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 References to legal moralism in what follows are references to the traditional view. I discuss variations on that view, and defend a rival characterisation, in J Edwards, ‘An Instrumental Legal Moralism’ in L Green, B Leiter and J Gardner (eds), Oxford Studies in Philosophy of Law: Volume 3 (OUP 2018).2 This formulation may bring to mind Joseph Raz’s normal justification thesis. My claim in the text, however, is not a claim about what justifies the authority of legal norms. It is a claim about what justifies the creation and retention of such norms. (It is compatible, indeed, with the claim that legal norms are never legitimately authoritative). For Raz’s thesis, see J Raz, The Morality of Freedom (OUP 1986) 53ff.3 More, that is, than (those which) occurred prior to creation of the legal norm, and/or than (those which) would have continued to occur in its absence.4 It is a norm that, in John Gardner’s words, ‘retards rather than advances the cause of conformity with the very moral norms’ that justify its existence. See J Gardner, ‘What is Tort Law For? Part 1. The Place of Corrective Justice’ (2011) Law and Philosophy 1, 21.5 Those who believe in a general moral obligation to obey the law will of course disagree. I add myself here to the list of those who doubt that any such obligation exists.6 Say, because the exception would be erroneously taken to apply in a range of cases in which not stopping is dangerous.7 M Moore, Placing Blame (OUP 1997) ch 16.8 The suggestion is Malcolm Thorburn’s: see M Thorburn, ‘Criminal Law as Public Law’ in RA Duff and SP Green (eds) Philosophical Foundations of Criminal Law (OUP 2011) 23.9 See J Gardner, ‘Justification under Authority’ (2010) Canadian Journal of Law and Jurisprudence 71, 73; J Gardner, ‘Dagan and Dorfman on the Value of Private Law’ (2017) Columbia Law Journal 179, 195–96. Gardner attributes the suggestion to Michael Walzer.10 Parfit calls these moral immoralities: see D Parfit, Reasons and Persons (OUP 1984) 32. One of his examples is parental love. It would be wrong for parents not to love their children. Yet there are cases in which this love inclines parents to act wrongly, because of the added weight loving parents give to the interests of their children.11 This is a feature of what Raz calls competitive pluralism: see Raz (n 2) 401ff. In his words, ‘competitive pluralism admits the value of virtues possession of which normally leads to a tendency not to suffer certain limitations in other people which are themselves inevitable if those people possess certain other, equally valid virtues. The traits of character which make for excellence in chairing committees and getting things done, when this involves reconciling points of view and overcoming personal differences, those very trains of character also tend to make people intolerant of single-minded dedication to a cause. And there are many other examples’.12 The proper ends of legal institutions, I assume, are the ends that legal officials have reason to use the powers conferred upon them by those institutions to achieve.13 I base my remarks on Raz (n 2) chs 14–15. You may doubt that norms which tell us what it takes to live well are rightly thought of as moral norms. Ronald Dworkin says that they part of ethics rather than morality: R Dworkin, Justice for Hedgehogs (HUP 2013) ch 1. Here, I use the term moral to include what Dworkin calls ethics. But nothing much turns on this choice here.14 See Gardner ‘Dagan and Dorfman on the Value of Private Law’ 195.15 Why does interaction matter in this way? For different ideas, see AJ Julius, ‘Basic Structure and the Value of Equality’ (2003) 31 Philosophy and Public Affairs 321; T Nagel, ‘The Problem of Global Justice’ (2005) 33 Philosophy and Public Affairs 113; A Sangiovanni, ‘Global Justice, Reciprocity and the State’ (2007) 35 Philosophy & Public Affairs 3. A different version of the thought explored in the text is developed by Antony Duff. For Duff, we have duties to answer to fellow members of political communities for wrongs that impinge on the civic life of those communities. These duties do not – indeed cannot – apply in the absence of political communities. See RA Duff, The Realm of Criminal Law (OUP 2018).16 The most detailed account is Ripstein’s: see A Ripstein, Force and Freedom (HUP 2009). Ripstein’s ideas are applied to the criminal law in Thorburn (n 8).17 J Rawls, Political Liberalism (Columbia 1993). This norm is (in turn) thought to be entailed by norms of respect: see e.g., C Larmore, ‘The Moral Basis of Political Liberalism’ (1999) Journal of Philosophy 599; M Nussbaum, ‘Perfectionist Liberalism and Political Liberalism’ (2011) 39 Philosophy and Public Affairs 3. For doubts about the entailment, see J Raz, ‘Disagreement in Politics’ (1998) American Journal of Jurisprudence 25.18 The objection is developed at length in S Wall, ‘Is Public Justification Self-Defeating?’ (2002) 39 American Philosophical Quarterly 385.19 The late Rawlsian view described in the text might be understood differently. The idea might be that, while controversial moral norms are reason-giving for legal institutions, the reasons they give are necessarily defeated. The objection offered in the text applies, mutatis mutandis, to this alternative understanding of the view.20 RA Duff, Answering for Crime (Hart 2007) ch 1.21 R Dworkin, Law’s Empire (Hart 1986).22 Thorburn (n 8) 41.23 Gardner claims that those who are basically responsible have reason to answer to anyone. But he accepts that whether we are bound to answer to others is a further question, and that the answer depends on whether our accusers have ‘standing in the matter’: see J Gardner, ‘Relations of Responsibility’ in Cruft, Kramer and Reiff (eds), Crime, Punishment and Responsibility (OUP 2011) 90.24 For defence of these claims about moral standing, see J Edwards, ‘Standing to Hold Responsible’ (2019) 16 Journal of Moral Philosophy 437.25 I discuss this function at length in J Edwards, ‘Explaining Ourselves in Court’ in M Madden Dempsey and F Tanguay-Renaud (eds), From Morality to Law and Back Again: A Liber Amicorum for John Gardner (OUP 2023).26 Thorburn writes that Gardner is ‘committed to the view that legitimate criminal wrongs must all be moral wrongs and that criminal justifications should track the structure of moral justifications’: Thorburn (n 8) 23.27 [1971] 2 WLR 467. Discussed in Thorburn (n 8) 32ff.28 J Gardner, ‘In Defence of Offences and Defences’ (2012) 4 Jerusalem Review of Legal Studies 110, 115.29 These include cases of excuse. To create an excuse is not to grant a permission. It is to impose a duty on courts not to convict defendants for certain prohibited acts. Absent acoustic separation, such duties also have the potential to undermine the preventive function of the criminal law. This worry comes to the fore in the case-law on duress, the availability of which has been significantly narrowed in English law (Howe [1987] AC 417; Hasan [2005] UKHL 22). As Baroness Hale has observed, this narrowing inevitably denies defences to some who are morally excused. It does so in the name of discouraging membership in criminal organisations. The classic formulation of the worry – cited approvingly by Lord Bingham in Hasan – continues to be Lord Simon’s: ‘your Lordships should hesitate long lest you may be inscribing a charter for terrorists, gang-leaders and kidnappers’ (Lynch [1975] 1 All ER 913). For discussion of the same point in the context of self-defence, see J Edwards and T Yusari, ‘The Internal Morality of Criminal Law’ (OJLS, forthcoming).30 (1884) 14 QBD 273.31 P Foot, ‘The Problem of Abortion and the Doctrine of Double Effect’ (1967) Oxford Review 5.32 Like Lord Denning, Lord Coleridge appeals in these remarks to the fallibility of legal subjects. Other decisions appeal to the fallibility of courts themselves: see e.g., Quayle [2005] 1 WLR 3642; Nicklinson [2013] EWCA Civ 961.33 Thorburn (n 8) 32–36.34 This also matters, of course, for those engaged in rational reconstruction.35 Gardner describes himself in these terms in his From Personal Life to Private Law (OUP 2018) 198.36 See e.g., JS Mill, On Liberty (1859); Raz (n 2) ch 15; J Gardner, Offences and Defences (OUP 2007) 29ff.37 And the amount of harm prevented is not disproportionate to the costs of prohibition. I borrow the labels used in the text from Antony Duff and Sandra Marshall: see their ‘Remote Harms and the Two Harm Principles’ in Simester, du-Bois Pedain and Neumann (eds), Liberal Criminal Theory (Hart 2014). For discussion of the differences between HPP and other versions of the harm principle, see J Edwards, ‘Harm Principles’ (2014) Legal Theory 253.38 Thorburn (n 8) 30.39 Moore (n 7) 649.40 A Ripstein, ‘Beyond the Harm Principle’ 34 Philosophy and Public Affairs 215.41 For versions of this idea, see Raz (n 2); Edwards (n 37).42 In which, for instance, a criminal law will rarely be enforced, and in which the sentences available for violation do not include imprisonment.43 V Tadros, Wrongs and Crimes (OUP 2016) 101ff. For similar points, see J Stanton-Ife, ‘The Limits of Law’ in EN Zalta (ed), The Stanford Encyclopedia of Philosophy § 4.44 I say the harm principle rather than HPP because Feinberg consistently rejects the latter. He claims that law-makers are required not to prohibit unless this is necessary either to prevent harm or serious offence: J Feinberg, Harm to Others (OUP 1984) ch 1. For criticism of the italicised addition, see see J Edwards, ‘No Offense’ in L Alexander and KK Ferzan (eds), The Palgrave Handbook of Applied Ethics and Criminal Law (Palgrave 2020). The point in the text is that for Feinberg even this wider principle proves too narrow. A fortiori for the even narrower HPP.45 The example is Parfit’s. See D Parfit, ‘Future Generations: Further Problems’ (1982) 11 Philosophy and Public Affairs 113.46 J Feinberg, Harmless Wrongdoing (OUP 1988) 327.47 Some conceive of principles of justice in this way. Rawls writes that such principles only apply in the circumstance of justice. In these circumstances, we ‘suffer from various shortcomings of knowledge, thought and judgment’, which include ‘bias’ and ‘preoccupation with [our] own affairs’. ‘Unless these circumstances existed’, Rawls writes, ‘there would be no occasion for the virtue of justice’. See J Rawls, A Theory of Justice (HUP 1971) § 22.48 Feinberg (n 44) 5.49 Tadros (n 43) 94.50 It might be said that a single example would suffice if following HPP in that example was impossible to justify. In reply, it is worth recalling that HPP does not tell us what should be criminalised. It only tells us that some things may not be. Refusing to criminalise even a very serious wrong is not something that can never be justified. The refusal would be justified if, were law-makers to criminalise the wrong, there would be many more instances of very serious wrongdoing.51 It is often suggested that to defend HPP is to claim that, as a matter of raw morality, harm has lexical priority. Ripstein, for instance, suggests that HPP derives its appeal from a ‘harm for harm’ rule, and that the appeal is illusory because there are counterexamples to be found outside the law (Ripstein (n 40) 217). For reasons given in the text that follows, defenders of HPP need make no such claim.52 J Raz ‘Autonomy, Toleration and the Harm Principle’ in S Mendus (ed), Justifying Toleration (CUP 1988) 169; J Gardner, ‘Prohibiting Immoralities’ (2007) 28 Cardozo Law Journal 2613; Gardner (n 36) 76–77.53 One implication of the harm principle, so understood, is that it requires supporters of criminalisation to offer evidence that criminalising will have the effect of preventing harm. In turn, it entitles others to demand such evidence, and subject that evidence to public scrutiny. This requirement is often violated by those who pay lip service to the principle. Consider, for instance, the famous case of Brown [1994] AC 212. One reason given by the House of Lords for holding that consensual sadomasochistic activity ought to be criminalised, is that refusing to criminalise might lead to the corruption of young men. No evidence at all is offered by the court for the truth of this claim.54 P Devlin, The Enforcement of Morals (OUP 1965) 16–19.55 Raz (n 2) 404. See also Gardner (n 36) 118–19.56 Raz (n 2) 406.57 Raz (n 52) 174–75.58 Mill (n 36) ch 3.59 ibid.60 HLA Hart, Law, Liberty and Morality (Stanford 1968). Green discusses Hart’s argument in L Green, ‘On Being Tolerated’ in MH Kramer, C Grant, B Colburn, and A Hatzistavrou, The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy (OUP 2008).61 L Green, ‘The Nature of Limited Government’ in J Keown and R George (eds), Reason, Morality and Law (OUP 2013).62 The Crime Survey for England and Wales, for example, shows a consistent drop in crime from the mid-nineties onwards: see Office for National Statistics, Crime in England and Wales (2022). But the survey is limited to crime committed against those resident in households. So it excludes crime committed in institutions, including prisons, as well as crime committed against the homeless.63 By some 80% in the last 30 years. See The Prison Reform Trust, Prison: The Facts (2023) available at .64 For a recent study, see J Treadwell and K Gooch, Crime In Prisons: Where Now and Where Next? (2019) available at .65 Ripstein (n 40).66 Both parts are discussed in N Lacey, The Prisoner’s Dilemma: Political Economy and Punishment in Contemporary Democracies (2011 CUP).67 Tadros (n 43) 94–95. Two clarifications. First, Tadros is concerned in this passage with the harmful conduct principle. But his objections apply, mutatis mutandis, to HPP. Second, the last sentence of the passage refers to rules of thumb. Tadros does not explain what he takes rules of thumb to be, but it is often suggested that they have no normative force of their own. Such rules merely summarise the effect of moral norms that apply independently of them. I have argued that we are sometimes bound by constraints that apply in virtue of our fallibility. Constraints of this kind are not rules of thumb.68 Why ‘may’? Because if ought implies can, and law-makers cannot rid themselves of their shortcomings, they will lack the obligation mentioned in the text.69 Tadros might say that his objection applies only to state officials. Make Katie a policewoman, and the point remains.