Robert E. Goodin: “An Epistemic Case for Legal Moralism”

Robert E. Goodin: “An Epistemic Case for Legal Moralism”

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CASS SUNSTEIN: Well, welcome
to the 2008 Dewey Lecture. It’s an honor, and a
pleasure, to introduce one of the world’s best and
most important social theorists, Robert Goodin, to
give the 2008 lecture. Let me tell you a few
bare facts, if I may. Bob is an American who took his
DPHIL in politics from Oxford in 1975. He spent ten years at
the University of Essex before moving, in
the late 1980s, to the Australian National
University, where he is now a Joint Professor of
Social and Political Theory and Philosophy in the Research
School of Social Sciences. Bob’s own writings spans
a truly amazing range, and I can’t think of any one off
hand, present company excluded, who shows the same kind of
quality and quantity of work. To give you a flavor, he has
written the best book, by far, on the ethical issues raised
by prohibitions on smoking. He has written the best book, by
far, on green political theory. On how to understand
environmentalism in a broader social context
as a kind of theory, and I commend to all of you his
amazing book Green Political Theory. He has written the best book,
by far, on why welfare exists and why it’s important to
protect vulnerable people. Not only that, he has produced
the best empirical work, by far, on the welfare state. I haven’t even mentioned his
foundational contributions involving utilitarianism
and deliberative democracy, nor have I said a word
yet, I’m about too, about his fascinating and
impassioned work on terrorism. All this is but a glimpse
at his contributions, in terms of his own research,
but those contributions are themselves only a
part of his contribution to understanding of economics,
politics, philosophy, law, and more. He is the founder of what
may well be, probably is, the leading journal in
political philosophy. Unimaginatively
named The Journal of Political Philosophy. He is the editor of numerous
reference works and volumes, including A Companion to
Contemporary Political Philosophy, and The New
Handbook of Political Science. He is currently, and
condolences to him for this, the general editor of
an 11-volume series of Oxford handbooks of political science
for Oxford University Press. He is himself editing two
volumes of that series. His official
service extends well beyond these contributions. He was the program
chair of the 1994 World Congress of the International
Political Science Association in Berlin, and he has done
much more in that vein. These are more mere
facts, but they’re enough to suggest what
everyone knows, which is that, Bob has not only
done extraordinary work in his own right, but he
also brings people together and makes them a lot better. University of Chicago
English professor Wayne Booth has a conception of
the implied author. An illuminating
idea which suggests that when we’re thinking
about works in multiple fields we might think
about the character of the author that is
implied by the writing. Bob has an implied author
who is engaged, committed, generous, fair, funny,
never contemptuous, alert to human foibles,
and never putting himself above the reader. Many of our best implied
authors are a little better than their actual selves. In this case, the implied
author is the man himself. For someone of this sort
to 2008 Dewey Lecture we need a sports metaphor. And I was tempted, and
still am, to start and end with Magic Johnson. Someone who is a terrific
scorer, a strong defender, an amazing rebounder, and as
good as anything at passing. But the better analogy
is LeBron James. A better scorer
than Magic Johnson, an even more joyful passer,
certainly a stronger defender, and a better rebounder. Torn between Magic
Johnson and LeBron James, I did a little
research and found a study of LeBron
James that actually had a section called the future,
and here are the key words. LeBron James continues to best
his own records each season. His performance
shows a mature player with leadership and
extraordinary ability. He will be exciting to
watch for years to come. It is an honor, and a
pleasure, to introduce my friend, the LeBron
James of academic life, this year’s 2008 Dewey
Lecturer, Robert Goodin. [APPLAUSE] ROBERT GOODIN: I should just
go home really, shouldn’t I? It is an unusual
experience for a short guy to be compared to a
basketball player, so I thank you for that, Cass,
and many other kind words. It’s a great pleasure to be
given this honor of being asked to give today’s lecture. Not least because I’ve been
regarding this University as my second home. I grew up next door for
the best part of 25, 30 years now, going back
every two or three years. So it’s an especially
nice, personal touch to be honored by this
University in this way. But, of course, it’s an
enormous professional honor to be asked to give
the Dewey Lecture. As Cass said, when he
invited me to do this, you know this is a lecture
that’s been given by Rawls and [? Worken ?] and Senn and
Rorty, and not too many others. Not to put any pressure
on you or anything. Well, I’m not Rawls. Among other things, I’m not
dead, but I’ll do my best. I’m also not a lawyer,
so take pity for that. But I was told it’s a law
and philosophy lecture, so scratching around for
some appropriate topic, touching on the wall that I
might talk about, I told Cass, oh yes well maybe I can
talk about legal moralism. And, from across
the pacific, one could hear the groan go,
oh God, not that again. But Cass is a tolerant
soul, so he said, oh well, if you think you got
anything new to say, by all means carry on. I hope I have, and you all
will be the judge of that. Legal moralism is the doctrine
that law should track morality, and a whole lot of high-minded
defenses of that doctrine have been offered
over the years. The classic high-minded defense
says morality takes priority. The boldest version says,
the natural lawyers claim, that morality is literally
constitutive of legality. Divine commands in the old
days, or moral imperatives of the secular sort nowadays,
are what makes law, law. It’s the job of the
legislature simply to write those into
the statute books and when they cock
up from time to time, and don’t succeed in that,
then it just ain’t law. Or a more modest
version of that says that, maybe morality is
not a constituent of law, but anyway it’s a critical
standard for assessing laws. Moral considerations are
the ultimate right-makers and wrong-makers
in the universe. It’s the job of legislators
to try to abide by them, or anyway not contradict them,
when writing the statutes. When they get it wrong, as
inevitably they sometimes do and they write something
else into the statute book, well it’s still law
but it’s bad law according to critical
standards of morality that stand above the law. Well those are fancy,
highfalutin arguments for legal moralism. Take no stand on whether
they’re correct or not. I just want to bracket those. That’s not what I’m doing today. What I’m doing today
is much more low-minded and much less lofty than that. I want to talk about a much
more pragmatic question, and somebody mentioned Dewey. The more pragmatic
question is, simply, how can we know what the
law requires of us? Various answers are possible. But the most plausible, at
least for a central branch of the law, is, to
my mind, that we should write the
laws in such a way as the laws track
broad moral principles. In that way we’re giving
best epistemic access to what the law really is. Ignorantia juris non excusat. I’m not a lawyer, my
Latin is bad, sorry. Ignorance of the
law is no excuse. So we are told by
virtually every legal code from Roman times forward. But why on earth not? I went across to the law
library when I got this job, and I measured up how many yards
were devoted to the US Code. By my crass count
something like 364 bound volumes of the
suckers were there. How am I supposed to
know what’s in all that? Add to it, the state laws. I had a friend go count
Burns Statutes over next door in Indiana. 43 volumes of that. Add on all the city and
municipal and county codes, I wouldn’t even know
where to look for those, much less count them. Throw on top of that all the
sort of administrative rulings of various dozen or dozens
of federal and state and municipal agencies. No one can possibly know all
the laws that apply to them. Ignorance of the law is, to
some greater or lesser extent, simply inevitable. Now, of course, there are
plenty of pragmatic reasons for insisting that
ignorance of the law is no excuse nonetheless. One of them is in a
delightful little 17th century tract by John Selden
called Table-Talk. Ignorance of the
law excuses no man, not that all men
know all the law, but because it is an
excuse every man will plead and no man can tell
how to confute him. In consequence, 19th century
juris prude, John Austin, adds the courts would
be hopelessly congested if they had to explore all the
claims that would inevitably be lodged if the ignorance
were accepted as an excuse. And furthermore, as Holmes said
in finally nailing the point, admitting that excuse would
perversely provide people with an excuse to avoid
finding out what the law says. So plenty pragmatic
reasons to pretend the law is no excuse for even to
hold to that doctrine maybe. Further evidence that it is
just those pragmatic reasons underlying the doctrine
that was found in the fact that, in practice and
notwithstanding the principle, ignorance of the law is
often taken to excuse conduct to contrary to the law. That happens, I am
told, for example, in cases involving a regulation
rather than a statute or an omission rather
than and action, or where the accused has
relied on authoritative, but as it happens, misguided
information on what the law is, or when the subject matter is
unlikely to have been regulated by a law or where
the statute doesn’t serve any important purpose. In all those sort of cases I’m
told that it often happens. That you can get by
with a claim that, well, I was ignorant of the law. Of course, we don’t
generally tell people that ignorance of
the law will probably be excused in such cases. Instead, for the
pragmatic reasons we were just talking
about, we let them think, ahead
of time anyway, that ignorance is no excuse. From the point of view
of natural justice, it’s only right
that illegal acts be excused for people who
did not, and could not know the law at the time they acted. It might be similarly
good, from the perspective of natural justice, that
illegalities be excused where people had no reason
to suppose there might be a law on the matter. The details of which they
should have ascertained. But as that other Austin,
J.L. Austin, middle century, mid-pass century,
philosophers said, excuses, they have to have a way of
getting you out of the fire and into the frying pan. Such circumstances, to
me, constitute bad news from the point of view of
the social function of law. If people have no
reason to suppose there might be a law
on the matter then their conduct can hardly
be guided by that law. The law then fails to fulfill
its central social function to be action guiding. Well I take it as
axiomatic that the law’s supposed to be action
guiding, and also that it’s supposed
to guide action relatively automatically. That is to say, people ought by
and large be able to determine and apply the law for themselves
without constant interpretation and constant enforcement
by courts and constables. Laws that require constant
interpretation and enforcement may still perform some
useful social function, but they serve that function at
considerably more social cost than one’s that are ordinarily
self-interpreting and self-enforcing. In his attempt to teasing
out the minimal content of natural law,
Herbert Hart invites us to consider what
is in fact involved in any method of social control,
rules of games or rules of law either, which consist primarily
of general standards of conduct communicated to classes of
persons who are expected to understand and
conform to the rules without much further
official direction. If social control of this
sort is to function the rules must satisfy certain
conditions, and Hart goes on to elaborate a few of those. They must be intelligible,
they must not be retrospective, and so on. But those familiar propositions
really just constitute the limiting cases. Of course, it’s literally
impossible for people to understand and conform to
a rule that does not yet exist or it is literally
unintelligible. But the method of social
control that Hart has in mind does not merely require that
it’s possible for people to understand and
conform to rules without further
official direction. It further requires that it
actually be probable, likely, that they’re going to do so. Now in ordinary discussions
of these topics, as best I can you all, the
emphasis falls heavily on those possibility conditions,
the limiting conditions. Especially on the
root requirement that laws have to be
promulgated to be law. If it hasn’t been
promulgated then ordinary citizens
have no way of knowing what the law is and can’t
guide their actions by it. But suppose a law has
been promulgated but only in a minimal sort of way. It’s been published
in an official record, only a few copies of
which have been printed. Or it’s been announced from
the steps of the courthouse but in some court language that
only a few people understand. It wouldn’t be literally
impossible for people to know what the law is then. It’s still pretty
highly unlikely that they’re going to
know what the law is, and a barely promulgated
law of that sort fails to perform the
central function of law. Almost to the same
extent, and for exactly the same reason, as a law
that’s not promulgated at all. Notice also that
maximizing promulgation is not necessarily the best way
to maximize the extent to which people know what the law is. So imagine, you
provide every household with all those 364
volumes of the US Code or digital access to same. That might maximize
promulgation, but doing that’s not
going to maximize the extent to which
people really know what’s in that 364 volumes. There’s just too much
of the stuff for people to wade through. Well, historically,
going way back, the principal reason I assumed
that ignorance of the law was not accepted as an excuse
was that the law was deemed to be something that everyone
knows or anyway something that everyone could
and should know. That first formulation, law
is something everyone knows, might have been true,
almost analytically so, in primitive legal systems
where customary law was the only kind of law there was. In a system of
customary law something counts as a legal requirement
if, and only if, it corresponds to the customary
practice of the people, and obviously people
know their own customs. It’s a second nature,
as the saying goes. That almost analytic
guarantee that people know what the law is
disappears as we move away from purely customary
law and towards systems that include edicts,
and statutes, and administrative orders,
and judicial precedents. At that point, the proposition
that everyone actually knows what the law is
becomes wildly implausible and the emphasis shifts toward
a very different proposition. That everyone could, and should,
know what the law requires. Lots of scorn has been
heaped on that proposition over the years. John Austin was
blistering on this point. That law might be knowable by
all those who were bound by it or that law ought be
known by all those who are obliged to obey it is,
I’m inclined to think, true. That any actual
system is so knowable, or that any actual system
has ever been so knowable, is so notoriously and
ridiculously false that I shall not
occupy your time with the proof of the contrary. Dreadful prose
craftsman [INAUDIBLE]. More fun is a quick reply
from Lord Mansfield, who said it would be very hard
on the legal profession if the law were so certain
that everybody knows it. Hard to make any
money off it that way. [LAUGHTER] Or another
English jurist acidly remarked that
everybody is presumed to know what the law is
except his Majesty’s judges who have a court of appeals set
over them to put them right. [LAUGHTER] And, of course,
the idea that today’s vast network of
government controls, and edicts, and
administrative orders, and all that known everybody
is more ludicrous than ever. Oh, but let’s go back. Even in Roman times the
rule as to ignoratia juris did not apply to certain
classes of individuals because it was considered that
these individuals, by reason of status or condition,
should not be expected to have knowledge of the law. Among people exempted in that
way were people under 25, so half the room is
safe from the looks of it, women soldiers, peasants,
and the mentally infirm. Significantly though,
they were exempt only in respect of the juris
civile, not the juris gentium. The rationale was that, while
their condition or status may be such that they cannot be
expected to know the details of the particular juris civile,
the juris gentium ius noble naturali ratione by everyone
whatever their status or condition. Glenville Williams
proposes that we resurrect that ancient
practice and adapt it to the circumstances of the
modern regulatory state. The distinction should be drawn,
he says, between crimes resting on immemorial ideas
of right and wrong, where it’s the
business of the citizen to know what he may legally do,
and modern regulatory offenses, of which the citizen would not
normally know unless there is something to put him on inquiry Moreover, the principle
of German jurisprudence could be adopted. That the defendant is required
to have exerted his conscience properly, making
inquiry as to the law where a conscientious person
should have reason to do so. Now I agree with that old Roman
principle and the principle of German jurisprudence
that Glenville Williams commends on the basis of it. There are certain
sorts of people and certain sorts
of activity that are governed by very specific laws. The details of which
the people concerned could, and should, be expected
to ascertain for themselves. Here are two big classes. Maybe there are more you
will tell me shortly. First is, there are certain
rules of law, a lot of them, that are power conferring
rather than duty imposing. Hart’s examples or rules,
such as those prescribing the procedures,
formalities, and conditions for making marriages,
wills, or contracts. When you set about invoking
the powers under law, writing will that’s going
to hold up in court, you must know that there
is some law that you’re trying to manipulate and you
should know that you need to check the details of that law
in order to invoke it correctly and efficaciously. So that’s one class. A second class,
main rules of law are not wide scope, applying
to everybody in general, but rather narrow
scope, applying only to people in very
specific roles. Lord Fuller agrees with
my initial observation about the vast array
of laws on the book. He says, any expectation
a dutiful citizen will sit down and read
them all is an absurdity. But Fuller thinks that
that absurdity is mitigated by the fact that the
great bulk of modern laws relate to specific forms of
activity, such as carrying on particular professions
or businesses, and it’s therefore
quite the material that those are not
known to the citizen. Anyone who is occupying
a very special role, a very specific social
role, could and should imagine that there might
be specific legal powers and duties attaching
to that role, and he could and should
take steps to ascertain what exactly those might be. In the old Roman
model, those cases seem, to me, to
concern people who know, and could surely
should be expected to know, expected to know that they
need to know furthermore, the juris civile, the particular
laws that apply to them, and the particular roles that
govern the particular powers they’re trying to invoke. I’m not going to be
concerned with those people, and I’m not to be concerned
with them for two reasons. First, as I just said, given
their special circumstances they should be expected to know
they have a need to know and go find out. Second, and more related to
what I’m going to go on to say, the content of the law that
governs such special situations is likely to be correspondingly
special, and, often enough, somewhat arbitrary. There is no
obviously correct way to write a will that’s
derivable from first principles. The exact form of words required
to make a will efficacious around here is
something you just have to go look up rather than
surmise from first principles. So I’m not going to be
worried about those cases. My concern is
going to be instead with a great bulk of
people in general, and how best to give them
epistemic access to the content of wide scope duty imposing
rules under which they live. So wide scope means outside
of any specific roles that give rise to those narrow
scope special responsibilities. Duty-imposing means rules of law
that are not power conferring, bracketing out those situations
in which people are knowingly trying to manipulate
the powers of the law. Epistemic access
just means enabling them to know the content of
the rules governing them. And my argument is going to
be that laws tracking morality is the best practical
means for giving people in general epistemic access to
what wide scope duty-imposing laws require of them. The classic case of wide
scope duty-imposing laws, of course the
criminal law, how do we know it’s against
the criminal law for us to do thus and such. Well, sometimes we have a friend
who’s just been sent down, sometimes we read about
the case in the papers, but by and large
we simply summarize what a crime is at
law from what we know about what is wrong morally. Indeed, reflecting
upon the moral is our ordinary way of
surmising the criminal. That’s so obvious that it’s
often overlooked I think. So here’s a passage in Lord
Fuller’s Anatomy of the Law. Suppose, Fuller
says, a citizen wants to know whether some act he
proposes to do is criminal. We’re assuming that the question
arises in an area of conduct where the ordinary
standards of moral behavior are an insufficient guide. And he goes on to tell a
story about some newsstand owner who’s wondering
whether it’s legal for him to open up on a
public holiday or not. For present purposes, forget
about the newsstand owner and just go back to
the bit I was quoting. How could it be
that a citizen is puzzled as to what the
criminal law requires of him? Well, as Fuller
says, we are assuming that the ordinary
standards of moral behavior are an insufficient guide. But that’s just to say I’m
here taking as my main point. That the ordinary way we
find out what’s criminal is to reflect upon
on what’s moral. That’s our first, best recourse. And only when that’s an
insufficient guide, only when morality is silent, or confused,
or unclear, or contested, do we need to make further
inquiries about what the criminal law
actually requires of us. The criminal law,
of course, is just the most dramatic example of
wide scope duty-imposing law. The same thing is true,
to a lesser extent anyway, of all other types
of law of that sort. As dear old John Austin observed
a century and a half ago, some laws were so obviously
suggested by utility– that’s his standard
of morality remember –that any person not insane
would naturally surmise or guess their existence. And most men’s knowledge of
the law is mostly of this kind. They see a particular
act would be mischievous, and they conclude that
it must be prohibited. The conduct of 19 men out
of 20 in 19 cases out of 20 is rather guided
by surmises to law, rather than knowledge of it. Smart dude, Austin. And he got that way
in one reckoning. For people to have
good epistemic access to the content of the
law, what’s needed are at least two things. First, they need a way to intuit
without detailed investigation what the law is for the most
common and important cases of their conduct. And secondly, and
equally important, they need a way to intuit it when
their intuitions are unreliable guides, and hence they
need to investigate further what the law actually
is by checking the book. I’m going to suggest
that letting wide scope, duty-imposing law track morality
is a good way of accomplishing both tasks. It’s easy enough to see
it is true as regards the first desideratum, I think. If law tracks morality in cases
where moral sentiments are uni-vocal and strong
then people don’t need to look up the
law in a big book. They need simply
to ask themselves what should be the
law in this matter and assume that that’s what
the law is on that matter. Furthermore, you get
common knowledge that way. I know that you
know, you know that I know that you know what the
law is, and so on and so forth. After all, it is, as Hart
says, an essential feature of any moral
standard or rule that is regarded as something of
great importance to maintain. This is manifested,
among other things, in the serious forms of
social pressure exerted not only to attain conformity
in individual cases but also to secure that
moral standards taught or communicated as a matter
of course to all in society. So by tracking morality
law can piggyback on all that apparatus
that’s already in place for promulgating
the moral code. The second desideratum
is that there should be a way for
people to intuit when their intuitions are likely
to be unreliable as regards the content of the law. I’ve already discussed
a couple of those cases. Remember the case
where we’re dealing with some power
conferring rules of law, or the case with narrow
scope rules of law that apply to people
in very specific roles. I want to move beyond that
now to cases where people need to intuit when their intuitions
are likely not to be reliable, even as regards to
duty-imposing, wide scope rules of law like
the criminal code. Well, here is one way. Suppose law tracks
morality, but suppose morality is and is
known to be unclear or contested on the
point in question. If there is no clear moral
ruling in this situation then neither can there be any strong
inference from morality to what the legal rule is likely to be. Just as that someone occupying
one of those special roles, or trying t the special
powers like writing a will, in this case you
just know you’ve got to go back and
check what’s actually written on the statute book. So does this just
amount to a suggestion that we revert to customary law? Well, it does if the
morality you propose writing into the legal code
is purely positive morality, the conventional rules of
society as you find it. It does not if the morality
you write into the law is critical normative morality,
what is really right and good independently of what
people around here happen to believe it to be. The epistemic argument that
I’ve been developing most naturally seems to
incline toward writing purely positive morality
rather than critical normative morality into the law. After all, it’s the
positive morality to which everyone
in the community has most immediate
epistemic access. But here Hart’s question
pulls us up short. Does the morality with which
the law must conform really mean the accepted
morality of the group whose law it is even though
this may rest on superstition or may withhold its
benefits and protections from slaves or subject classes? The question makes
me uncomfortable. One response would be to say
that the different arguments for legal moralism simply
pull in different directions. The pragmatics of maximizing
epistemic access to the law would indeed
recommend letting law track the positive
morality, however wicked. There would be epistemic
costs in deviating from that, but from the perspective of
the more high-minded forms of legal moralism,
those epistemic costs would be well worth bearing. High-minded legal
moralists would insist that law aught track the
requirements of true normative morality, however unfamiliar
people might find it. Those laws then of
course would have to be promulgated
and well publicized. If people there could
not easily intuit them, then so much the better the high
minded legal moralists might say, then the law would be
giving people a moral education and no bad thing. This first response
might go on to say, that while perhaps high minded
consideration should trump lowly epistemic ones
in cases of conflict, such cases of conflict
won’t necessarily arise all that often. Much more often than
not, we can allow law to track positive reality
without any great moral cost. And in so doing will greatly
enhance epistemic access to the law, thereby helping law
to do what it’s supposed to do, which is guide our conduct. Well, I think that probably
is the right response, but let me add a
second response that tips the scales
of that trade-off a little more toward critical
normative morality for purely epistemic reasons. And the thought
here is just this, that letting law track critical
normative morality rather than purely positive
morality should also be preferred for the same
reason the common law is to be preferred to customary law. The common law is really just
the customary law among judges. But what makes the
customary law among judges superior to the customary
law among the folk is that the judges feel
obliged to bring their practice under some principles,
to treat like cases alike and different cases
differently only in proportion to their differences along
some principle dimension. Of course, the principles that
the judges collaborate quickly become quite complex
and there is no chance that any ordinary punter
is going to know everything in the 30 volumes of
the restatement of laws anymore than there is that
he’s going to know everything in the 364 of
volumes of US Code. If citizens want to surmise
the law for themselves they need something
far simpler and more straightforward than the
plethora of principles that judges have
written into common law. Still, it’s easier to
work out common law from first principles than it
is to work out statutory law from first principles. There’s no telling
what those legislators might have gotten up to
some late nights sitting toward the end of the session. In similar fashion, it’s easier
to work out normative morality from first principles than it
is to work out positive morality from first principles. The customary moral practices
of any particular place have a long history of
assorted accretions. There’s no rhyme or
reason to most of them. Like statutory
law, you just have to learn them off by heart. And if there are gaps in
your knowledge of them, then there is little you can
do to fill in the missing bits by adducing
from what you know about the rest of the
customary moral practices. Critical normative
morality, by contrast, is arguably organized
around a small set of fundamental
principles precisely so people can work
out for themselves what morality requires of them. After all, there
are no moral courts that issue authorized
interpretations of the moral code. Critical normative morality
must be structured in such a way that, by and large, people
are able to work out its edicts for themselves. If we think that laws
retract track morality purely for the pragmatic
reason that in that way we give citizens better
epistemic access to the content of the law, then it’s those
simpler and more readily accessible principles of
critical normative morality that it should track. Purely positive morality
is less predictable, less straightforwardly
derivable from first principles, it’s less epistemically
accessible to people in consequence, and
less epistemically suitable as a basis for law
for that reason. So far I’ve been mounting
a case for law, at least in its wide scope duty-imposing
aspects, to track morality and to track critical normative
morality rather than purely positive morality. And the reasons I’ve offered
are purely pragmatic ones. That’s the best
way to give people in general epistemic access to
the content of the law that’s supposed to guide their conduct. That’s an important
pragmatic consideration. But of course, there may be
other pragmatic considerations, there may be other
principled considerations, weighing heavily in
the opposite direction. So the reasons I’ve been giving
you are just pro tanto reasons, not conclusive reasons
for letting law track critical normative
morality in that way. To say the law
should track morality is, strictly
speaking, to suggest that the law should prescribe
or proscribe phi if, and only if, morality,
critical normative morality, prescribes or proscribes phi. The epistemic
considerations that I’ve been giving you
so far really only give you grounds for the only
if bit of that bi-conditional. They provide epistemic
grounds for thinking that law, in its wide scope,
duty-imposing aspects anyway, should instantiate
only morality. The question I want
to raise in closing is whether anything
I’ve said implies that law should instantiate
all of morality even just in critical normative
rather than positive form. Now, of course,
that’s the question that was more at the heart
of the old fashioned, conventional debate over the
legal enforcement of morality. What Hart and Devlin
were arguing about after all is whether
homosexuality should be illegal just because, as both
assumed, it was immoral. Now, that judgment of
conventional morality of the 1950s that both Hart
and Devlin shared itself ought be brought subject to
some pretty critical, normative moral scrutiny and may
not withstand that. Let’s bracket that issue. Beyond that, notice
that that was in itself a debate within critical
normative morality. Whether or not there
should be some space for people to engage in purely
private regarding acts, however immoral, without bringing the
full force of the criminal law to bear upon them. The fact that an act is
or may be morally wrong is sufficient to put the general
public epistemically on notice that an act might be
legally prohibited. What it tells people
is, you better go check. So my conclusion is
that law need not enact every aspect of
critical normative morality. There might be good reasons
for leaving some of that off the statute book. But the fact that the act
is at least arguably immoral gives every one fair
notice that they better go check the law for themselves. And telling everyone think
twice before behaving in ways that are arguably
immoral, think twice, go check, that’s not bad advice. Thank you. [APPLAUSE] CASS SUNSTEIN: Many
thanks to Mr. James for scoring so many points. What we will now do is take
questions till about 5:20, at which point there’ll
be a reception. And Martha has the
first question. MARTHA: I wanted to ask you
about a Rawlsian distinction to see if you would accept
this as a supplement to the argument. There’s a part of morality that
all citizens, let’s suppose, were given their different
religious doctrines or secular doctrines can
be expected to share, and then there are other parts
that the citizens are aware or should be aware of they can’t
expect other citizens to share. So isn’t it this first part
that we should be thinking of when we think about law? And shouldn’t we be
encouraging citizens to be aware of that distinction? And, let’s say, suppose
their religion tells them you [INAUDIBLE] court,
they should not expect to look that up
in the statute books. They should be well
aware because that isn’t something to which
they can give public reasons to other citizens. They shouldn’t expect
that there will be a law forbidding that for all. So would you accept that as
an extension or a supplement to your position? ROBERT GOODIN: Good. For sure you want to enact
those first class of laws. At this point I’m
going to wobble a bit between the customary
law conventional morality and critical normative morality. As regards to the
second class of laws, you shouldn’t think
you have a right to demand that they be
on the law book for sure. You shouldn’t expect
as a prediction that they will necessarily
be on the law book. But if you live in
a community that’s split between these
fundamental moral codes you better have a reason. You’re epistemically on notice
that might well be that, because I live in a
mixed society like this, there are going to be some
special provisions about pork. And if I’m a restaurateur,
even if I’m just an ordinary citizen,
might have reason to go check and make sure
what the law is on the books. MARTHA: But see, I
guess what I’m saying is when you think about
what critical normative morality ought to be that
is pertinent to the law, we aught to be very
careful to exclude from that the things
around which to which there are reasonable
disagreements. Which actually would include the
morality of homosexual conduct. That I think is interesting
that Devlin didn’t actually say we should avoid
it just because it’s immoral he had an actually much
more complicated sequentialist argument having to do with
people refusing to fight in wars because they were
so swept up in degeneracy and so on. Suppose all we
could say against it was that the vast majority of
religious doctrines, and maybe even secular ones, in our
society think it immoral. Shouldn’t critical normative
morality say, wait a minute, is that sort of thing for which
we can give public reasons. And if the answer that is no,
well, then, we better leave it out of the law, no matter how
majoritarian the sentiment in favor of it would be. ROBERT GOODIN:
Remember, my problem is not what we should
write into the law but the epistemic access issue. And so, looking at it from
a citizen’s point of view, what’s likely to be law there? You surely ought to expect
that anything that withstands the first Rawls test,
that really withstands critical normative
morality, you expect that’s going to be in there. Almost bet your
bottom dollar on that. Be real surprised if it wasn’t. The other, nobody would have
any good claims that that should be written in the law,
but you ought just be a little bit wary from
the citizen’s point of view, I guess, is all I’m saying. It’s not I’m
providing an argument that it should be a law
that, just fair warning to the citizen. From the citizen point
of view rather than the legislator’s point of view
seems, to me, the right answer. CASS SUNSTEIN: I think
that Cass has a question. ROBERT GOODIN: Oh, well why
don’t we have Cass then? CASS SUNSTEIN: Cass, your turn. This follows up on
Martha’s question. I didn’t quite get the
jump from customary law to critical normative
morality insofar as speaking epistemically. [INAUDIBLE] a little bit. If you have a conception theory
of the representative where the representative is closely
tracking citizen behavior, then the representative
would just be reflecting any
conventional morality and the epistemic
problem would be solved. But suppose you had a conception
of the representative’s role that’s more deliberative and
critical, as I think you do. So the representative
might think, well what people think morality
requires isn’t quite right, and I have a critical approach
which would require me to not punish things, Martha’s point,
that conventional morality punishes, but also some things
that conventional morality is OK with. Maybe hate crimes or something? On that account, it might
be epistemically demanding to require the
ordinary citizen to try to follow the critical
morality of the representative. But odd for me to
say, kind of so be it. I’m not sure what the pro
tanto argument is doing. If you are going the critical
route, which I guess you are, I don’t see how the
argument goes through. ROBERT GOODIN: I think I’m going
to play a moral schizophrenia card on you here. And the argument is this. If your representative were
just writing your prejudices into the statute book, and
if everybody’s prejudice was the same then
of course you’d have immediate epistemic
access to that. The people have two souls,
the moral schizophrenia card. People know what their
blind prejudices are, and standing back
in Sunday school. Something they know– yeah,
there is a blind prejudice. I really shouldn’t have it. It’s really naughty,
really nasty. Throw in this sort
of mixed community. Different people have
different prejudices. It’s the job of the legislator
to speak to my higher self not my baser self. It’s the job of the legislator
to speak for all of us rather than particularly
bigoted sections of the community who are
bigoted in different directions across different sections
of the community. Who’s going to write in my
Sunday school morality rather than my day-to-day prejudices? Do I have epistemic access
to my Sunday school morality? Well, just change hats. Of course you do. Do I have better
epistemic access to my Sunday school
morality than I do to the average base
prejudice morality across the whole
diverse population? Probably. CASS SUNSTEIN: Doesn’t that
identify Sunday school morality with critical
normative morality? ROBERT GOODIN: That
was exactly the idea. CASS SUNSTEIN: And wouldn’t
that be a surprise, wouldn’t it, if one critical normative
morality required is actually Sunday school morality, what,
in the United States 2007? ROBERT GOODIN: I’d rather leave
the indexical off, of course. The thought is that
we philosophers like to think we do it better, but
that the fundamental principles of morality are fairly simple,
at least in baseline cases. People can do it reasonably
well for themselves. CASS SUNSTEIN: That’s a dramatic
segway, Richard Epstein. RICHARD EPSTEIN:
I’d like to go back. Basically, three
norms, two we like and one [INAUDIBLE]
We’re never quite sure as the homosexuality
example exists. What are we supposed to do
with this ubiquitous theory of evolutionary
norm [INAUDIBLE] I want to [INAUDIBLE] Because I
think with this a peculiar way in which [INAUDIBLE]
doesn’t quite handle the epistemic problem
the way in which we in fact handle it. Anyone whose trying to think
about how information gets transferred doesn’t want to
adjust on common morality, doesn’t want to on
the statute book. There are all sorts of
intermediate organizations that are always brought to
bear in the way in which [INAUDIBLE]. So if you’ll look
at the statute book, it’s not as though there’s 42
binders that relate to this, but there may be one [INAUDIBLE]
a restaurant was probably more than that and so forth. And what happens
is, that if I know I’m in that kind of business,
I join a trade association, they hand the bulletins out,
and all the sudden things that have no normative
content, like when you have to file for you
permits and so forth, become handled by [INAUDIBLE]. Now isn’t that
indicative [INAUDIBLE] that once we have
systems like this you can actually run a
somewhat larger stake with more complicated
administrative situations than the very simple account
of epistemic knowledge that you gave handling one
in which you see that sort of emblazoned on everybody’s
doorstep, or as far as common morality. And should some effort
to try to figure out how normative morality
works that takes into account these alternative
and commonly resorted to modes of information
dissemination? ROBERT GOODIN: Sure, and
those are the narrow scope duties I was talking about. This is how to
write a will, this is how to run a restaurant. You’re in a special
role doing something that’s likely to be
governed by statutes, the details of
which are inevitably arbitrary at the margins. You got to go look it up. I mean that’s absolutely right. Exactly as you
say, that’s how we get to big and complex
society by partitioning off little bits of the statute. But the residuals– No, it’s important. I’m sorry, sorry. I’m a student of [INAUDIBLE]. I know it’s important. I know it’s important, but
I have a sneaking suspicion that criminal law is too. That sort of answer, who were
the intermediary associations that tell us what
the criminal law is? RICHARD EPSTEIN: In
many areas, for example, in how you run a
restaurant, there are lots of areas
of statutory fines or statutory criminal
offenses and so forth. And at that point this
mechanism becomes there. There is, at least in American
law, a peculiar doctrine that certain kinds of things
for which ordinary citizens have to do, for which there can
be non-expectations, you do imply the [INAUDIBLE]. A famous case
involving a situation where you had to register when
you went to the city of Los Angeles in 1956. Some poor guy, who’s a former
criminal, did register, and the question is whether
he could be punished. And they actually gave
it a due process kind of exemption, because
they said, who would expect that kind of a
registration to take place. I think actually
expectations today with [INAUDIBLE]
and molestation laws and so forth may well
have switched away from that earlier [INAUDIBLE]. I think now we basically
expect former criminals to go to a website and
figure out former criminals’ obligation to report. [LAUGHTER] ROBERT GOODIN: Yeah, that’s OK. Here I’m going to be even
more lawyer than lawyer. So I’m just going to go with
the criminal, the ex-con, a guy with a record as like
a restaurant owner. He’s in a special
role, he should know that he’s got
special things that are going to apply
to him and he better go find out what they are. When I’m talking about
the criminal law, I’m doing it in a
fairly loose way. As law that applies
to citizens in general rather than even that
particular ex-criminal. RICHARD EPSTEIN: The
expectation used to be reversed. 50 years ago the
guy won [INAUDIBLE]. ROBERT GOODIN: Yeah. Yeah, yeah, yeah. Yeah. AUDIENCE: I was
wondering if you might have some thoughts on the
project from another direction. Which is, instead of asking
if ignorance of the law is an excuse, I’m wondering
if knowledge of the law creates an entitlement. So, I’m a proceduralist,
and this talk makes me think of
things [INAUDIBLE]. So, in other words,
instead of using ignorance of the law as an
epistemic shield, using knowledge of
the law as a sword. And deciding to go and litigate
in a certain jurisdiction because the laws there
are more advantageous. Or, on the more regulatory
side, decided, for example, to open your
factory in a country where the wage laws
and environmental laws are much less stringent than
in your own jurisdiction. And whether that specific
knowledge of what the law is might give you some
sort of an entitlement to be ignorant in a way of
the moral questions behind it. So, in other words,
as long as I dot all my I’s and cross all my
T’s, have I somehow obliterated any obligation to look
further and engage in the certain moral inquiry
that I can find in regulations. ROBERT GOODIN: It’s
nasty but probably true. I’m afraid you’re
probably right on that. I guess a slogan that I’d
be tempted to play with, and I’m not whether I
could get anywhere with it, would be that knowledge
of the law is a burden and imposes obligations. Flip the ignorance of
the law thing on its end. And so bad news for you guys. All this time you’re
spending learning the law you’re creating all
these massive obligations. An idea, I suppose,
you go to court and say, excuse me your
lord, I didn’t know. And he says, what
you do for a living? And you say, I’m lawyer. Bad luck. So knowledge of the law is
a burden is another slogan. AUDIENCE: I wanted to
follow up on Cass’ question of the gap between
[INAUDIBLE] Am I right in assuming that
you just don’t think there’s that much of a gap? The problematic example
is when, as Cass says, the critical normative
morality would seem to prohibit something that the
positive morality doesn’t. I wanted to mention, a
common area would be violence in a certain context of
domestic violence or where norms of revenge are met with violence
in certain cases where critical normative morality wouldn’t. Maybe that’s what you
meant by Sunday school. That it some calmer moment
people know that’s true. But I guess I’m very
skeptical about that. I think people
very deeply believe that it’s not just that they do
it in their more lucid moments but that they actually
think that that’s right. You’re entitled to use
violence in that case. Another example might be, maybe
critical normative morality should prohibit the killing
of animals for the things that we kill animals
for in ways that would be a great surprise
to a great many people. I guess the way to
ask this question is, do you think there
is such a gap? Do you think that the
laws ought to then give some sort of defense of people
who genuinely are surprised because their actual
morality doesn’t put them on notice as to the fact that
the law might regulate it? Another way to
posit that example would be what about somebody
who comes from another culture and is an immigrant
to a new community. Are they just automatically
on notice for everything? They should just sit down and
read the code book because they might be surprised? Or can we, if in fact their
critical and positive morality is sufficiently
different, then they might actually be
quite surprised. ROBERT GOODIN: Yes, well,
I mean, on the latter, I think the answer is both
morally and legally clear. I know I’ve spent most of
my working life as an object rather than a
subject of the Crown. I’ve lived somewhere
I don’t belong. I’ve known all along that
I was on notice that things are weird around here and
I’d better go find out before I do anything dodgy. On the wife abuse issues
and things like that, or animal abuse, The
structure of my argument requires it to be the case,
and it’s an empirical claim whether or not it is
the case, that people to have epistemic access to
what critical morality would require. At least as good
epistemic access as they do to what customary
morality requires. Maybe a little better. And, if that’s not the case,
then my argument is stuffed. It just rests on that
empirical proposition. I can well imagine cases in
which that’s just not true. So imagine the animal
liberation argument before we realized the pain
caused to animals before we had the scientists
doing the metrics that showed the sort of
spikes when you jabs needles in them and things. In a timeless critical
morality framework it was always wrong
whether or not we knew it was wrong to
jab the needles into them, but only now you have
we epistemic access to the fact that it
actually is causing pains and we shouldn’t do it. In cases where we
just don’t know, where we don’t have any
possibility of epistemic access to what critical
morality really requires, then obviously this
epistemic argument for writing a legal
code in a way that tracks that doesn’t make sense. And to that extent, Cass’
indexical of critical morality today, is right. What we know about morality
changes over time if critical morality itself doesn’t But, by and large, I
think the Sunday school story is broadly right. That people, even
when it’s generally accepted you can beat your wife,
all the boys joke about it down in the pub, you know it’s wrong. You know that everybody’s
going to laugh about it, you know you’re going
to get by with it, and you know it’s wrong. And that’s a bold and
purely empirical assumption. AUDIENCE: I was if you
could say something about whether your account
cuts wood against certain kinds of paternalistic laws. [INAUDIBLE] I’m not sure what
ordinary moralities [INAUDIBLE] unless you’ve taken care
of the area, in which case you say, well, of
course, why wouldn’t you act on this utility? That seems like
the kind of thing where a lot of dispute because
a lot of utilitarianism is the right way to
go with morality. So I was having a hard
time figuring out what that kind of answer is. Other kinds of
things [INAUDIBLE]. ROBERT GOODIN: Of course,
suicide is not something that you can’t have
much time for either. So it’s not just utilitarianism. My hunch is that that’s a hard
one for the same reason that self regarding acts,
homosexuality and all that are hard ones, which is
to say, we have intention within critical
morality of doing the right thing on the one
side, and on the other side giving people space
to lead their lives in a way of their choosing. And there is a good reason
within critical morality for doing that. The first pushes you in
favor of paternalism, the second pushes you
away from paternalism, and I think that’s
just attention within critical
morality probably. So when I say law track critical
morality for epistemic reasons, critical morality is
providing a two headed arrow and it’s no guidance. And so, we do
throw up our hands. So I think that’s the
diagnosis I’d offer her of why it’s a head-scratcher. AUDIENCE: [INAUDIBLE]
indicated or suggested there’s another vehicle for
disseminating information [INAUDIBLE] low
or zero penalties for personal risk [INAUDIBLE] ROBERT GOODIN: My only objection
to that, of a principled sort, I guess, it was always my
objection to the sort of rule in universities that you
only could hang people on their second
plagiarism offense. It’s just invitation
to plagiarize once. Do you really want to
give them the bye the time they commit murder? So that particular plank
anyway, seems to me, not altogether comfortable. You want to say, look there
are somethings we just should be able to assume you know. Better state
promulgation of the laws, better efforts to get
the laws out there? Well, I guess you
could boil down the 364 volumes of US Code. Or even, bracketing off the bits
that are role specific, the 25 volumes of US Code. I guess could boil it down to
a pocket book of some sort. Just like the driving code
is that thick on the statute books, but it’s 15 pages in
the driver’s license bureau when you go down and get
you driver’s license. Maybe you could have a sort
of pocket book version, but boiling 20 volumes down
into a pocket book version doesn’t sound like it’s
going to fit into a pocket from my point of view. So I’m a little bit skeptical of
whether that strategy is going to work all that well
without your give them a bye the first time. It seems to me, to
have other costs. AUDIENCE: I have a
question on your theory. It works pretty well
on the is this a crime, is this not a crime. What about the variable
punishment angle? We don’t punish all
crimes [INAUDIBLE] don’t see a way of any
sort of empirical morality or any other system will be
able to determine exactly how much a particular
crime were punished. If that is something that people
will always have to look up, [INAUDIBLE] current system aside
from what you choose to punish and what you don’t? ROBERT GOODIN: I think
critical morality comes graded, doesn’t it? There’s some things that
are really bad according to critical morality unless
you’re some stupid Kantian. There are smart Kantians,
I hasten to add. It’s not just right line,
all equally bad on that side, and all equally
permissible on that side. And if critical
morality comes graded, you can’t read the exact
number of dollars or number of years punishment off it,
but you get some sort of scalar from critical morality as
to how bad the punishment’s likely to be for
an act depending on how bad critical
morality says it is. AUDIENCE: Going
back to Professor [INAUDIBLE] My
priority is to people who the instinct of [INAUDIBLE]
hasn’t been developed by virtue of how they grow up. For example, you
said the first time you think about,
is it moral or not, if that begs the
question [INAUDIBLE] But I think people who want to
use [INAUDIBLE] as an excuse, while other people say,
I grew up in an area that we don’t have libraries
quite readily available, or it’s not stocked as
well as other areas. Even if that’s so, I never knew
I could just go look it up, so what if then
you say, well, this is your first time violating
[INAUDIBLE] because for bigger crimes of murder and
stealing and things like that, that will be done the
way we did the moral intuition part of it. But I think you’re going to
have this situation [INAUDIBLE] So whatever [INAUDIBLE]
violation on that also translates [INAUDIBLE]
help spread information to areas where law school
libraries or things like that have been built? ROBERT GOODIN: Yeah, sure. If you’ll give me the
main proposition, which is critical normative morality
gives a really clear guidance, then you ought just think
what critical morality says, assume that’s the
law, done deal. In these other areas
where I’m saying, look, it’s contested it’s
unclear, go look it up, and you’re saying where? Where the hell to I find it? As I said it’s city statutes. I don’t know where
to find those. And I’ve got a decent education. Then maybe for
those lesser things, maybe you give them one warning
and then come down on it is the right answer. But that sort of assumes
that things like that are of lesser moral importance. And so we can
afford to say, well, this first it’s
forgiven, but just go tell all your friends
not to do that. AUDIENCE: Two questions just
about your power-conferring categories. Because, as you said
[INAUDIBLE] And it just made me wonder whether
prescriptively you have a situation where
it’s actually prudent. Some things are obviously power
conferring and some things aren’t. [INAUDIBLE] And then,
normatively [INAUDIBLE] feedback loop. You’re making
assumptions about what is power conferring [INAUDIBLE]
obviously power conferring. Or is that very question could
itself be part of the normative framework since that is not. I have to ask this sort of
meta-question about when I have to actually
decide something is power conferring such
that I know [INAUDIBLE] legal authority. ROBERT GOODIN: Not sure
I got the very last bit. Occupying property,
you might not think you’re exercising
legal powers. Claiming property,
or claiming the right to exclusive
enjoyment of property, when you’re headed for the
courtroom you think a-ha! Surely, at that point. Or when you call the cop to
get this guy surely you think. You may not phrase
it this way, but you must know you’re
trying to exercise legal powers at that point? Don’t you? AUDIENCE: Right. So that’s sort of
my point, though. When you’re drafting a contract,
of course, your right of labor. You then have to go to
court litigate the contract. You’ll know that you needed to
without just calling the cops or calling the court. But at the time
you’re drafting a will or writing a contract you
may not be thinking that way. You write almost anything
could lead to a situation or lead you in that direction. But there’s some earlier
stage where the laws kind of implicitly there, but
citizens might not be thinking that
way at that point. ROBERT GOODIN: Don’t you think– here we’re in anthropology
and yours is as good as mine, but you know. I mean, don’t you think that
most little old ladies, however schooled in the law
or not they may be, would know the difference
between writing their daughter a
letter saying, I want you to have my
wedding ring and writing something to stand
up in court that will give her the wedding ring. Wouldn’t most people
think different? Wouldn’t they? AUDIENCE: I guess. To me, it’s empirical
[INAUDIBLE] possible. AUDIENCE: I wonder
to what degree does, deriving epistemic access
from morality, [INAUDIBLE] truth or falsity about morality. And then, in the face
of moral skepticism, do you have to
got me dead to rights. There are truths and
morality, thank you very much. Skeptics are wrong. If skeptics were right
all you’d be left with is customary morality. But I guess you could then
tell any analogous argument about customary morality. AUDIENCE: No, I’m
with you on that. I’m not a skeptic. I didn’t know if
you wanted to answer that question [INAUDIBLE]. ROBERT GOODIN: No,
it’s a table thumper. CASS SUNSTEIN: We have
time for one more question. AUDIENCE: Talk about
the parallelism between law and morality. There are a couple of cases,
usually involving morals, and [INAUDIBLE] I’m just
curious what your reaction is. There’s the standard
good Samaritan case, and usual opinion says
there’s no [INAUDIBLE] heinous and immoral by
a judge who believes it’s both heinous and immoral. And the question
is whether or not we want to put that
rule over, given the fact that it
epistemically tracks a very strong moral situation. And the other situation
is that somebody does a good deed for you
without any benefit of commerce, so there’s no formal
obligation to pay. The question is, most
people say it’s immoral not to, particularly after
they promise to do so, but in both situations with or
without [INAUDIBLE] generally you don’t have to
pay to understand the fact that it’s immoral. Should we regard these
as regrettable outcomes to the legal system,
or do they involve some institutional
concerns [INAUDIBLE]? ROBERT GOODIN: I think
this is where I ended and I sort of said,
well you know there might be all sorts of reasons. This is the make it illegal
if, and only if, it’s immoral. I’ve given you arguments for
the only if but not for the if. And your counter-examples
are if counter-examples. You would need to press and
ask questions about, well why shouldn’t we make
it illegal as well? I think that that’s
covered in that caveat. AUDIENCE: Then how
do we attack it? ROBERT GOODIN: I assume that
the reason that good Samaritan laws– where there are
no good Samaritan laws where the judges
say well, that they’re are rotten blighters but
dammit it’s not illegal. They say it’s not
illegal because it would be an unbearable burden
for anybody psychologically, or maybe materially, to be
under obligation to help any old body that they come
across who was in a bad way. Especially if they’re
in circumstances where they’re likely to
come across a lot of people who are in a bad way. CASS SUNSTEIN: Both conventional
and critical morality dictate that we
thank Robert Goodin. [APPLAUSE]

3 thoughts on “Robert E. Goodin: “An Epistemic Case for Legal Moralism”

  • Mr. Tinker Post author

    I felt like he was reading his book to me…

  • John Bates Post author

    Wow. This extreme moralism has absolutely nothing to do with the teachings of Paul. The apostle clearly explains that the Law is the source of guilt, sin, and death. And Christ came to free us from the law. True morality cannot be imposed externally via carrot and stick reward or punishment. But maybe I shouldn't assume the speaker has any relationship with the New Testament, it appears he is arguing for infantile Mosaic legalism.

  • Ilya S. Post author

    I question whether we actually have a common shared morality for law to track. Redistributivism imposes a new morality over the old common sense individualism. Under the old model, one would be expected to know that theft is illegal in all circumstances, but a redistributivist morality may expect an affirmative legal exclusion of theft by necessity (e.g. stealing medicine to save a child).

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