essay on moral theory

Essay on Moral Philosophy

Students are often asked to write an essay on Moral Philosophy in their schools and colleges. And if you’re also looking for the same, we have created 100-word, 250-word, and 500-word essays on the topic.

Let’s take a look…

100 Words Essay on Moral Philosophy

What is moral philosophy.

Moral philosophy is thinking about what is right and wrong. It’s like a guide for making good choices. People who study this are called philosophers. They ask big questions about how we should live and treat others.

Important Ideas in Moral Philosophy

There are many ideas in moral philosophy. Some say we should act in ways that bring the most happiness. Others believe we should follow strict rules, like always telling the truth, no matter what.

Making Decisions

When we make decisions, moral philosophy can help us choose the best action. It’s not just about following rules, but thinking carefully about how our choices affect others.

Different Cultures, Different Morals

What’s right in one culture might be wrong in another. Moral philosophy helps us understand these differences. It teaches us to be open-minded and respectful to everyone’s views.

Why It Matters

Moral philosophy matters because it shapes our world. It influences laws, schools, and how we get along with each other. It helps us build a world where everyone can live well and happily.

250 Words Essay on Moral Philosophy

Moral philosophy is about thinking hard on what is right and what is wrong. It is like a big map that guides people on how to be good and how to choose the right path in life. This subject asks questions like “What should I do?” and “How should I live?” to help everyone understand how to act well.

Right and Wrong

One big part of moral philosophy is figuring out what is right and what is wrong. It is not always easy, because different people and cultures might have their own ideas. For example, sharing might be seen as good, while stealing is seen as bad. Moral philosophers try to find rules that can apply to everyone, no matter where they are from.

Good Habits

Moral philosophy also talks about virtues, which are good habits. Being honest, brave, and kind are all examples of virtues. These are like muscles – the more you use them, the stronger they get. By practicing good habits, people can become better at being good.

Choices Matter

Every day, people make choices. Some are small, like what to eat for breakfast, and some are big, like helping a friend in trouble. Moral philosophy teaches that every choice can matter and that thinking about the reasons behind our choices is important.

Why Study Moral Philosophy?

Studying moral philosophy is important because it helps people understand how to make the world a better place. It teaches that what we do affects others and that being good is not just about following rules, but about caring for each other. By learning moral philosophy, students can grow up to make wise, kind choices in life.

500 Words Essay on Moral Philosophy

Moral philosophy is a part of philosophy that asks big questions about what is right and wrong. It is like a guide that helps people decide how to act in a good way. Think of it as a map for behavior, showing us which paths are good to take and which ones we should avoid.

Good vs. Bad

One of the main things moral philosophy looks at is the difference between good and bad actions. For example, sharing your toys with a friend is seen as a good thing because it makes both of you happy. On the other hand, taking something that doesn’t belong to you is considered bad because it can hurt others. Moral philosophy tries to explain why some things are good and others are bad.

Rules and Choices

Moral philosophy also talks about rules that many people agree on, like telling the truth and being fair. These rules can help us make choices that are good for everyone. But sometimes, it’s hard to know what the best choice is. That’s when we have to think carefully and use what we know about right and wrong to decide.

Different Views

People from different places or with different beliefs might have their own ideas about what is right and wrong. This is because what we think is good or bad can be shaped by our families, our friends, and the society we live in. Moral philosophy helps us understand these different views and why people might not always agree.

You might wonder why we need to study moral philosophy. It’s important because it helps us live together peacefully. When we understand what is right and wrong, we can make better choices that help us get along with others. It also makes us think about how our actions affect other people and the world around us.

Thinking for Ourselves

Even though moral philosophy can give us some answers, it also encourages us to think for ourselves. We can learn from others, but in the end, we have to decide what we believe is right. This means asking questions, listening to our hearts, and sometimes even standing up for what we think is good, even if it’s not easy.

Moral philosophy is like a compass that helps us navigate through life’s choices. It’s not just about following rules; it’s about understanding why those rules are there and thinking about how our actions affect others. By learning about moral philosophy, we can grow into thoughtful and caring people who make the world a better place, one good choice at a time.

That’s it! I hope the essay helped you.

If you’re looking for more, here are essays on other interesting topics:

Essay on Moral Development
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Explaining Value: and Other Essays in Moral Philosophy

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Considers the following questions: What accounts for the existence of basic moral disagreements? Why do most people think it is worse to injure someone than to fail to save them from injury? Where does the right of self‐defence come from? Why do many people think it is morally permissible to treat animals in ways we would not treat people? Why are some people moral relativists and others not? What is it to value something and what is it to value something intrinsically? How are a person's values (noun) related to what the person values (verb)? How much of morality can or should be explained in terms of human flourishing or the possession of virtuous character traits? For that matter, are there character traits of the sort we normally suppose there are? How do people come to be moral? Is morality something one learns or does it arise in everyone naturally without instruction?

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Essays on the History of Moral Philosophy

J.B. Schneewind, Essays on the History of Moral Philosophy , Oxford UP, 2010, 447pp., $35.00 (pbk), ISBN 9780199576678.

Reviewed by T.H. Irwin, University of Oxford

Readers of Jerome Schneewind's major works on the history of moral philosophy will be pleased to see this selection from his essays. While some of them are well known, others will be unfamiliar to many readers. The essays are ordered in sections that correspond approximately to different phases of Schneewind's work. The four main sections are 'Victorian Matters' (Part II), 'On the Historiography of Moral Philosophy' (Part III), 'Seventeenth- and Eighteenth-Century Moral Philosophy' (Part IV), and 'On Kant' (Part V).

Part II includes an illuminating essay ('Moral problems and moral philosophy in the Victorian period') that represents Schneewind's interest in literature and its philosophical aspects. It is a useful supplement to his early work Backgrounds of English Victorian Literature (1970).

Readers will also benefit from the full list of Schneewind's publications, which shows how much has been omitted from this volume. Some of the omitted items have been largely absorbed in The Invention of Autonomy , but many of them deserve attention in their own right. I especially missed the important essays on Pufendorf.

It would be difficult for a review to summarize these elegant and instructive essays. And it would be difficult to pick out some essays for discussion, since most of them, including the most important, raise questions that are examined at greater length in Schneewind's two long books. But a reader of these essays may be encouraged to reflect on some themes that recur in many of the essays and on the approach and assumptions that guide the author's approach to the history of ethics.

* * * * * * * * * *

In his preface Schneewind mentions his extended reflexion on, and confrontation with, the work of Alasdair MacIntyre. One of his earlier publications is a favourable review of MacIntyre's Short History of Ethics , and some of the points that he selects for praise and for criticism in MacIntyre point to some of the characteristics of Schneewind's work. On the one hand, he praises MacIntyre's exposition of different philosophers in relation to their social and historical circumstances; this method of exposition has been a hallmark of Schneewind's work as well. On the other hand, he criticizes MacIntyre for excessive attention to Greek ethics, and, in keeping with this criticism, his own work has always displayed markedly limited sympathy for the Greek moralists. On these points Schneewind's attitude remains stable in his later work. The Augustinian and Thomist developments in MacIntyre's later work correspond to nothing in Schneewind's later development.

But if Schneewind's outlook is stable on these points, it also seems to have developed in other ways. He certainly places Sidgwick in his historical context, and specifically in the philosophical and theological controversies of Victorian England. But the historical conclusions are not used to cast any doubt on the timeless philosophical significance of Sidgwick's utilitarianism. On the contrary, Schneewind expounds Sidgwick sympathetically, and defends him against some of his early critics. We get the impression that Sidgwick is worth reading partly because he offers a detailed statement and defence of a version of utilitarianism that a moral philosopher ought to take seriously. Nor does Schneewind express any doubts about Sidgwick's firmly objectivist views in meta-ethics.

Similarly, Schneewind does not dissent from Sidgwick's views on the history of ethics. Sidgwick holds a timeless view in so far as he takes the views of past moralists to be open to evaluation as attempts to grasp truths about ethics that are not relative to a particular society or historical situation. According to Sidgwick, we can trace in the history of ethics the main methods of ethics that he discusses in Methods , and reflexion on the views of past philosophers will reveal the inadequacy of the methods he rejects and the superiority of the method he accepts. This interpretation of the history of ethics underlies both Sidgwick's Methods and his Short History of Ethics .

One might, then, reasonably suppose that Schneewind's book on Sidgwick shares Sidgwick's approach to the history of ethics. Schneewind examines the controversies among Sidgwick's immediate predecessors, whom Sidgwick does not usually confront directly. He argues that Sidgwick's contribution to these controversies marks an advance on the work of Whewell and others. On this point Schneewind defends Sidgwick's view of his place in the history of ethics.

In some ways the outlook of The Invention of Autonomy is similar. Here Kant replaces Sidgwick as the central figure, and Kant's moral philosophy is the decisive advance in the history of ethics.

According to Barbeyrac, Grotius marked the age 'where in the science of morality was, if I may so say, raised again from the dead'. This is an exaggeration of Schneewind's view of Grotius, but it corresponds approximately to the narrative of Invention , with some important differences. In Schneewind's view, moral philosophy was alive, but imprisoned by the theologians, until Grotius released it ( Invention 82). Grotius was the starting-point for Pufendorf's reflexions on natural law, and Pufendorf 'raised questions that Kant eventually thought he had to answer' (175).

In this respect Kant completes the process initiated by Grotius. The Grotian version of natural-law theory is relevant to a situation in which we have to 'handle serious disagreements among equals' (200). An Aristotelian theory is irrelevant or unhelpful in this sort of situation because 'it must treat disagreement with the virtuous agent as showing a flaw of character', and because 'it encourages each … to impugn the character of the other rather than listen to the other's case' (200).

It is reasonable for Schneewind to make Kant the central figure of his history; for he believes that 'his [sc. Kant's] conception of morality as autonomy provides a better place to start working out a contemporary philosophical understanding of morality than anything we can get from other past philosophers' ( Invention xiv). Just as Sidgwick answers the questions raised by his 18th-and 19th-century predecessors, Kant answers the questions raised in the 17th and 18th centuries.

Apparently, then, Schneewind's treatments of Sidgwick and Kant express the same conviction about moral philosophy as a progressive discipline. His two long books seem to present two periods in the history of ethics as periods of philosophical progress. They might also appear to reflect some change of mind about what counts as genuine progress; for the judgment that I quoted about Kant suggests that Kant is superior to Sidgwick, and that some of Schneewind's earlier judgments on Sidgwick might need to be revised.

But at any rate this conception of the progressive character of moral philosophy is not alien to Sidgwick. We might, therefore, expect Schneewind's conception of the history of moral philosophy to reveal agreement with Sidgwick.

This, however, is not exactly what we find. The essays on historiography are intended to cast doubt on 'the supposition that there is enough significant continuity in the concerns of moral philosophers to warrant discussions of progress and regress in the discipline' (107). Supporters of this supposition are said to believe in a 'single aim' of moral philosophers throughout history. In opposition to the belief in a single aim Schneewind maintains that Aristotle, Sidgwick, the Stoics, Hobbes, Bentham, and Parfit have different aims (120-1). He argues that these different aims make it futile to treat the Socratic question 'How should one live?' as a sufficiently determinate statement of the single aim of moral philosophy (120).

Schneewind is right to say that the aims of moral philosophers have differed. But people who have different aims can also share a single aim. Different members of a football team may have different aims, if they play the game for different reasons, but they still play the same game, with its constitutive aims, and their playing can be evaluated without reference to their ulterior reasons for playing it.

But even if Schneewind were to concede this point, he would still not be satisfied, because he has a further objection to a single-aim outlook:

The historian will have a further problem with this outlook. It implies that since we and past moral philosophers share aims and goals, the best way to understand the work of our predecessors is to look at them in the light of our own view of the truth about morality … The historian will complain that insistence on describing the views of past thinkers in our own terminology forces us into anachronism. If we are interested in what our predecessors were doing and thinking, we must try to understand them in terms they themselves had available. (121-2)

Schneewind seems to argue, on behalf of the 'historian', that a single-aim outlook encourages truth-based evaluation of past philosophers (i.e., evaluation in the light of our views of the truth about morality), and that truth-based evaluation is necessarily anachronistic.

This complaint of the 'historian' is difficult to understand. Perhaps Schneewind wants to remind us that we should, among other things, try to understand our predecessors in their own terms. But that reminder does not conflict with understanding through truth-based evaluation. The attitude of the 'historian' conflicts with truth-based evaluation only if it claims that the only legitimate way to understand our predecessors is to use their own terms.

Such a claim, however, is implausible. If Nepalese climbers in 1500 climbed to the top of Mount Everest, they reached the summit of the highest mountain in the world. This is a true statement of their achievement whether or not they knew or believed that this was the highest mountain in the world. We might judge them remarkably skilful climbers; the truth of this judgment would not depend on whether they thought of themselves as climbers. Similarly, it is difficult to see why we cannot legitimately attribute an achievement to past philosophers who did not consciously aim at achieving that result.

Schneewind explains his objections to anachronism by remarking truly that we cannot suppose Hume intended to anticipate Bentham, or that he intended to formulate a rule-utilitarian theory of justice. It does not follow, however, that he did not achieve these results.

Schneewind has a further defence of the 'historian'. Though he concedes that we may legitimately describe Hume with reference to his achievements, he observes that such a description is not history:

We may have good reasons for thinking of his theory in terms like these, but we are not, in so doing, giving an historical account of it. Worse, we may be overlooking its historical distinctiveness by forcing it into our own molds. (122)

This seems a rather arbitrarily narrow use of 'historical'. If we say that the attitude of Britain and the USA to the Peace of Versailles aided the rise of the Nazi Party in Germany, we are not saying that anyone in Britain and the USA intended to aid the rise of the Nazi Party; but what we say may still be true or worth discussing, and we would not be surprised to see such a statement in a history of the 1920s.

It is difficult, therefore, to see why historians of philosophy should impose on themselves a restriction that other historians do not accept. If they did accept it, their histories would be less interesting. If Schneewind simply intends to stipulate a sense for 'historical' here, without reference to the practice of historians, his point is more trivial than he seems to intend.

The warning in the second sentence of the quotation is reasonable. We may miss something about Hume if we do not think about his intentions. But it seems excessive to abstain from asking a reasonable question about achievements simply because questions about intentions are also reasonable.

Perhaps Schneewind does not mean to reject truth-based evaluation of achievements, but only means to supplement it with inquiries into intentions. But this moderate interpretation of his claims seems to leave out something that he wants to say. For he seems to doubt the legitimacy of truth-based evaluation, not just the preoccupation with it to the exclusion of other reasonable questions.

His attitude is explicable if he believes that the necessary conditions for reasonable truth-based evaluation do not obtain -- if, in other words, he believes either that there are no moral truths or that we have no cognitive access to them. Does he hold this nihilist or sceptical view?

Perhaps Schneewind's views on this question have developed. The early paper reprinted here ('Moral knowledge and moral principles') shows no trace of nihilism. Nor does he question Sidgwick's objectivism. But his later sympathetic treatment of Kant expounds Kant from a nihilist point of view. If Kant did not discover that rational agents are free, a Kantian about morality should not hold it to be true that we are autonomous. Autonomy was invented, not discovered, because the conception of rational agents as autonomous does not correspond to any fact about them.

If the Kantian conception is not true, why does it provide the best place to start working out a contemporary philosophical understanding of morality? The answer depends on the function and use of moral theories.

We will look at the enterprise of rationally examining norms and virtues as one of the tools that various societies have used to cope with different problems they faced in shaping or preserving or extending a common understanding of the terms on which their members could live with one another. (126)

The use of this particular tool expresses the hope that 'we can reformulate the problems in more manageable ways' (126; cf. 294).

This managerial and instrumental approach gives us no reason to be interested in the truth of moral doctrines and theories, unless we believe that their truth is likely to affect their managerial function. If moral fictions are at least as useful as moral truths in 'coping' and 'managing', we can ignore questions of truth. We will simply prefer Kant to other moralists because we find that his views about moral knowledge fit the anti-elitist outlook that we prefer.

If we look back at Schneewind's objections to a single-aim conception of the history of ethics, we may ask how his managerial outlook escapes these objections. He rejects truth-based evaluation of philosophers' achievements on the ground that it goes beyond the reconstruction of philosophers' intentions, and therefore does not give a 'historical account'. But his preference for the reconstruction of their intentions relies on his managerial approach; if we look at their intentions, we can see what 'problems' they and their contemporaries were 'managing' or 'coping with', and how successfully they were doing it.

This is puzzling, for two reasons: (1) Schneewind seems to agree after all that evaluation of philosophers' achievements, and not simply the reconstruction of their intentions, is a legitimate task for a historian. He objects to truth-based evaluations, but not to evaluations of degrees of managerial success; (2) he believes that the managerial approach to moral philosophy justifies attention to the aims and intentions of past philosophers. But it seems to give only a partial justification. Even if we are not Marxists, we might suppose that some philosophers' aims and intentions give a very imperfect idea of the problems they were trying (not necessarily consciously trying) to solve. If our study of the history of ethics were guided by a managerial approach, it would not easily justify Schneewind's preferred method.

Would a history of ethics that consistently reflected the managerial approach be better than the sort of history that Schneewind has offered us? I doubt it. Schneewind does not explicate the relevant notions of 'coping' and 'managing', and one may doubt whether they could be explicated enough to do useful theoretical work.

Should we, for instance, regard the French Revolution as a case of 'coping' and 'managing' (perhaps by managing to get the king out of the way), or as a sign of 'failure to cope'? Our answer might determine whether the outlook of the Enlightenment helped or hindered in the 'management' of problems faced by the Ancien Régime.

These sorts of questions have arisen about efforts to offer a functionalist and relativist account of morality. The difficulty of answering such questions has cast reasonable doubt on these efforts. Until we answer the questions, we cannot say whether morality or moral philosophy is plausibly regarded as a 'tool' for 'coping' or 'managing'.

I rather doubt whether an affirmative and non-trivial answer could be made convincing. One might present Hobbes's outlook as a tool for coping and managing England in the 1640s and 1650s. But many of his contemporaries disagreed with this view; since they took Hobbesian views to be contrary to the preservation of social life. Similarly, someone might regard Price's rationalist conception of rights as a tool for coping with the tensions in late 18 th -century Britain, but Burke has plenty to say on the other side. Who is right in these disputes? Both Hobbes and Price may hold views that tend to manage some things and undermine others, and it may be difficult to say whether the overall effect of their views is to manage or to undermine.

But even if one could answer these questions, I doubt whether the answers should matter to historians of ethics. I doubt whether success or failure as a managerial tool tells us anything about the character of moral philosophy, or about what makes one theory better than another. The actual managerial or undermining effect of a moral doctrine depends on, inter alia, who believes it, how far they act on it, what the other historical circumstances are, and so on. There is no reason why some historians should not ask these questions. When I say that they do not matter to historians of ethics, I mean that we can ask some important questions about Hobbes or Price that do not depend on who else believed them, or on how far their views were put into practice, or who opposed them. Questions about managerial effects are questions in intellectual and social history that Schneewind does not ask. He has no reason to ask them. If he had asked them, he would have written much longer books, but he might have not given any better answers to the questions he has actually asked.

These reflexions may raise a question about Schneewind's contention that we cannot write a history of moral philosophy 'without having some philosophical idea of the aims of the discipline' (122). A historian's conception of the discipline will no doubt influence the selection and presentation of questions and answers. But it is not so clear to me that an idea of the aims of the discipline is so important, or that it will necessarily determine one's approach to the history of the discipline. If Schneewind had consistently selected and organized his historical inquiries so as to fit a managerial conception of morality or moral philosophy, the unsatisfactory aspects of that conception would have become clear.

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Essays in moral philosophy

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Moral Obligation: The Main Theories Essay

Introduction.

Moral responsibility is a state of deserving praise, punishment, blame or reward for an omission or act according to an individual’s moral obligation. According to morality, helping others is prosocial behaviour, one of the central pillars of morality. Generally, people view helping others as a moral right and responsibility. However, such responsibilities also have limits. Deciding what can be morally obligatory is one of the essential concerns in ethics. As such, we have the moral right to decline or accept what we can do with our time and money regarding helping others.

As virtue ethics dictates, we have the moral right to act right and become complete persons; I agree with this. Our best moral action would be assisting others and becoming virtuous. It is hard to teach people how to become virtuous. Conversely, it would be impossible for one to ignore an injured person for humanity’s sake. Advocating for moral advancement means that you understand the reasons behind your moral deeds. We assist others by bettering ourselves, bringing the truth to the notion that humans have a moral obligation to assist a person. On the contrary, moral obligation is imperious. Philanthropy improves the world since it is a good thing, though not a requirement. One’s task should be doing the right thing and improving oneself but others first. Regardless, I support that acting morally is essential for a perfect world as moral obligation is subservient rather than imperative.

Reasons for and Against a Moral Duty

People are humans.

First, people deserve to be helped when the capability is available. In modern society, philosophy stresses how much people need to be supported. Cooperation is another necessary element that is very pronounced. People with a goal of optimization need to help others for a logical course of action. A better world is only liveable, wonderful, and better when we can help each other. For instance, we can only do unto others what we expect to be done to us. For example, if a hungry man deserves food, helping them eat will be appropriate rather than making them feel unwanted in the community. This person might help in another way besides time and money.

On the contrary, humanism, hedonism, and hatred are vital for a healthy human consciousness. At times, one can decline being put in bed since they do not want to, while others can feel the urge to kill. At times, you can break people’s hearts, while other times, your heart will be broken; while creating and denying needs, there is no way around it, and no one is obligated towards it. No one owes the world, children, men or women, anything. According to Hobbes, we all deserve to be helped, liked, and given back to society, even if selfless acts are selfish (Kraynak, 2019). However, there should not be an obligation written anyway that demand that.

Consequentialism

Secondly, consequentialism stipulates that we have a moral duty to do as much good for others as we can with our time and money. According to the theory, morality depends on producing the appropriate kinds of overall consequences (Card & Smith, 2020). Widespread consequences are anything that action brings about, inclusive of itself. We need to reduce overall suffering by helping others reduce their suffering in the universe. The theory also mentions that we must provide the best and most helpful to a more significant number of individuals to minimize suffering. For instance, $30 to an affluent individual is less valuable than $30 to an impoverished person. If a wealthy individual contributes that amount, it helps reduce suffering than when they could not (Card & Smith, 2020). On the contrary, nobody is morally obligated to reduce suffering to the world since the moral obligation is not an existing rule. A feeling of guilt pushes one to donate or give to charity.

Virtue Ethics

Thirdly, virtue ethics instigate our moral duty to give our time and money to others. In moral philosophy, virtue ethics is a broad term of theories that show one is doing a duty or acts to bring about good consequences (Proctor, 2019). Virtue theorists can offer advice such as acting virtuous as a certain person would act in a similar situation. Virtue theories take inspiration from Aristotle, who mentioned that someone with ideal character traits could be declared virtuous. Such traits are driven by internal natural tendencies that are nurtured. They become stable once established. For instance, one can be kind through innumerable situations in their lifetime due to character but not wanting to maximize utility or gain favours. Moreover, they could be doing their duty. According to virtue ethics, humans become complete when they act righteously but seem vacuous (Proctor, 2019).

As such, the best moral action we can take for ourselves is to help others by becoming virtuous. On the contrary, we are all selfish, according to Rawls (Said & Nurhayati, 2021). Things we do are for personal benefit. By acting according to virtue ethics, we do not attain more virtuous components but obtain something. Moreover, things we do are for personal fulfillment. Thus, doing something for yourself is not virtuous.

Finally, empathy is an ultimate virtue that stipulates we have the moral obligation to help others with our time and money. We can understand other people by acting through empathy (Behler & Berry, 2022). Empathy is the ability to understand and share feelings with another person. Emotion researchers describe this feeling as coupled with imagining what other people might be thinking or feeling. Empathizing with others’ needs helps us understand their pain, making us obligated to help them. For instance, one can empathize with others by smiling and talking about a troubling issue to remember an individual’s name. Moreover, giving people full attention during meetings and being curious about their interests and life, offering constructive feedback are ways one can help with their time.

On the contrary, the argument about empathy distinguishes between understanding and obligation. If a person understands another’s pain, it creates a moral obligation (Behler & Berry, 2022). Thus, it is not necessary for they have to be helped but understood. Others can develop a compelling meaning or understanding but are not morally obligated to it. This logic is flawed since it leaves an individual to understand and assist what they are acting upon to fix what they understand about the other individual’s problems. Thus, the overall objective would not be accomplished by placing the power to define relevant terms for every person. This becomes counterproductive since it would cause more harm than good. One can never truly understand whether or not the need is appropriate or if any assistance would be meaningful. As such, having a moral obligation to assist becomes useless.

We have a moral duty to do as much good for others as possible and have the right to do what we have with our money and time. Virtue ethics, consequentialism, and empathy are some theories that support moral obligation. In addition, humans deserve to be helped when in need if the capability is available. In my opinion, we should choose to be morally obligated and help people with our time and money to reduce the amount of suffering across the globe.

Behler, A. M. C., & Berry, D. R. (2022). Closing the empathy gap: A narrative review of the measurement and reduction of parochial empathy . Social and Personality Psychology Compass , e12701. Web.

Card, D., & Smith, N. A. (2020). On consequentialism and fairness . Frontiers in Artificial Intelligence , 3 , 34. Web.

Kraynak, R. (2019). History and modernity in the thought of Thomas Hobbes. In History and Modernity in the Thought of Thomas Hobbes . Cornell University Press. Web.

Proctor, C. (2019). Virtue ethics in psychotherapy: A systematic review of the literature. International Journal of Existential Positive Psychology , 8 (1), 1-22.

Said, M. Y., & Nurhayati, Y. (2021). A review on Rawls theory of justice. International Journal of Law, Environment, and Natural Resources , 1 (1), 29-36. Web.

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Discussion: Ethics and Research
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Ethics: Informational and Psychological Security of the Individuals
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Bradley’s Moral Philosophy

[ Editor’s Note: The following entry replaces and includes material from the former entry titled Bradley’ Moral and Political Philosophy . ]

F.H. Bradley’s moral philosophy remains a source for debates among the historians of philosophy; its rich—and under-researched—material has much to offer not only to the history of philosophy but also to contemporary normative ethics and meta-ethics (especially moral psychology). Luckily, after a period of neglect, there is a revival of interest in Bradley’s ethics. New attempts are made to reconstruct and reinterpret his ideas, giving them a well-deserved place within the current debates.

As a moral philosopher, Bradley is mostly interested in the question about good personality. The problem of the right action does not have a central role in his works (even though it is possible to reconstruct a theory of moral action based on his writings). He asks What sort of person am I to become ? rather than What should I do ? The type of answer that Bradley gives to this question with his theory of self-realization indicates that he is developing a version of non-instrumental ethical idealism, according to which the goal of moral life is the realization of the moral ideal for its own sake. Ethical Studies is mainly concerned with coming to understand moral agency and personhood, and this, among other things, entails laying bare the structure of volitional choice.

The best source on Bradley’s ethics is Ethical Studies , the philosopher’s first major book. The book was first published in 1876, followed by a second edition with Bradley’s comments for revision in 1927. (All references in this article are to the 1962 paperback edition with R. Wollheim’s introduction). Here, he discusses a wide range of topics relevant to moral philosophy (including, the freedom of will, justification of morality, moral duties, obligation). But by far the major contribution of this book is in moral psychology with its discussion of moral selfhood (cf. Keene 1970), moral ideals, and moral motivation. The book is also valuable for its critical analysis of the key claims of consequentialism, hedonism, Kantianism, and Hegelianism. Many classic arguments against these theories originate from Ethical Studies .

Bradley’s minor works in psychology offer additional insights into his approach to ethics. As D. Crossley (1989b: 59) notes, these articles explore in detail concepts and ideas which are only briefly introduced in the book. Most interesting for ethicists is the reprint of Bradley’s articles titled Collected Essays (1935) and especially the articles: “On Pleasure, Pain, Desire, and Volition” (1888); “The Definition of Will (I–III)” (1902–04, relevant to the discussion of motivation, desire, conation, wish, needs, pleasure, and pain); “Some Remarks on Conation” (1901, desire and conation); “Can a Man Sin against Knowledge” (1884, the nature of moral judgment); “On the Treatment of Sexual Detail in Literature” (desire); “On Mental Conflict and Imputation” (1902, desire and personal identity). The Collected Works of F.H. Bradley (1999) is a treasure trove of previously unpublished works by Bradley, including moral psychology and normative ethics: “Notes towards Ethical Studies [c. 1874–1875]” (Vol. I); “On Morality [1877 or 1878]” (Vol. I); “MS BK Z: Chiefly on Psychological Topics [c. 1893–1902]” (Vol. II); “MS BK W: The Final Commonplace Book [1915–1924]” (Vol. III). Another source is “XXV. Goodness” of “Appearance and Reality” and it is of primary interest to those who study the evolution of Bradley’s views as well as the way the ethics of later Bradley fits in the context of his metaphysics.

1. Background and Influences

2. “my station and its duties”, 3. moral self as a precondition for moral responsibility, 4. moral relevance of desires, 5. integrity, 6. moral ideal, 7. moral development, 8. the limits of morality, primary literature, secondary literature, bibliographical material, other internet resources, related entries.

The writings of the Oxford Idealists, F. H. Bradley and his teacher T. H. Green, reflect the influence of Kant and Hegel on English moral philosophy in the latter part of the nineteenth century. To the extent that either draws on other sources it is to Aristotle that they turn rather than to British moral philosophers such as Butler, Hume or Reid. Despite the undeniable influence of Aristotle on Bradley’s thought in general, the extent to which Aristotle’s ethics has influenced Bradley’s moral philosophy is open for debate. For example, virtue never became for him a central topic. We won’t find in his Ethical Studies an account of virtue or a theory explaining which specific character traits count as virtue. Aristotle’s influence is apparent, however, from the fact that Bradley, alongside Green (1883), offers a type of perfectionist account of morality that is articulated in terms of the concept of self-realization (Stern 2017; Hurka 1993; Crossley 1977). One evidence of that is Bradley’s claim that all moral duties are self-regarding duties; another is his tendency to connect moral progress with the realization of the truth of human nature. Given this, Bradley’s approach falls under the category of what T. Hurka (1993), calls perfectionism in the narrow sense which sees perfection as excellence defined by human nature.

Bradley’s philosophy is commonly categorized as idealism. However, even though it is often clear what this term refers to in metaphysics (most often, either to an ontological claim that reality is mind-dependent or an epistemological claim that our knowledge of the world is determined by the structure of the mind itself), it is less clear what the term idealism refers to in ethics. If idealism is used in the sense of the idealist ethics (Mander 2016, 2013)—as a means to describe a set of views commonly shared by philosophers who consider themselves metaphysical idealists—then, despite the fact that Bradley certainly is a metaphysical idealist (it is less certain, however, which of the two above-mentioned metaphysical claims he accepts), to say that he develops an idealist ethics raises more questions than answers, since his moral views diverge greatly from those of other metaphysical idealists.

Metaphysical idealists are preoccupied with the nature of ideas, i.e., cognitive constructs that are either the representations of the world or the internal structures of the mind itself that precede and precondition any experience and knowledge of the world. Bradley’s idealism, on the other hand, is focused on a different concept altogether: ideals , i.e., normative concepts that express standards of perfection. Given the central role of ideals in Bradley’s ethics, it makes sense to tag his moral theory as ethical idealism . Long after Bradley, one version of ethical idealism was developed by N. Rescher (1987) who proposed a kind of instrumental ethical idealism . Its central thesis is that ideals, despite being unrealistic and unachievable, have the instrumental value of motivating agents to strive for higher, more ambitious goals and achieve more than they otherwise would. In contrast to Rescher, for Bradley, the moral ideal is the goal in itself. Hence, we can tag his version of ethical idealism as non-instrumental ethical idealism .

Much of Bradley’s attention in Ethical Studies was taken up with critical analyses of utilitarianism—the dominant ethical theory of the day—and the hedonism to which it was wedded, whether that view advanced the primacy of pleasure either in the form of a psychological account of motivation or as the felt state that right actions aim at maximizing. Indeed, Bradley not only had to dispense with the claims of the older utilitarians, such as Bentham and Mill (cf., e.g., Crossley 2000; MacNiven 1984), but also had to face the new defense of utilitarianism advanced by Henry Sidgwick, who published his The Methods of Ethics (1874) virtually simultaneously with Bradley’s Ethical Studies (1876). For a greater part of the twentieth century Bradley’s critical attacks on hedonism and utilitarianism were considered to be the main subject of his book. Despite the central role of Bradley’s arguments in the debate against utilitarianism and hedonism, over-emphasizing their role in the structure of the book led many to overlook the main topic of Ethical Studies , i.e., moral self-realization and an entire set of relevant topics, such as the moral self and moral action (incl., moral responsibility and motivation).

In his opposition to utilitarianism, Bradley is often seen as a neo-Hegelian. Even though it is true to a certain extent that Bradley was inspired by Hegel, it is less obvious to what extent he had been influenced by Hegel’s ethics or his dialectic method. It is worth noting, however, that Bradley himself denied being a Hegelian or employing Hegelian methodology in any systematic way. The assumption that Bradley uses Hegelian dialectic as the main argumentative method in Ethical Studies most likely originates from R. Wollheim’s introduction to the second edition of the book and has persisted ever since. Wollheim himself does not prove his claim, and as a result it is difficult to know with certainty what he had in mind. The reason behind this interpretation of Bradley’s method is the desire to clear Bradley from the accusation of traditionalism and show that Ethical Studies must be read beyond Essay V “My Station and Its Duties”. The identification of Bradley’s ethics with the theory of my station and its duties became a commonplace after Sidgwick’s review (1876) and R. Ross’ edition of Ethical Studies , which omitted Essays I, VI, and VII (Bradley 1951). The good that Wollheim’s claim does is that it motivates the reader not to stop at Essay V, and to expect that there is more to Bradley’s ethics than the discussion of “my station and its duties”. The downside of Wollheim’s claim, however, is that it is too far-fetched and it blinds the reader to the main topics of Ethical Studies , its key message, and keeps her confused as to the relation of its various arguments as well as to the role of the final chapter, “Ideal Morality”. As a result, there is a risk for the reader to overemphasize the role of social morality (cf., e.g., Keene 2009) in Bradley’s ethics and misattribute some of his central arguments.

Since Wollheim wrote his introduction to Ethical Studies , scholars such as Candlish (1978) and Nicholson (1990) argued extensively against a popular (but poorly substantiated) view (e.g., Krook 1959, Stebbing 1948, Santayana 1933, Sabine 1915, Rashdall 1907) that Bradley’s moral philosophy is reducible to a theory of “my station and its duties”. As a result, the reductionist view is no longer accepted, and Bradley is no longer associated with conservativism and communitarianism. However, the perception of Bradley’s ethics is not fully free from the Hegelian spell, and there is still a lot of confusion concerning Bradley’s view on the moral significance of compliance with social demands, justified by custom and tradition—when this is understood as an element of “my station and its duties” theory. This confusion is deeply rooted in the way the structure of Ethical Studies is interpreted, what role Essay VI “The Ideal Morality” is given in the overall flow of the book’s argument and how it is positioned relative to Essay V “My Station and its Duties”.

Until recently, the predominant view among historians of philosophy was that

[t]he concept of “My Station and its Duties” is the core of Bradley’s moral theory. The last two essays … are devoted to further elaboration of this notion…. (Warnock 1960: 12)

This results in something that can be referred to an “add-on” view, according to which the “my station and its duties” theory, after acknowledgment of its limitations, is mostly accepted by Bradley with some corrections or additions that are described in Essay VI (cf., e.g., Wollheim 1969: 246–47; Candlish 1978: 163–4; Nicholson 1990: 33–5; Mander 2011: 190–1). As a result, the concepts of the ideal morality and the moral ideal are given lesser role in the overall structure of the book, seen as a supplement to social requirements or as something to fall back onto, if the social norms turn out to be corrupt. This interpretation of Bradley is being challenged. For example, Babushkina (2019) argues that this “add-on” view of Bradley’s theory of Ideal Morality, is problematic, as it largely underplays the seriousness of the objections that Bradley puts forth against the Hegelian “theory of my station and its duties” in Essays V and VI. But even putting this aside, were we to accept the “add-on” interpretation, it is still unclear how a supplementation of this sort can make the theory of “my station and its duties” plausible as a moral theory . It is not surprising then, that when accepting such reading of Ethical Studies , some scholars discard Bradley’s moral theory altogether (Brink 2003; Banchetti 1992; Bell 1984; Norman 1983; Daly 1963).

One reason for the confusion around the concept of “my station and its duties” is the multiplicity of the meanings attached to this expression in Ethical Studies and the obscurity of Bradley’s style of writing. As Babushkina (2019) point out, the popular “add-on” interpretation fails to take into account the distinction between “my station and its duties” as

a Hegel’s normative thesis (connected to the concept of Sittlichkeit) described and criticized in Essay V;
a related concept of positional duties or social commands (cf. Stern 2013), i.e., tasks that we have due to occupying a certain position/role;
the revised “my station and its duties” thesis that Bradley accepts, according to which our moral obligations may coincide with (but are not reducible to) our positional duties, where the obligation is constituted by what others have a reason to expect from us from an ideal point of view (Essay VI).

Bradley does not explicitly define these three meanings of “my station and its duties”, but the difference is clear from the context and flow of the argument throughout Ethical Studies . Acknowledging the difference between the concept of “my station and its duties” in Essay V and VI reveals that far from accepting (with some corrections and supplements) the Hegelian theory of Sittlichkeit, Bradley rejects the reduction of moral properties to social, leading to the conclusion that what is socially required from us constitutes our moral obligation only when this social requirement is justified from the ideal point of view (given, of course, Bradley’s understanding of the nature the ideal).

An alternative to the popular “add-on” view, shifts the interpretative focus from Essay V and the theory of “my station and its duties” with its reductionist view of morality towards Essay VI and the identification of the moral with the ideal (James Bradley 1996; MacNiven 1996). For example, D. Ilodigwe writes that Bradley introduces the moral ideal as a concept

in terms of which the legitimate demands of these varied regions of the self [empirical, transcendental, and social] are realised

and denies that

the realisation of the social self necessarily [is] the realisation of the ideal self, except the social self is in conformity with its ideal self. (2004: 68)

From this standpoint, the Ideal Morality chapter is the central part of the argument of the book, which culminates debate about the nature of the moral self.

The central role of the concept self-hood for Ethical Studies becomes apparent already in the first essay of the book, where the solution to the deadlock in the debate about the nature of moral responsibility is suggested by Bradley through a revision of the standard philosophical views on the moral self. This fact has been frequently overlooked in the secondary literature that tends to focus on social and political implications of Bradley’s Ethical Studies (cf., Brink 2003; MacIntyre 1966 [1998]; Bell 1984; Wright 1984; Hudson 1980; Copleston 1966; Milne 1962; Sidgwick 1954; Muirhead 1932). However, in the recent years, the centrality of this concept for moral theory has been more and more acknowledged by Bradley scholars (notably, Mander 2016; Irwin 2009; Wilson 1999; Sprigge 1993; MacNiven 1987; Keene 1970), even though it is still frequent that commentators (cf. Wilson 1999; Stanley 1996; Nicholson 1990; Sprigge 1984; Vander Veer 1970; Keene 1970; Wollheim 1969; Lewis 1969) tend to not draw sufficient distinction between the moral and metaphysical accounts of the self. The lack of conceptual clarity in this respect may cause problems for the interpretation of Ethical Studies . According to Bradley’s metaphysics—developed much later than Ethical Studies —the self is an appearance (which does not imply that it does not exist; for more on Bradley’s metaphysical account of the self see Pugmire 1996; De Witt 1984; Vander Veer 1970). Despite that, in Ethical Studies the self is treated as if it was real. The overall message of the book is that, even though the self is just a mental construct, without it, ethics and moral life are impossible. One should not merely superimpose the metaphysical views of later Bradley on his earlier moral philosophy; an elaborate analysis that would make justice to the original idea of Ethical Studies as well as to Bradley’s complex ontology and epistemology of Appearance and Reality is required. One of the first to draw attention to the apparent disagreement between Ethical Studies and Appearance and Reality on the topic of the self was Wollheim (1969), who noted that if there is any context in Bradley’s philosophy where we have to admit the existence of the self, it is his moral philosophy. Wollheim, however, explains the apparent inconsistency between earlier and later Bradley not with reference to the conceptual difference between the normative domain of ethics and descriptive domain of metaphysics, but to the inherent contradiction in the metaphysical account of the self, thus, in the end, denying the uniqueness of ethics as a philosophical field of inquiry. This is common also to those researchers who ague for a naturalistic account of the moral self in Ethical Studies , either tracing it to Hume and Hobbes (Basile 2003; Wilson 1999) or reducing it to a set of habits—both of which interpretations find their disproof in some place in Ethical Studies .

In Ethical Studies , Bradley begins his discussion of morality and the moral agent with an analysis of the ordinary person’s understanding of moral responsibility. The reason for this starting-point is revealed much later, when he argues that a moral agent begins with the development of self-consciousness. This, he says, makes possible “imputation and responsibility, and here begins the proper moral life of the self” ( Ethical Studies , Essay VII [1962: 299]). If an action has any moral significance whatsoever then the person responsible (in the causal sense) can be held accountable (responsible in the normative sense). One could feel accountable, and with this goes a sense of liability to censure or punishment. Being justifiably considered guilty and thereby deserving of censure or punishment requires the satisfaction of three conditions: (a) the person held accountable must be the same person as the one who did the act, (b) the act must have been that person’s, and (c) she must have had some understanding of the moral quality of the act. While not in a position to provide a philosophical opinion on questions concerning personal identity or what constitutes an action, the ordinary person nevertheless recognizes cases in which an accused person was “not himself” or “did not mean to do it” or acted under duress, and sees these as mitigating circumstances. In sum, the ordinary person’s view, as Bradley presents it, is Aristotelian: for the purposes of determining moral responsibility an act has to be the agent’s in that its origin ( arche ) lies with or in the agent in some sense—and the agent must not be acting under coercion or in a state of non-culpable ignorance. These last conditions reflect the common view that one cannot, in justice, hold someone accountable unless she had a measure of control over the situation and thereby could be viewed as acting on her own free will.

If we turn to philosophical theories, we find differing opinions about whether we enjoy this sort of freedom from external influences, and Bradley is interested in how—what he calls—the theories of Determinism and Indeterminism differ from the views of the ordinary people; not because he thinks the ordinary people will always be correct about such matters—indeed, they likely have not thought much about such things—but because examining what the ordinary people say about moral matters reveals the deep structures of a society’s moral thinking as that is embedded in its language and social institutions (or, in more modern terms, our moral intuitions).

Concerning the free will debate, our moral intuition is at odds with both theories. Contrary to determinism, our intuition tells us that we can and often do initiate actions—and on this point Bradley portrays the ordinary person as accepting the thesis now called “agent causality”. What is omitted by the determinists are explanations of behavior which appeal to the reasons of the agent, thereby ignoring Aristotle’s notion of final causality, or purposely reducing it to efficient causality. Thus, denying the ability of the agent to act upon reasons, the determinist is denying the autonomous nature of the moral self. The problem with indeterminism, on the other hand, is its claim that nothing at all determines our actions. This conflicts with our belief that it often is possible (and sometimes even morally required to be able) to predict what someone will do, because she has formed a certain moral character and can be counted on to act a certain way when faced with moral questions. In the end, Bradley shows that both theories cannot make sense of responsibility and moral life because—even though for different reasons—they fail to account for the concepts of the moral self. This sets up the stage for the rest of the book which will be occupied predominantly with the task of accounting for this concept. The most important ethical question, from this point of view, is about the kind of self that one should realize in her moral life; it is this question that allows Bradley to introduce his most crucial concept—that of moral life as self-realization , based on the idea of the moral self as a creative, goal-oriented self-assertive process.

Self-realization is a complex term which, in the boarder sense, can be seen as an attempt to translate the Kantian universalizability principle into the concrete reality of a person’s life. The universalizability principle says that if a moral obligation applies to me as a moral agent, then it applies to any other moral agent in the same manner, or as Bradley puts it:

That does not mean that everybody does or has to do what I do, but it means that, if they were I, they must do as I have to do, or else be immoral. ( Ethical Studies , Essay VI [1962: 230])

As a principle guiding actions, it presupposes the distinction between the moral self and my moral self: when the agent reflects upon her beliefs, desires, commitments, and actions from the moral point of view, she is reflecting upon her moral self. It is the object and subject of moral evaluation; the bearer of responsibility and object of blame and praise. My moral self is subject to change: with time, I may become a better or worse person than I am now. My moral self is not the same as your moral self, because the specific details of our lives and circumstances, in which we make decisions and act, are different. However, the reasons for which my moral self and your moral self can be both seen as moral selves are the same. The moral self is the other side of the universalizability principle—that “me” to which any moral obligation applies to, regardless of any specific circumstances of one’s life. In Bradley’s own words:

I call my act the realization of the universal will because another man in my case … must have acted as I did and would have been commanded to do so. (“Miscellaneous Notes [c. 1874–5]”, Bradley 1999: Vol. 1, p. 244)

And further:

The moral consciousness thus assumes its identity in all men. […] The superior will … commands individual acts which are ends without distinction of person if “person” means the private self. (“Miscellaneous Notes [c. 1874–5]”, Bradley 1999: Vol.1, p. 245).

As such, the moral self is void of content. It is an abstract principle. Bradley’s concept of self-realization is, in a sense, a response to the question of how this abstract principle gets specified and becomes a moral life of a concrete individual: how it is possible for anyone to actually have a moral (as opposed to empirical) self. The answer lies in the link between our actions and what we are: as moral agents we cannot separate ourselves from how we act. As MacNiven says: “in acting … we create ourselves” (MacNiven 1987: 50). Bradley pays a lot of attention to the psychological machinery of moral action (including desires, volition, conation, beliefs) with the goal of explaining this link, and thus explaining how we create ourselves as moral agents through actions. Sprigge interprets self-realization through another complex and controversial term of a concrete-universal:

In his Ethical Studies Bradley takes his departure from the presumed fact that every individual is struggling for some kind of self realization, and that this is the basic driving force of the attempt to live a morally good life. Such a life is not a means to self realization, but one main form of self-realization. By self realization Bradley seems to mean the giving some sort of overall coherent pattern or structure to your life in which you can find satisfaction, and such that all the details of your life are enjoyed as particular elements in that total pattern. One could perhaps say that it is life in the light of an accurate self image with which one can be satisfied. (Sprigge 1988: 117)

Representing moral self as a concrete-universal is conveying the idea of goal-orientedness and structuring of internal states throughout one’s life. This idea is encapsulated by the term personal projects , which seems to be better situated for the interpretation of Bradley’s idea of moral life as self-realization, also because it allows translating the idealist concept of a concrete-universal into the language of present day debates in moral philosophy. Projects are major pursuits that have key role in organizing and structuring an agent’s conduct over a long period of time: projects “give shape and content”, “guide our lives” (Betzler 2013), and essentially contribute to its meaningfulness. Careers, hobbies, personal relationships—all such endeavors that are devoted to a significant cause and require a body of actions to pursue it, are examples of personal projects. Bradley’s description of moral life is well-suited for such account of personal projects: my moral self is essentially a life-long endeavor that has two dimensions. The one is reflective and normative dimension, where the agent forms an idea of her ultimate moral end; the causes she is to realize and what is required to achieve them. This is a continuous process of reflection upon her beliefs, desires, and actions, as well as her social roles and connections to others—the process that never stops throughout one’s life. Though this process, the agent is constantly updating and concretizing the ideal view of herself, or—in Bradley’s terms—her ideal self. The other dimension is the practical one, i.e., the dimension of action. Identifying with her ideal self, the moral agent, is able to adjust her psychological states (beliefs and desires), as well as to align her commitments, decisions, and actions. When the agent acts in accordance with her view of what she ought to be, from the ideal point of view, she is realizing herself and becoming her true self.

For Bradley, what drives self-realization are our desires, and through them, our volition. The central role of desire and other emotive states for self-realization has been acknowledged by such Bradley scholars as MacNiven (1987), Crossley (1989b), and Mander (2016, 2011). MacNiven shows that Bradley conceptualizes desire as a separate state of mind, distinct from pain and pleasure. Crossley discusses desire mostly in the context of the concepts of feeling and immediacy; while Mander connects Bradley’s account to a more general idealist views on desire. Bradley’s concept of will is, however, less discussed in the secondary literature, but it is important to note that Bradley understands will not as a special faculty but as an idea that is being actualized. In Bradley’s own words, it is “the self-realization of an idea with which the self is identified” (1902b [CE II.476]) or, to put plainly, will is what you are ready to do. This account of will, places special importance on desire and emotive states through which ideas find their ways into an agent’s decisions and actions.

Well before E. Anscombe (1957), Bradley described the difference between desire and belief via the metaphor of the “direction of fit” (Mander 2016; Brink 2003). In theoretical pursuit, Bradley says, our goal is to understand the object; we want neither to remove nor alter the world of sensuous fact, but we want to get at the truth of it. The whole of science takes it for granted that the “not-ourself” is really intelligible; it stands and falls with this assumption. So long as our theory strikes on the mind as strange and alien, so long do we say we have not found truth; we feel the impulse to go beyond, we alter and alter our views, till we see them as a consistent whole. But when it comes to action, our aim is not, leaving the given as it is, to find the truth of it; but “in practice … we want to force the sensuous fact to correspond to the truth of ourselves” ( Ethical Studies , Essay II [1962: 73])

This presents two very different kinds of intentional mental states. In the case of empirical knowledge, we have a subject in the psychological state of believing that something is true of the world; her belief has a propositional object as its content as Bradley would call it. Since the goal is to correctly understand the world, the subject is committed to altering her belief set until it accurately represents the external physical world. By contrast, when I desire to become a better person I must first have represented the self or person I wish to be under some description. This sort of mental state also has a propositional object; e.g., in the statement, “I wish that I were a more patient person ” the italicized proposition following the “that” is the object of the mental state we call wishing. What we have here, in Bradley’s terminology is an ideal object which is the content of the wish. This is ideal because it is a mental representation of a state of affairs that does not exist at the point the wish is made.

An ideal object can represent a possible different state of the person contemplating it, which presupposes, in addition to the ability to represent possible future states, a degree of self-awareness. An example of this sort of self-consciousness is found in the addict who may be very aware of how his desires are ruining his life. Once this sort of self-reflective awareness is achieved it is then possible to think of changing things. In Bradley’s language this addict has pictured a better self that he might be, and if he comes to identify his satisfaction with realizing this better self there is a possibility of change. This situation sets up a conflict between the actual person the addict now is and the represented better person he wishes to be and this generates disharmony or what Bradley often calls a “felt contradiction”. The pain of this conflict moves the individual toward resolving it. It is important to note that the addict cannot move forward without having a determinate ideal object, a definite conception of the ideal self being represented. Without this, identifying his satisfaction with realizing that state would be impossible. Bradley writes:

The essence of desire for an object would thus be the feeling of our affirmation in the idea of something not ourself, felt against the feeling of ourself as, without the object, void and negated ; and it is the tension of this relation which produces motion. ( Ethical Studies , Essay II [1962: 68]; compare to Bradley 1888: 17–18)

The introduction of the psychological tension into the explanation of desire could give the impression that Bradley is subscribing to the dispositional account of desire (cf., e.g., MacNiven 1987), according to which desire is a disposition to action, i.e., “trying to get” something or a “movement towards a thing” (Anscombe 1957). What is more likely, however, is that the reference to the feeling of tension is a way to describe the emotive component in the motivation by ideas. This fits well Bradley seemingly paradoxical claim that “nothing is desired except that which is identified with ourselves, and we can aim at nothing, except so far as we aim at ourselves in it” ( Ethical Studies , Essay II [1962: 68]). This quote should not be understood as a trivial narcissism or an egoistic claim that I only desire the state of affair which is in my interests. Neither should this quote should be understood as a claim that the object of desire is always a belief. Bradley rejects such view because it can be applied to the mental states that are not, in fact, objects of desire—thus this view fails account for desires as distinct mental states: “All my ends are my thoughts, but all my thoughts are not my ends” ( Ethical Studies , Essay II [1962: 67]). As Bradley notes, the fact that I can see a locomotive starting to move off the station does not imply that I desire the train to move.

What seems to be a most likely explanation of what Bradley had in mind when claiming that self is the only object of desire is expressed by another idealist, J. H. Muirhead. He wrote that the propositional content of desire contains a predicate of the desired self:

[I]t is indifferent whether we say […] I desire that object, or I desire myself to be in possession of that object. (Muirhead 1892: 52)

In the same manner, Bradley aims to say that desire is always a desire for a certain (future) state of myself; more broadly, the agent’s desires represent her ideal of her self. The claim that the self is the only thing she is able to desire, suggests that all desires are somehow connected to her personal aspirations and commitments. It is worth noting that such interpretation does not exclude other-regarding desires, i.e., desires for the well-being of other people. Other-regarding desires can also be a part of personal commitments, as long as one can explicate a connection between the object of desire and the future state of the agent’s self. If Sally desires for her children’s well being, this may mean, for example, that she aspires to be a happy parent whose children are well off in life.

Another helpful concept is J. S. Mackenzie’s idea of desire as the expression of one’s “point of view”, representative of a person’s character (Mackenzie 1901). Mackenzie’s “point of view” resembles Bradley’s concept of the “whole of ends” ( Ethical Studies , Essay II [1962: 70]) which Mander (2016) interprets in terms of “ideal desire-sets”—the unity of life goals that personal projects provide. This implies a strong connection between the object of desire and the desirer’s life projects—or, as W. Mander puts it: when desiring an object

our very identity becomes bound up with it […] making its realization a realization of our own self. Our identity lies in the realization of our goals. (Mander 2011: 185)

To put it otherwise, desires are the driving force behind self-realization: the only thing we aim at in acting is to realize ourselves—or, better, the structure of practical reasoning and the facts of moral psychology make it impossible that we could aim at anything else. This means that our choices and actions constitute what we are, and they do so by revealing what we identify with. You cannot escape self-realization, but you can choose and control what person you will become as a result.

With this Bradley puts forward an interesting alternative to the dispositional account of desire, namely, a view that desire is the identification of the self with the object. One aspect of this identification can be explained with the help of a narrative view of desire, according to which desire is essentially a story that the agent tells herself about the attractive properties of the object and as such, it reveals what an agent considers to be valuable (Airaksinen 2012). Bradley calls the realized desire is an “utterance” of the self, or further says that the self feels “asserted” and “affirmed” in the object of desire ( Ethical Studies , Essays I & II [1962: 33, 35, 68]). In other words, desires that have led to actions reflect the agent’s value preferences and as such can be seen as narratives about the characteristics that the agents finds attractive. The psychological tension, which Bradley describes as a part of desire, is then the agent’s feeling of contradiction between her idea of her own future state, where she is has already become qualified in this attractive way, and the her idea that her current state is not thus qualified. In a sense, the object of desire stands for the idea of something that agents considers to be valuable, making the desire itself stand for acceptance of such value for the agent.

Volitional choice therefore has a built-in normative feature in the form of an idea of a better state or self. But self-realization means more than this for ethical theory, for it purportedly represents the over-arching, ultimate goal of moral action, which entails some idea of a perfect, ideal self that is being aimed at. But here is a problem: how can anyone ensure that one is true to one’s ideal?

Answering this is crucial for Bradley’s ethical theory not to fall victim to a criticism he made of Mill’s thesis about the qualities of pleasures ( Utilitarianism , Chapter 2). Bradley leveled a barrage of criticisms against any theory, utilitarian or otherwise, that imply that the moral moral self is the most satisfied self and that satisfaction is the sign of being true to the moral ideal. The central objection was that since pleasures are a “perishing series”, with each one passing away once it has been experienced, it is not possible to accumulate a sum of pleasures, and since there are always more pleasures available than anyone has experienced, Mill’s moral goal of maximizing pleasant states was meaningless. But introducing the idea of qualitatively different kinds of pleasures that can be ranked suggests that perhaps the hedonist can, after all, successfully articulate the self we should be aiming at. Perhaps the best self—the ideal moral self—is the one that pursues the highest type of pleasure.

In evaluating this Bradley stresses the relative, comparative nature of terms such as “higher” and “lower”. The opposite terms such as “superior” and “inferior” invite us to ask, “in respect of what is A higher than, or superior to, B ?” Bradley insists that if I say Sally is superior to Joan I must first be comparing them in terms of some characteristic they share—for example, both are beautiful—and, second, I am positioning them on a scale, which is conceived in terms of two determinate termini. We can perhaps see the point here by imagining what happens when, having said Sally is superior to Joan, we are next asked to rank Mary. If Mary is judged superior (in beauty) to both, then she is being placed between Sally and someone who is right at the top of the scale. Mill’s account of superior pleasures fails because he never explains what the scale is that is being used and so never explains what the “highest” kind of pleasure is. Whether this criticism survives scrutiny does not matter all that much as far as the fate of hedonism is concerned, for Bradley’s attack on qualitative hedonism is nothing short of thorough and he thinks there is no convincing case Mill can make in support of it. For example, Mill’s competent judges cannot say that this ranking just “feels” right, for that is to confess that the talk of ranking is meaningless since one could have just as well “ranked” them differently. And the ranking cannot be made in terms of Mary’s beauty, because that is the quality that makes Mary a candidate for placement on the scale in the first place; which leads Bradley to hold, as did most of Mill’s critics, that unless the whole business really is nonsense, there must some criterion other than pleasure being used and so Mill has given up hedonism. These, and some other arguments are independent of the issue about knowing the upper limit end of the scale of pleasures. That issue is important, however, because it marks a problem Bradley’s theory of self-realization should also have to face: namely, that talk of a “superior” or “better” or “more perfect” moral person would require an explication of the upper limit of the scale these evaluations are employing. This seems a reasonable demand, for even apart from the question of whether judging something to be better than something else entails knowing what is best, Bradley’s thesis is not just that we try to become better with each choice and action, but that we want to be the best possible, to be perfect moral agents.

Fortunately, Bradley has an answer. In Ethical Studies Bradley tells us that as moral agents we should avoid “the life of an oyster” and that we should look to produce a self that is a concrete-universal whole in which all is related so as to render it a system rather than a mere collection of random acts and characteristics. In other words, this means two things. First, self-realization is the matter of a meaningful life, that is directed to a cause/s. Second, such causes—which for simplicity’s sake can be understood as commitments—should, in the end, form a non-contradictory narrative about ourselves. Aligning our desires and actions with these commitments is a matter of integrity. A life of a morally good person is that a perfect unity of “homogeneity” and “specification” ( Ethical Studies , Essay II [1962: 74])—homogeneity in the sense of each desire should be directed to something in some way fulfills a commitment; specification in the sense of the commitment taking the shape of an action in the world.

In a sense, in most cases there is such a unifying narrative in a life of a person. To the extent that people consider the consequences of their actions they demonstrate that they do not see their actions as disconnected from other things they have done and might do, and they subordinate some ends to wider goals. That is, ordinary people not only display a degree of prudence in making choices but also recognize that the value of some actions is that they are means to more important goals. In fact, Bradley claims that most people act with some “ideal of life”, or some idea of what would make them perfectly happy, however vaguely expressed, and this orders their lives, governing their choices and actions. In a word, normal lives of mature adults are at least relatively systematic. Moreover, if a person has become habituated to act in certain ways (i.e., has developed a disposition to act thus and so), then her actions will tend to be relatively consistent. In such cases, says Bradley, we are dealing with a “standing will” and it explains why those who know someone well can predict what this person will do with a considerable degree of certainty and why that person feels pleased that others know she can be counted on to act appropriately. Standing desires are opposed to occurring desires ( Ethical Studies , Essay VII [1962: 283]). The latter is an appetite, and it is a temporary identification of the self with an object, which appears only in the presence of the object. The former is a “relatively permanent” identification with the object which is present regardless the presence of the object. Standing desire can take form of an interest proper, if what the self permanently identifies with is the object itself, or it can become lust, where the self is identified with the pleasure from acquiring the object. Standing desires play essential role in the realization of the personal project, allowing for certain values motivate us for a long period of time. Standing desires are not the only ones that bring unity into one’s self-realization process. Habitual desires are a very powerful mechanism. These are acquired through the repetitive identification of oneself with a certain object (Babushkina 2022). Developing habits of desire is a part of the habituation of the self ( Ethical Studies Essay I [1962: 53–55], Essay VII [1962: 295–296]) which, according to Bradley, is at the core of a person’s upbringing.

The problem with habitual desires, is that the self develops good habits through the same process that it develops bad ones: through repetition and choice patterns. Similarly, one can develop interest in (or standing desires for) something that is morally good and for something that is morally bad. That is to say that if the goal is merely to achieve some unity of one’s self, there is no quarantine that what one achieves is moral self-realization. So, the challenge for Bradley’s account of self-realization as a moral project is to explain how the agent achieves the right kind of unity. Instead of giving an account of character traits that would be good in themselves to pursue, Bradley appeals to the concept of the Moral Ideal to tackle this challenge: the moral self-realization is achieved through the identification of the self with the Moral Ideal.

The Moral Ideal is a difficult term to explain in Bradley’s ethics, but not impossible if we take into account that, from the metaphysical point of view, the moral ideal is a concrete-universal. This implies that we are dealing not with an abstract concept existing independently from real things, but with a concept, embedded in things it represents. Concrete-universal is always an instantiated concept; it cannot be described apart from the instances that express it. This, in turn, means that the moral ideal is not a phantasy or a plan in the head of a person, but an instantiated unity of different elements of person’s life (incl. her desires, beliefs, commitments, actions). This also means that there is not much to say about the moral ideal apart from my moral ideal or the ideal of my personhood, that is constructed based on the elements of my life. The fact that moral ideal is a concrete-universal, explains how a moral agent is able to achieve the unity of her personally through moral self-realization.

The closest Bradley comes to the explanation of the Moral Ideal is when giving a description of what he calls “the content of the ideal self” ( Ethical Studies , Essay V [1962: 219]). Under this general expression, Bradley lists three categories of commitments that are worth having, from the moral point of view (Babushkina 2016). One category consists of commitments to other people. These constitute moral obligations that we have due to various relationships we are in and different types of social roles we play. These commitments are referred to by Bradley as “my station and its duties”. Another category of commitments that are worth having are those that we have to humanity as such; commitments to treating others in ways they deserve as human beings. Here we move beyond mere social relationships between people, and to the obligation to treat all humans is a certain way. The third and last group of worthy commitments are those to truth (e.g., scientific inquiry) and beauty (artistic endeavors)—these Bradley tags as a non-social aspect of the ideal self. Each of these categories, in themselves, are rather abstract; these are a result of an attempt to classify all things that are worth striving for, and any aspiration can be a part of the moral ideal as long as it is universalizable. And it is only thorough my taking certain commitments upon myself (i.e., identifying with the moral ideal), that I bring any concrete content into it.

Another important aspect of the moral ideal is its normative force. As my moral ideal, it sets the standard of perfection. As such, it does not prescribe the moral agent any specific actions, but it tells her what she should be. Understanding which commitments are morally worth, the person is able then to apply those to her unique life situation, depending what relationships she is in, what social roles she has, and what aspirations and interests drive her. These helps to form a personalized moral ideal that will push forward her self-realization project.

Of interest to developmental psychology (cf. MacNiven 1996) of morality is Bradley’s account of the development of the moral consciousness, that is based on the assumption that social context provides the script for our desires and that children internalize these scripts while playing them out. At an early stage of mental life, the child will experience pleasure from some object—say an apple—and transfers the pleasant sensation to the object, so that it becomes part of the content of the apple, a part of what that object means to the child, or, better, a part of what the child sees in that object. The child generates an appetite for objects of this sort and in the presence of an apple the child will have a mixed reaction: a pleasant feeling because the object is seen as pleasant, but a painful feeling because she is not in possession of, or enjoying, the apple. This produces a felt tension—“felt” because it is occurring at a pre-cognitive level, before the child has beliefs about the object is or able to make inferences about the object based on past experience. This felt tension is desire and it moves the child to action, to try to take physical possession of it. Bradley’s psychological account differs from the hedonist’s in that whereas hedonism holds that a particular pleasure is willed, Bradley claims that the ideal object willed is a particular thing which has had a pleasant quality transferred to it and thereby attributed to the thing itself. Moreover, on Bradley’s account the will—once we get to the stage of having a fully developed self capable of having a will—is actually seeking the object willed because it represents the satisfaction of the self following the process of identification. However, at this stage we have at best a very primitive precursor of the self and it can only be said to affirm itself. That is, it lacks the developed consciousness necessary to representing ideal objects. Moreover, the child at this stage lacks the higher-order consciousness needed to see itself as realizing itself by attaining an ideal object with which it has identified its satisfaction. At this early stage we are only talking about appetite since the child desires the object only when it is present; at a later stage the child will gain a sense of these things as independent external objects that persist, ceteris paribus , and so can be desired in their absence.

The child also experiences other people and is eventually going to recognize them as individuals with independent wills—i.e., as others who have their own plans and projects and as selves attempting to realize themselves through their actions, and who, because of these facts, may oppose or confirm its own desires, oppose its will. Since initially these others are going to be family members or care-givers there will be a pre-conscious bond of affection between them and the child. When the child acts in accord with the will of another, pleasure results from the affirmation from that other person, while opposition is experienced as painful because it negates the bond of affection. This produces the felt tension similar to that which occurs in the case of an inaccessible desired object: a tension between the pleasure associated with the presence of the care-giver and the pain of being without the approval of that person. The main point here is that the child will tend to be good (i.e., fit in with the norms and expectations of the caregivers) solely because not doing so is painful, not because the child has, at this stage, any goal it is trying to achieve by being good, nor even the ability to articulate why it acts as it does. As Bradley says,

The child is taught to will a content which is universal and good, and he learns to identify his will with it, so that he feels pleasure when he feels himself in accord with it, uneasiness or pain when his will is contrary thereto, and he feels that it is contrary. This is the beginning of personal morality. ( Ethical Studies , Essay V [1962: 178])

As the child develops it learns the language of morality and thereby the moral perspective embedded in it. In this process the child learns the meaning of normative concepts and in doing so learns what they mean to others in the shared linguistic community. In this way the social community imparts a moral perspective. In fact, the community introduces the child to two levels of moral reflection: it imparts specific moral values and norms through its institutions and practices, and; it provides the moral concepts that are necessary to the task of conceiving of ways to improve society, in this way making possible the move to the more comprehensive level of Ideal Morality.

The above rehearsal glosses over several identifiable stages of moral development set out in Bradley’s moral psychology. These details can be ignored here, for the important point to note is that Bradley attempts to supple a psychological account of moral development that fills in the final part of his exposition of the theory of self-realization by explaining how one comes to identify one’s satisfaction with the achieving or realizing of particular moral ends. It is also important to note the roles he assigns to pleasure and pain. That these have a place in his moral theory indicates that the ethical hedonists were not totally wrong about their importance, their mistake being to think that promoting pleasure and diminishing pain marks the ultimate goal of moral activity. By contrast, Bradley argues that in acting morally we choose and will and act in terms of the idea of a state of affairs which represents a superior self to be realized. We feel pleasure at the thought of that self with which we have identified because we feel affirmed by the thought of its realization. We feel pain at the felt contradiction between this and our actual self and pain at the thought of not being the superior self we desire.

Bradley’s excursion into moral psychology represents an effort to explain the process whereby one identifies one’s satisfaction with a particular ideal object, which is an essential element in the structure of volitional action. He traces the transitions from early states of mental life through to the sort of consciousness exhibited by a mature moral agent. From primitive appetites which involve a precursor self that affirms itself through its desires we arrive at a variety of types of actions and of objects of volition and different relations between the self and the objects. Children move from the simple desire to possess the object to the pleasure taken in the approval of others, to self-conscious moral action. These stages also reveal the development of feelings and emotions and an increasing range of types of object that one might take pleasure in. In other words, there is not only the fixation of desire on certain objects, but also an extension of the individual’s range of interests and these move out beyond desired objects to an interest in other people and future events and so on.

An important feature of this developmental process is gaining knowledge of good and bad and the capacity to will both. The need for this arises, first, at the formal level of the structure of volitional action, which entails the dualism of inferior and superior selves (or conceptions of these). To get beyond formal necessary conditions to an account of specific actions this formal structure has to be filled in with some determinate content which explains what the nature of these two selves is. At the level of social morality this may involve no more than knowledge of what society demands of me—which I will identify as the superior, good self I should be—alongside my tendencies to go my own way which marks the bad self that opposes the social norms. But there must be more than mere knowledge, for it is also necessary, psychologically, that we actually feel the tension produced by the conflicting tendencies to be both good and bad. It is not simply that one fails to comprehend fully the nature of moral action without this, but that we also cannot feel the contradictions that will move us to action, and without action there is no morality. Hence, the common notion that moral agents are often viewed as having to expend a great deal of effort on the internal struggle between the desire to be good and a propensity to do things known to be bad is correct. In Bradley’s theory the ultimate moral end of self-realization presents two pictures of the self, labels one of these “superior” and sets the moral task as realizing that superior self in the face of the actual, inferior self. In this way moral conflicts are always internal struggles. In acting morally I aim at realizing my good self, which I see as my true self. Yet I cannot in good faith say that my bad self is not myself, with the result that, as Bradley rather picturesquely puts it, “when I enter the lists against it, it is at my own breast that I lay my lance in rest” ( Ethical Studies , Essay VII [1962: 277]). The battle against bad tendencies never ends, making the process of self-systematization a never-ending process. We can never fully realize our moral ideal and become the perfect self we are striving to be. But we can proximate it. As a result, self-realization is never complete; it is as long and diverse as the life we live.

It is not uncommon for secondary sources to assume that Bradley equates moral, social, political, and religious domains; this assumption leads to a lot of confusion concerning Bradley’s beliefs. In most cases, such assumptions can be traced to exaggerated presuppositions about Hegel’s influence on Bradley. Such presuppositions apart, careful reading of Ethical Studies reveals that Bradley makes a clear distinction between moral consciousness and religion, on the one hand, and between moral, social and political spheres, on the other.

Here are a few examples. Bradley finishes Ethical Studies with a brief consideration of religious consciousness, saying that “[m]orality issues in religion” ( Ethical Studies , Concluding Remarks [1962: 314]). It is not difficult to notice certain Hegelian overtones in this claim, which may lead one to believe that Bradley sees religion as a sort of “upgraded” morality. However, one must note that by itself the statement that “morality issues in religion” is not enough to point to Bradley’s adoption of the dialectical move from the final part of The Phenomenology of Spirit (Hegel 1807): the structure of Ethical Studies does not follow Hegelian dialectics in any consistent manner. What is more likely is that Bradley tries to delineate the sphere of moral practice (i.e., actions and their motivation) and show its difference from the sphere of religious practice. Bradley only discusses religion in the chapter called “Concluding Remarks”, placing it outside the main body of the book. This shows that the discussion of religion lies beyond the discussion of morality as such. And indeed, Bradley explains his choice by saying: “[a]nd here we should close these Essays, since here we go beyond morality” ( Ethical Studies , Concluding Remarks [1962: 313]).

Bradley further elaborates this distinction: thinking in moral terms presupposes a belief in the fundamental gap between reality and the desirable/ideal. Once this gap is bridged there is no more need for morality (in this Bradley comes close to Kant). To the extent that people have both a “good” and a “bad” self, they are a “self-contradiction”, and if these are necessary to morality as Bradley’s suggests they are then the ultimate moral end of action—self-realization as an infinite whole—cannot be achieved. As he puts it,

we are a self-contradiction: we never are what we feel we really are; we really are what we know we are not; and if we became what we are, we should scarcely be ourselves. ( Ethical Studies , Essay VI [1962: 234])

Morality really seeks its own demise for were the ideal self realized there would be nothing that remains to be actualized, at which point morality is at an end. “Morality aims at the cessation of that which makes it possible” ( Ethical Studies , Essay VI [1962: 234]). In the moral sphere, the opposition between what is real and what is ideal can never be overcome. Once they merge, it is no longer the sphere of morality. Moral actions aim to change reality to meet the ideal; while moral evaluations (in terms of right/wrong, good/bad) estimate how well we manage to change the word to become ideal. An agent is motivated morally as long as she believes that the ideal world does not yet exist (and hence the need to bring it about through actions); if the agent believes that the ideal world is already real in some way (e.g., through God), she is no longer motivated morally but religiously. The sphere of religious practice, for Bradley, is characterized by this belief that what ought to be already exists in the Absolute.

The tendency to read the identification of social/political and moral into Ethical Studies can also be traced to the conviction that Bradley’s ethical theory is an updated version of Hegel’s social morality, and from the persisting belief that Bradley identifies the moral self with one’s station, and moral obligation with social requirements. This approach, however, overlooks most of Bradley’s arguments against Hegelian-style bottom-up identification of the real and the ideal, put forth in Essay V (Babushkina 2019). In contrast to Hegel, Bradley believes that moral personhood cannot be reduced to the social:

the moral man can to a certain extent distinguish his moral essence from his particular function … the content of the ideal self does not fall wholly within any community, is in short not merely the ideal of a perfect social being. ( Ethical Studies , Essay V [1962: 205])

The core of Bradley’s argument is the claim that we cannot conclude anything about the moral character of the person solely from the diligence with which she performs what the society expects from her: it is an open question whether the one who fulfills her positional duties well is also morally good. We need an independent reason to determine whether her following social orders in that specific situation was a morally right thing to do; in the end, the state may be in “a confused or rotten condition, so that right and might do not always go together” ( Ethical Studies , Essay V [1962: 204]). We are not justified to reduce moral norms to custom and law: “[a] man can not take his morality simply from the moral world he is in” ( Ethical Studies , Essay V [1962: 204]). Moral goodness is “goodness not of any particular time and country” ( Ethical Studies , Essay V [1962: 205]) and it is incompatible with apparent cultural relativism of what people happen to value.

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How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

The Legacy of British Idealism , webpage put together by Will Sweet (St. Francis Xavier University).
Collingwood and British Idealism Studies [A list of back issues of the journal; the articles themselves are behind a pay wall.]

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Kohlberg's Theory of Moral Development

Kendra Cherry, MS, is a psychosocial rehabilitation specialist, psychology educator, and author of the "Everything Psychology Book."

Verywell / Bailey Mariner

Applications
Other Theories

Kohlberg's theory of moral development is a theory that focuses on how children develop morality and moral reasoning. Kohlberg's theory suggests that moral development occurs in a series of six stages and that moral logic is primarily focused on seeking and maintaining justice.

Here we discuss how Kohlberg developed his theory of moral development and the six stages he identified as part of this process. We also share some critiques of Kohlberg's theory, many of which suggest that it may be biased based on the limited demographics of the subjects studied.

What Is Moral Development?

Moral development is the process by which people develop the distinction between right and wrong (morality) and engage in reasoning between the two (moral reasoning).

How do people develop morality? This question has fascinated parents, religious leaders, and philosophers for ages, but moral development has also become a hot-button issue in psychology and education. Do parental or societal influences play a greater role in moral development? Do all kids develop morality in similar ways?

American psychologist Lawrence Kohlberg developed one of the best-known theories exploring some of these basic questions. His work modified and expanded upon Jean Piaget's previous work but was more centered on explaining how children develop moral reasoning.

Kohlberg extended Piaget's theory, proposing that moral development is a continual process that occurs throughout the lifespan. Kohlberg's theory outlines six stages of moral development within three different levels.

In recent years, Kohlberg's theory has been criticized as being Western-centric with a bias toward men (he primarily used male research subjects) and for having a narrow worldview based on upper-middle-class value systems and perspectives.

How Kohlberg Developed His Theory

Kohlberg based his theory on a series of moral dilemmas presented to his study subjects. Participants were also interviewed to determine the reasoning behind their judgments in each scenario.

One example was "Heinz Steals the Drug." In this scenario, a woman has cancer and her doctors believe only one drug might save her. This drug had been discovered by a local pharmacist and he was able to make it for $200 per dose and sell it for $2,000 per dose. The woman's husband, Heinz, could only raise $1,000 to buy the drug.

He tried to negotiate with the pharmacist for a lower price or to be extended credit to pay for it over time. But the pharmacist refused to sell it for any less or to accept partial payments. Rebuffed, Heinz instead broke into the pharmacy and stole the drug to save his wife. Kohlberg asked, "Should the husband have done that?"

Kohlberg was not interested so much in the answer to whether Heinz was wrong or right but in the reasoning for each participant's decision. He then classified their reasoning into the stages of his theory of moral development.

Stages of Moral Development

Kohlberg's theory is broken down into three primary levels. At each level of moral development, there are two stages. Similar to how Piaget believed that not all people reach the highest levels of cognitive development, Kohlberg believed not everyone progresses to the highest stages of moral development.

Level 1. Preconventional Morality

Preconventional morality is the earliest period of moral development. It lasts until around the age of 9. At this age, children's decisions are primarily shaped by the expectations of adults and the consequences of breaking the rules. There are two stages within this level:

Stage 1 (Obedience and Punishment) : The earliest stages of moral development, obedience and punishment are especially common in young children, but adults are also capable of expressing this type of reasoning. According to Kohlberg, people at this stage see rules as fixed and absolute. Obeying the rules is important because it is a way to avoid punishment.
Stage 2 (Individualism and Exchange) : At the individualism and exchange stage of moral development, children account for individual points of view and judge actions based on how they serve individual needs. In the Heinz dilemma, children argued that the best course of action was the choice that best served Heinz’s needs. Reciprocity is possible at this point in moral development, but only if it serves one's own interests.

Level 2. Conventional Morality

The next period of moral development is marked by the acceptance of social rules regarding what is good and moral. During this time, adolescents and adults internalize the moral standards they have learned from their role models and from society.

This period also focuses on the acceptance of authority and conforming to the norms of the group. There are two stages at this level of morality:

Stage 3 (Developing Good Interpersonal Relationships) : Often referred to as the "good boy-good girl" orientation, this stage of the interpersonal relationship of moral development is focused on living up to social expectations and roles . There is an emphasis on conformity , being "nice," and consideration of how choices influence relationships.
Stage 4 (Maintaining Social Order) : This stage is focused on ensuring that social order is maintained. At this stage of moral development, people begin to consider society as a whole when making judgments. The focus is on maintaining law and order by following the rules, doing one’s duty, and respecting authority.

Level 3. Postconventional Morality

At this level of moral development, people develop an understanding of abstract principles of morality. The two stages at this level are:

Stage 5 (Social Contract and Individual Rights ): The ideas of a social contract and individual rights cause people in the next stage to begin to account for the differing values, opinions, and beliefs of other people. Rules of law are important for maintaining a society, but members of the society should agree upon these standards.
Stage 6 (Universal Principles) : Kohlberg’s final level of moral reasoning is based on universal ethical principles and abstract reasoning. At this stage, people follow these internalized principles of justice, even if they conflict with laws and rules.

Kohlberg believed that only a relatively small percentage of people ever reach the post-conventional stages (around 10 to 15%). One analysis found that while stages one to four could be seen as universal in populations throughout the world, the fifth and sixth stages were extremely rare in all populations.

Applications for Kohlberg's Theory

Understanding Kohlberg's theory of moral development is important in that it can help parents guide their children as they develop their moral character. Parents with younger children might work on rule obeyance, for instance, whereas they might teach older children about social expectations.

Teachers and other educators can also apply Kohlberg's theory in the classroom, providing additional moral guidance. A kindergarten teacher could help enhance moral development by setting clear rules for the classroom, and the consequences for violating them. This helps kids at stage one of moral development.

A teacher in high school might focus more on the development that occurs in stage three (developing good interpersonal relationships) and stage four (maintaining social order). This could be accomplished by having the students take part in setting the rules to be followed in the classroom, giving them a better idea of the reasoning behind these rules.

Criticisms for Kohlberg's Theory of Moral Development

Kohlberg's theory played an important role in the development of moral psychology. While the theory has been highly influential, aspects of the theory have been critiqued for a number of reasons:

Moral reasoning does not equal moral behavior : Kohlberg's theory is concerned with moral thinking, but there is a big difference between knowing what we ought to do versus our actual actions. Moral reasoning, therefore, may not lead to moral behavior.
Overemphasizes justice : Critics have pointed out that Kohlberg's theory of moral development overemphasizes the concept of justice when making moral choices. Factors such as compassion, caring, and other interpersonal feelings may play an important part in moral reasoning.
Cultural bias : Individualist cultures emphasize personal rights, while collectivist cultures stress the importance of society and community. Eastern, collectivist cultures may have different moral outlooks that Kohlberg's theory does not take into account.
Age bias : Most of his subjects were children under the age of 16 who obviously had no experience with marriage. The Heinz dilemma may have been too abstract for these children to understand, and a scenario more applicable to their everyday concerns might have led to different results.
Gender bias : Kohlberg's critics, including Carol Gilligan, have suggested that Kohlberg's theory was gender-biased since all of the subjects in his sample were male. Kohlberg believed that women tended to remain at the third level of moral development because they place a stronger emphasis on things such as social relationships and the welfare of others.

Gilligan instead suggested that Kohlberg's theory overemphasizes concepts such as justice and does not adequately address moral reasoning founded on the principles and ethics of caring and concern for others.

Other Theories of Moral Development

Kohlberg isn't the only psychologist to theorize how we develop morally. There are several other theories of moral development.

Piaget's Theory of Moral Development

Kohlberg's theory is an expansion of Piaget's theory of moral development. Piaget described a three-stage process of moral development:

Stage 1 : The child is more concerned with developing and mastering their motor and social skills, with no general concern about morality.
Stage 2 : The child develops unconditional respect both for authority figures and the rules in existence.
Stage 3 : The child starts to see rules as being arbitrary, also considering an actor's intentions when judging whether an act or behavior is moral or immoral.

Kohlberg expanded on this theory to include more stages in the process. Additionally, Kohlberg believed that the final stage is rarely achieved by individuals whereas Piaget's stages of moral development are common to all.

Moral Foundations Theory

Proposed by Jonathan Haidt, Craig Joseph, and Jesse Graham, the moral foundations theory is based on three morality principles:

Intuition develops before strategic reasoning . Put another way, our reaction comes first, which is then followed by rationalization.
Morality involves more than harm and fairness . Contained within this second principle are a variety of considerations related to morality. It includes: care vs. harm, liberty vs. oppression, fairness vs. cheating, loyalty vs. betrayal , authority vs. subversion, and sanctity vs. degradation.
Morality can both bind groups and blind individuals . When people are part of a group, they will tend to adopt that group's same value systems. They may also sacrifice their own morals for the group's benefit.

While Kohlberg's theory is primarily focused on help vs. harm, moral foundations theory encompasses several more dimensions of morality. However, this theory also fails to explain the "rules" people use when determining what is best for society.

Normative Theories of Moral Behavior

Several other theories exist that attempt to explain the development of morality , specifically in relation to social justice. Some fall into the category of transcendental institutionalist, which involves trying to create "perfect justice." Others are realization-focused, concentrating more on removing injustices.

One theory falling into the second category is social choice theory. Social choice theory is a collection of models that seek to explain how individuals can use their input (their preferences) to impact society as a whole. An example of this is voting, which allows the majority to decide what is "right" and "wrong."

A Word From Verywell

While Kohlberg's theory of moral development has been criticized, the theory played an important role in the emergence of the field of moral psychology. Researchers continue to explore how moral reasoning develops and changes through life as well as the universality of these stages. Understanding these stages offers helpful insights into the ways that both children and adults make moral choices and how moral thinking may influence decisions and behaviors.

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By Kendra Cherry, MSEd Kendra Cherry, MS, is a psychosocial rehabilitation specialist, psychology educator, and author of the "Everything Psychology Book."

ESSAY CONTENTS

The moral impact theory of law.

abstract . I develop an alternative to the two main views of law that have dominated legal thought. My view offers a novel account of how the actions of legal institutions make the law what it is, and a correspondingly novel account of how to interpret legal texts. According to my view, legal obligations are a certain subset of moral obligations. Legal institutions—legislatures, courts, administrative agencies—take actions that change our moral obligations. They do so by changing the morally relevant facts and circumstances, for example by changing people’s expectations, providing new options, or bestowing the blessing of the people’s representatives on particular schemes. My theory holds, very roughly, that the resulting moral obligations are legal obligations. I call this view the Moral Impact Theory because it holds that the law is the moral impact of the relevant actions of legal institutions. In this Essay, I elaborate and refine the theory and then illustrate and clarify its implications for legal interpretation. I also respond to important objections.

author . Professor of Law and Associate Professor of Philosophy, UCLA; Faculty Co-Director, UCLA Law and Philosophy Program. For valuable discussions and comments on this paper or ancestors of it, I would like to thank Larry Alexander, Selim Berker, Mitch Berman, Jules Coleman, Ronald Dworkin, Les Green, Barbara Herman, Scott Hershovitz, Pamela Hieronymi, Ken Himma, Kinch Hoekstra, A.J. Julius, Frances Kamm, Sean Kelsey, Christine Korsgaard, Brian Leiter, Harry Litman, Andrei Marmor, Herb Morris, Steven Munzer, Derek Parfit, Stephen Perry, David Plunkett, Joseph Raz, Larry Sager, Scott Shapiro, Seana Shiffrin, Scott Soames, Larry Solum, Nicos Stavropoulos, and Jeremy Waldron. I am especially grateful to Andrea Ashworth, Seana Shiffrin, and Scott Shapiro for many invaluable conversations. Special thanks to Ben Eidelson and other editors of the Yale Law Journal for helpful suggestions.

Introduction

In this Essay, I develop an alternative to the two main views of law that have dominated legal thought. My view offers a novel account of how the actions of legal institutions make the law what it is, and a correspondingly novel account of how to interpret legal texts. According to my view, legal obligations are a certain subset of moral obligations. 1 Legal institutions—legislatures, courts, administrative agencies—take actions that change our moral obligations. They do so by changing the morally relevant facts and circumstances, for example by changing people’s expectations, providing new options, or bestowing the blessing of the people’s representatives on particular schemes. My theory holds, very roughly, that the resulting moral obligations are legal obligations. I call this view the Moral Impact Theory because it holds that the law is the moral impact of the relevant actions of legal institutions. 2

In order to provide an informal introduction to the theory, I begin by illustrating the theory’s account of statutory interpretation and contrasting that account with two more familiar accounts of statutory interpretation (those offered by the two main opposing views of law). I use an example drawn from the well-known case of Smith v. United States . 3 Smith had offered to trade a gun for cocaine. The Supreme Court divided over the question whether he was properly sentenced under a statute that provides for increased penalties if the defendant “uses . . . a firearm” in a drug-trafficking or violent crime.

According to a standard account of what statutory interpretation involves, in interpreting a statute, we seek the meaning or, better, the linguistic content of the statutory text. 4 This account is assumed without argument by both the majority and dissenting opinions in Smith . 5 Smith highlights a serious problem for this account, however. As the contemporary study of language and communication has made clear, there are multiple components and types of linguistic content. 6 In Smith , there are at least two types of linguistic content plausibly associated with the statutory text that would yield opposite outcomes in the case. First, there is the semantic content of the statutory text—roughly, what is conventionally encoded in the words. Second, there is the communicative content —roughly, what the legislature intended to communicate (or meant) by enacting the relevant text. 7

Trading a firearm is within the semantic content of the phrase “uses a firearm,” so the semantic content yields the result that Smith was properly sentenced. Plausibly, however, Congress intended to communicate that using a gun as a weapon was to receive an increased penalty. 8 For illustrative purposes, I will assume that this was Congress’s intention—what Congress meant. Thus, the communicative content yields the result that Smith should not have been sentenced to the increased penalty.

The familiar account according to which interpreting a statute is extracting its linguistic content has no way of adjudicating between multiple linguistic contents of the statutory text. The statutory text in Smith has both a semantic content and a communicative content, and they point in opposite directions. The account therefore offers no answer to the problem posed by Smith’s trading a gun for cocaine.

The opposing account of statutory interpretation associated with Ronald Dworkin’s influential theory of law instructs us to seek the principle that best fits and justifies the statute. 9 In Smith , we have two salient candidate principles: that use of a gun for any purpose in connection with a violent or drug crime warrants additional punishment; and that use of a gun as a weapon in connection with a violent or drug crime warrants additional punishment. Both principles fit about equally well—after all, the Supreme Court was sharply divided over which of these two better captured the meaning of the statutory text, and we have noted that both are plausibly linguistic contents of the text. On Dworkin’s account, the question then becomes which principle is morally better—i.e., which principle would, ex ante, be a better one to have. 10 Assuming that one principle is better than the other, Dworkin’s account thus does offer an answer to our problem. But the way in which it does so is problematic. At least in general, a straightforward appeal to which interpretation yields a morally better standard does not seem permissible in legal interpretation.

On the account of statutory interpretation implied by my theory of law, we interpret a statute by seeking to discover what impact the enactment of the statute, along with relevant circumstances, had on our moral obligations. Thus, we ask not which rule is morally better ex ante, but which moral obligations, powers, and so on (if any) the legislature actually succeeded in bringing about. What is the moral consequence of the fact that a majority of the members of the legislature, with whatever intentions they had, voted for this text, with its semantic content? Thus, for example, the semantic content and the communicative content of the statutory text are relevant if, and to the extent that, moral considerations, such as considerations of democracy and fairness, make them relevant. It might be argued on democratic grounds, for example, that the fact that popularly elected representatives intended to communicate a particular decision provides a reason in favor of citizens’ being bound by that decision. But the upshot of democratic considerations is a complex matter. A counterargument could be mounted that such a decision is binding on citizens only to the extent that it is encoded in the meaning of the words that the legislature used—mere intentions are not enough. Or it might be argued that, in the actual circumstances of a particular enactment, for reasons of both fairness and democracy, the public’s understanding of a statute’s effect matters more than the legislature’s actual intentions or the meaning of the words. To the extent that moral considerations point in different directions, interpreting the statute will require determining what the moral impact of the statute is, after all of the relevant values have been given their due. And the answer to this question may not correspond to any linguistic content of the statutory text.

It’s worth noticing how natural this account of statutory interpretation is. Return for a moment to the standard account, according to which statutory interpretation seeks the linguistic content of the statutory text. When faced with two or more linguistic contents that are competing candidates for a statute’s contribution to the law, it is very natural to appeal to considerations such as democracy and fairness to try to adjudicate between them. For example, one might try to argue that certain democratic considerations require that the statute be interpreted in accordance with what the legislature intended to communicate, rather than in accordance with the semantic content of the text. Once we have gone this far, it is difficult to resist the conclusion that we need to ask what the moral implications of the statute’s enactment are on balance, that is, taking all of the relevant values into account, as opposed to what certain aspects of democracy or fairness by themselves would support.

I have just sketched a way in which the Moral Impact Theory makes a difference at a relatively practical level—with respect to our understanding of statutory interpretation. Before concluding this Introduction, I would also like to indicate how the theory relates to a larger understanding of law’s nature and, in particular, of what law, by its nature, is supposed to do or is for . 11 Often our moral situation is worse than it could be in a particular way—namely, that it would be better if our moral obligations (and powers, and so on) were different from what they in fact are. For example, consider a situation in which a community faces a problem, and there are many different ways to go about solving the problem. For a variety of reasons—for instance, because one person’s efforts toward any given solution would not make a difference without participation by many others—it is not the case that anyone has a specific obligation to participate in a particular solution. But it would be better if everyone did have such an obligation. The legal system can change the moral situation for the better by changing the circumstances so that everyone does have the obligation to participate in a particular solution. Although I will not argue for it here, my view is that it is part of the nature of law that a legal system is supposed to change our moral obligations in order to improve our moral situation—not, of course, that legal systems always improve our moral situation, but that they are defective as legal systems to the extent that they do not.

The Moral Impact Theory fits smoothly into this background understanding of law. Legal institutions take actions to change our moral obligations by changing the relevant facts and circumstances. (In Section II.B., I explore a variety of ways in which they are able to do so.) With important qualifications, the resulting moral obligations are legal obligations. If a legal system is, by its nature, supposed to change moral obligations, it is not surprising that the central feature of law—its content—is made up of the moral obligations that the legal system brings about. Moreover, the view that a legal system is supposed, not merely to change moral obligations, but to do so in a way that improves the moral situation will, as we will see, play an important role in determining which of the moral obligations that result from actions of legal institutions are legal obligations.

Here is the plan for the rest of the Essay. In Part I, I situate the Moral Impact Theory more fully by contrasting it with two dominant views of law. In Part II, I develop the theory, beginning with a rough formulation and gradually refining it. In Part III, I illustrate the theory’s implications for legal interpretation in greater detail than I did at the start. In Part IV, I address two important objections to the theory.

I. situating the theory

The Moral Impact Theory stands in opposition to two dominant views of law. In the Introduction, I sketched the difference between the Moral Impact Theory’s account of statutory interpretation and those of the dominant views. In this Part, I introduce the two opposing views properly and explain briefly how the Moral Impact Theory differs from them.

A few preliminaries. In a jurisdiction like that of the United States or Massachusetts or France there are many legal obligations, powers, privileges, and permissions. I will refer to all of the legal obligations, powers, and so on in a given jurisdiction at a given time as the content of the law . 12 (For brevity, when context prevents confusion, I will sometimes simply use the law for the content of the law. 13 ) It is uncontroversial that at least many facts about the content of the law in a given jurisdiction are not among the ultimate facts of the universe. 14 Rather, we can explain why those facts obtain in terms of more basic facts, including, of course, facts about what various legal institutions such as legislatures, administrative agencies, and courts did and said and decided. I will use the term determinants of legal content —or determinants , for short—for the more basic facts that determine the content of the law. 15

A theory (or view ) of law, in the sense in which I use the term, is a constitutive explanation of the content of the law—i.e., an explanation of which aspects of which more basic facts are the determinants of legal content, and of how those determinants together make it the case that the various legal obligations, powers, and so on are what they are. 16 An example of the sort of thesis that could be part of a theory of law is the thesis that the content of constitutional law in the United States is constituted by the original public meaning of the text of the U.S. Constitution.

The first of the two dominant views of law is the Standard Picture . According to this vague picture—I hesitate to call it a theory—the content of the law is primarily constituted by linguistic (or mental) contents associated with the authoritative legal texts. 17 The Standard Picture is extremely widely taken for granted, and assumed to be common ground (though it is rarely explicitly espoused). In characterizing the Standard Picture, I use the phrase “linguistic content” rather than “meaning” because the latter has multiple senses, and I am trying to get at a particular one—what we might call meaning, strictly speaking . 18 Some linguistic contents are constituted by the contents of mental states. For example, on a common view, the speaker’s meaning of an utterance is determined by the content of certain of his or her communicative intentions. Moreover, the Standard Picture is often relaxed to include the contents of other mental states associated with an authoritative text, such as the content of a legislature’s intention to achieve particular legal effects by enacting a statute.

The Standard Picture has deep roots in ordinary thought about the law. A simple version of this picture is encapsulated in the layperson’s idea that the law is what the code or law books say. And among legal philosophers, the Standard Picture is widely taken for granted. 19 One reason is that it dovetails with—and indeed fills a gap in—legal positivism, the most widely held position in philosophy of law. 20 A central positivist thesis is that the content of the law depends, at the most fundamental level, only on social facts, understood as non-normative, non-evaluative facts. 21 But legal positivism does not specify how social facts determine the content of the law. To say that the content of the law is determined, at the most fundamental level, by social facts alone does not yet tell us, for example, how statutes contribute to the content of the law. One manifestation of this gap is that positivism by itself does not yield an account of statutory interpretation—of how to discover a statute’s contribution to the content of the law. How do we get from the fact that a given statute was enacted to the statute’s contribution to the content of the law?

In general, it is a difficult problem to say how practices, decisions, and the like determine unique norms. 22 The Standard Picture offers what appears to be an easy solution: the linguistic contents of the authoritative pronouncements are the contents of the legal norms. Moreover, the solution 1) is intuitively appealing to many (as noted, the idea that the law is what the texts say has deep roots in ordinary thought), and 2) requires no appeal to moral or other normative facts. Unsurprisingly, then, the Standard Picture is the standard positivist view with respect to that issue. 23 The Standard Picture yields the account of statutory interpretation, discussed in the Introduction, according to which the interpretation of a statute is primarily a matter of extracting its linguistic content—an account that would be accepted by most positivists.

The widespread assumption of the Standard Picture also plays a role in explaining legal positivism’s influence. Unlike positivism, the Standard Picture is typically an implicit assumption that is rarely explicitly acknowledged or defended—and, indeed, it is often assumed to be common ground. 24 And the widespread assumption of the Standard Picture biases the debate in favor of legal positivism. Because the Standard Picture holds that the law is primarily constituted by the contents of authoritative pronouncements, it leaves only a limited role that morality could play. All of the anti-positivist options that, given the Standard Picture, are most naturally taken to be available suffer from obvious and serious problems. 25

This completes my introduction of the Standard Picture, the first of the two dominant views to which my view is opposed. In sum, the Standard Picture is widely taken for granted, and assumed to be common ground, by contemporary philosophers of law (though it is rarely explicitly espoused). 26

The second main view is that of Ronald Dworkin, which, though well-known and influential, is far less widely accepted than the Standard Picture. 27 Dworkin conceives of the law as an underlying, idealized source from which all legal practices flow. More specifically, the content of the law is the set of principles that best morally justifies past legal and political practices. 28 Dworkin famously explicated the relevant kind of moral justification with his notions of fit and justification. 29

The Moral Impact Theory, like Dworkin’s theory and unlike the Standard Picture, holds that the relation between legal practices and the law is a moral one. But, unlike Dworkin’s theory, the Moral Impact Theory holds that the law is the moral impact or effect of certain actions of legal institutions—i.e., the moral obligations that obtain in light of those actions—rather than the set of principles that best justify them. To use a spatial metaphor, on the Moral Impact Theory (as on the Standard Picture), the law is downstream of the legal practices; on Dworkin’s theory, by contrast, the law is upstream of the legal practices. Figure 1 illustrates this contrast. 30

There are several other closely related differences between the Moral Impact Theory and Dworkin’s view. First, the Moral Impact Theory makes no appeal to Dworkinian interpretation—that distinctive form of interpretation according to which the basic question is which interpretation would make the legal system the best it can be, or, more specifically, which principles best morally justify the practices of the system. In fact, according to the Moral Impact Theory, working out the content of the law is not a genuinely hermeneutic enterprise—rather, it involves straightforward moral reasoning about the moral consequences of various facts and circumstances. Second, according to the Moral Impact Theory, the content of the law is a subset of what morality, taking into account all the relevant considerations, requires. By contrast, there is no obvious reason why the set of principles that best morally justifies the actual practices of a legal system would be a subset of what morality requires. Certainly, Dworkin never argues for or even suggests any such claim. 31 On the face of it, one might expect that the principles that best fit and justify the actual, often severely morally flawed, practices would be principles that one should not follow, even given the existence of the legal practices. And, in fact, Dworkin accepts that legal requirements may not be moral requirements, indeed that law may be “too immoral to enforce.” 32 Finally, the Moral Impact Theory does not license an argument that because a standard would be a morally good one ex ante, it is part of the content of the law. On Dworkin’s view, however, the fact that a principle is more morally justified counts in favor of its being part of the content of the law; moreover, as we saw with respect to the Smith example, whenever the competing candidate principles fit roughly equally well, the fact that a principle is more morally justified is decisive. In sum, though both the Moral Impact Theory and Dworkin’s theory afford morality an important role, they offer very different accounts of the content of the law.

The three views considered here yield very different understandings of legal interpretation as well. The Standard Picture holds that legal interpretation involves answering the question: what is the linguistic content of the legal texts? On this picture, there is little or no role for moral reasoning in legal interpretation, except perhaps when the legal texts explicitly involve moral terms. 33

On Dworkin’s view, legal interpretation involves answering the question: which principles best morally justify the legal practices? In terms of the heuristic that Dworkin often used to explain his account of legal interpretation, it involves finding the most morally justified interpretation that sufficiently well fits the legal practices. 34 The Moral Impact Theory rejects both understandings of legal interpretation. It takes the question of legal interpretation to be: what is morally required as a consequence of the lawmaking actions? And it does not understand the universe of lawmaking actions to consist exclusively of issuing texts. When the relevant actions do involve issuing texts, the linguistic content of those texts is only one relevant consideration in the calculation of the moral impact of the actions.

The prominence of the Standard Picture and the Dworkinian view may make it seem that there is a stark choice: either legal interpretation does not involve moral reasoning or it involves the kind of moral reasoning that Dworkin spells out—moral reasoning directed at answering the question of which candidate interpretation makes the legal system “the best it can be,” 35 to use Dworkin’s phrase. The Moral Impact Theory opens a third way: legal interpretation involves moral reasoning about what is required as a consequence of the relevant lawmaking actions. 36

I mentioned in the Introduction one reason that the Moral Impact Theory is a natural position. We can now recognize several other, closely related reasons. First, at least for many theorists, it is plausible that moral reasoning has a place in legal interpretation. But, as mentioned above, it seems wrong to think that the relevant kind of moral reasoning is moral reasoning concerning which interpretation of a legal text would be ex ante morally preferable. The Moral Impact Theory’s account of statutory interpretation allows a role for moral reasoning that is more procedural. We ask about the moral implication of the fact that, say, the legislature enacted a statute or a court decided a controversy in a particular way, not about which interpretation of the statute or judicial opinion would be morally best. As we will see, the fact that a legal institution acted in a particular way can, along with background circumstances, change our moral obligations—for example, making participation in a particular scheme morally obligatory, despite the fact that the scheme is seriously morally flawed.

Second, legal systems treat legal obligations as genuinely binding obligations that are generated by the legal institutions. The Moral Impact Theory vindicates this treatment. It maintains that the legal obligations are the genuinely binding obligations that are generated by the legal institutions. By contrast, on the Standard Picture, the legal obligations are simply constituted by the linguistic contents of the pronouncements of legal institutions. In general, there is no reason to think that such “obligations” are genuinely binding. For similar reasons, legal positivists have struggled to explain the use of the term legal obligation . For example, influential positivists have argued that to say that there is a legal obligation is to say that, from the perspective of the legal system, there is a moral obligation. 37 The account thus denies the commonsense view that a legal obligation is a kind of obligation at all. For, on this view, it can be true that one has a legal obligation despite the fact that one has no obligation (as long as the legal system takes one to have a moral obligation).

Third, the Moral Impact Theory makes it easy to explain our dominating concern with law. We generally treat the law not merely as one relevant consideration among many, but as a central concern, indeed as excluding the relevance of other considerations. It is easy to understand why we would have such interest in the moral consequences of the legal practices. If the legal institutions change what we are obligated to do, it is vital to work out that change. By contrast, it is much less easy to understand why we would be interested in identifying the principles that best justify the legal practices (or that make them the best they can be). More precisely, although we might be interested in such principles, for example because of the value of principled consistency, they would be merely one relevant consideration in reaching practical judgments.

A similar point applies to the Standard Picture. The ordinary meaning of the legal texts is obviously a relevant consideration in practical deliberation, but it is hard to see why it would deserve the central and exclusive focus of attention that the Standard Picture gives it. This point is even stronger than it might at first appear because, as noted above, there are typically multiple different types of linguistic and mental content associated with each authoritative legal text. In the case of a statute, for example, there is the semantic content of the text, what the legislature intended to communicate, what the legislature asserted, what the legislature presupposed and implicated, what the legislature would reasonably be taken to have intended to communicate, what legal effect the legislature intended to achieve, and so on. 38 Proponents of the Standard Picture typically assume that, without appeal to moral considerations, one type of content can be identified as the onethat constitutes the content of the law. 39 But it is unclear why we should be exclusively concerned with one such content. On the Moral Impact Theory, all of the linguistic and mental contents associated with the legal texts are among the factors that are potentially relevant to our obligations. They—and other morally relevant factors—are given whatever relevance they in fact deserve.

II. the theory

In this Part, I develop the Moral Impact Theory in three stages. Section A makes a few preliminary clarifications and refinements. Section B explains, via several examples, how legal institutions can change our moral obligations, thereby creating legal obligations. Finally, Section C clarifies how the theory distinguishes legal obligations from other moral obligations.

We can begin with a rough and incomplete formulation of the theory:

The Moral Impact Theory (version 1): The legal obligations are those moral obligations created by the actions of legal institutions.

On my view, legal institutions take various kinds of actions, such as voting on bills and deciding cases, that change our moral obligations. The resulting moral obligations are our legal obligations.

A. Preliminary Clarifications and Refinements

1. what do i mean by moral obligations.

My usage of the term moral is relatively standard, but, because the term is used in various ways, I offer brief clarification. The relevant obligations—the ones that, according to my theory, are legal obligations—are simply genuine, all-things-considered, practical obligations.

Let me take the italicized terms in reverse order. First, the relevant obligations are practical ones—i.e., obligations that concern what one should do , as opposed to what one should think or feel. 40 Thus, for example, we are not concerned with epistemic obligations, which concern the formation and revision of beliefs. (The law of evidence does not concern what the finder of fact should believe, but rather concerns such questions as what evidence may be presented to the finder of fact and what evidence the finder of fact may consider.)

Second, the relevant obligations are all-things-considered obligations, as opposed to merely pro tanto ones. If one makes a promise to pick up a friend at the airport, and one’s mother becomes severely ill, then taking all of the relevant considerations into account, one should not pick up the friend at the airport. The obligation may still exist, and consequently one might be morally required to apologize or to make up for its breach. In a terminology that has become standard, we can say that the obligation to pick up the friend is, in light of the mother’s illness, merely a pro tanto obligation. By contrast, an all-things-considered obligation is one that, taking all relevant considerations into account, one should fulfill. 41

Third, the point of saying that the relevant obligations are genuine is not that there are two types of obligations, genuine ones and non-genuine ones. Rather, the point is to distinguish my usage from what we might call the sociological sense of the term “obligation” (and of other normative terms such as “reason,” “right,” and so on). To say that a group has an obligation to perform some action in the sociological sense is to say, roughly, that members of the group believe that they have such an obligation (and perhaps have other relevant attitudes and tendencies, such as disapproval of people who do not perform the action in question). An anthropologist might say, for example, that for a particular group it is obligatory (in the sociological sense) to follow particular dietary laws. 42 The fact that members of a group believe that something is obligatory obviously does not imply that they have any genuine obligation. For instance, the fact that a cult believes that it is obligatory to sacrifice one’s firstborn child does not imply that this action is obligatory. On my theory, what matters is not whether people believe that they have certain obligations, but whether they actually do. 43

In my view, genuine, all-things-considered, practical obligations are all-things-considered moral obligations. 44 I therefore will often refer to such obligations as moral obligations . (For brevity, I generally omit the qualification all-things-considered .)

2. The Moral Profile

As a shorthand, I have been writing of obligations. But the content of the law includes more than just obligations. For example, it includes powers, privileges, and perhaps permissions. When I write about the way in which legal institutions change our moral obligations, I mean to include the way in which they change our moral obligations, powers, privileges, and so on. I have coined the term moral profile to cover all of these, but, for convenience, I sometimes write “moral obligations” or just “obligations.” 45 With this clarification, the theory can be reformulated more precisely:

The Moral Impact Theory (version 2): The content of law is that part of the moral profile created by the actions of legal institutions.

3. Legal Texts Versus Legal Standards

It will be important to distinguish different uses of the term law . As a mass noun, law can refer to the content of law or to the legal system. As a count noun, a law can refer either to an authoritative legal text (such as a statute or ordinance or a provision thereof) or to a legal standard, requirement, rule, or principle. It is this latter distinction that I want to emphasize here. 46 An authoritative legal text is a linguistic entity. By contrast, a legal standard is a norm. Texts and norms are fundamentally different kinds of things. A text may express a norm, just as a numeral may express a number or a sentence may express a thought. But a text is no more a norm than the Roman numeral “IV” is the number four or than the sentence “ c’est la vie ” is the thought that that’s life. (If the distinction is not immediately evident, consider the moral case. No one would confuse the moral norm against causing unnecessary suffering with a sentence or text.) Moreover, it is a substantive claim that the issuance of an authoritative text makes it the case that a legal norm corresponding to the linguistic content of the text obtains. 47 Indeed, it is the central thesis of the Standard Picture.

Despite the obviousness of the distinction, legal practitioners and scholars habitually use terms such as statute and provision interchangeably with terms such as rule and standard . The prevalence of the Standard Picture explains these habits. On the Standard Picture, although texts are not norms, there will be a relatively straightforward correspondence between texts and norms. 48

The Moral Impact Theory is an account of how actions of legal institutions, including importantly the issuance of authoritative texts, make it the case that legal norms obtain. And, according to the Moral Impact Theory, the relation between texts and norms will be more complex than the Standard Picture would have it. 49 Although using terms for legal texts and legal norms interchangeably is harmless in many contexts, in the present context it will be important to distinguish carefully between statutes and norms. To avoid confusion, I will be careful to use statute , provision , and the like exclusively for texts, and to use standard , norm , and the like exclusively for norms. And I will not use law as a count noun without explicit clarification.

B. How Legal Institutions Change the Moral Profile

How can legal institutions like legislatures and courts change our moral obligations? On the Standard Picture, legal institutions issue authoritative legal pronouncements—statutes, judicial decisions, and the like—the linguistic content of which becomes the content of the law simply in virtue of the fact that it was authoritatively pronounced. We can express this idea by saying that, on the Standard Picture, authoritative legal pronouncements change our legal obligations directly . 50 This change in legal obligations may, depending on the circumstances, affect moral obligations. Thus, on the Standard Picture, the standard way for legal institutions to change our moral obligations is by directly changing our legal obligations (by issuing authoritative legal pronouncements).

On the Moral Impact Theory, by contrast, the idea is not that legal institutions change the moral profile by changing the content of the law. Any such suggestion would be viciously circular given that, according to my theory, the changes in the content of the law brought about by the legal institutions are to be explained by the changes in the moral profile brought about by the legal institutions. Instead, the idea is that legal institutions change our moral obligations by changing the relevant circumstances (and not by doing so via changes in the content of the law). There are many different tools that legal institutions can use to bring about such changes in the moral profile.

I can best explain with examples. I use them to illustrate ways in which legal institutions can change our moral obligations by changing the relevant circumstances, thus creating legal obligations. The crucial point is that the examples do not involve changing the moral profile by changing the content of the law, but, rather, changing the content of the law by changing the moral profile. I will come back to this point about the direction of explanation below. 51

First, the establishment of a legal system and the actions of legal institutions in maintaining security and punishing wrongdoers can make it morally impermissible to use violence. Without a legal system, it may be morally permissible for people to use violence against others who attack or threaten to attack them or their families or allies. Indeed, it may be morally permissible for people to use violence against others who are endangering their well-being in other ways, for example by taking food or water on which they rely. By maintaining a monopoly on the use of force, effectively protecting people against violence, and reliably punishing wrongdoers, a legal system can make violence morally impermissible, except in a very narrow range of circumstances. Notice that, in this example, actions of legal institutions other than the issuance of texts play an important role in improving the moral situation.

Second, given the great moral importance of advance notice of punishment and the indeterminacy—or at least uncertainty—with respect to what punishment is morally appropriate, the punishment of wrongdoers is in general morally problematic without action by legal institutions. 52 A legal system plausibly can make punishment morally permissible by giving notice of which morally wrong acts are punishable and what the corresponding punishments will be.

Third, in the punishment example, the actions of legal institutions are able to make determinate and knowable aspects of morality that are otherwise either relatively indeterminate or uncertain. There are many other cases of this and related phenomena. For example, it is clear that agents who break at least some promises have resulting obligations to the promisee, but there is a great deal of uncertainty about what sorts of remedial actions are appropriate with respect to different promises, and it is plausible that there are frequently a variety of different ways in which the remedial obligations can be met. 53 Once the legal system provides certain contract remedies, however, people who make promises act against that background, and this can render determinate and certain or otherwise change what is morally required in the event of breach. The case of accidental breach is a nice example. Ex ante, it is unclear and perhaps indeterminate what remedy is morally required if one breaches a promise accidentally. The actions of legal institutions make the remedy for accidental breach of a legally binding promise clear and determinate. 54

Fourth, consider the familiar example of a coordination problem. 55 It is sometimes important that all or nearly all people act in the same way, though there are several equally good ways in which everyone could act. It is important, for example, that everyone use electrical outlets that meet the same specifications, though there are many different specifications that would work equally well. Suppose a legislature directs everyone to adopt a particular solution. In the simplest kind of case, this action by the legislature may well have the effect of making the specified solution more salient than the others. As a result, given the moral reasons for following the solution that most other people are likely to follow, everyone may now have a moral obligation to adopt the specified solution.

Matters may be more complicated, however. Because of a wide variety of factors—established practices in the relevant industry, early misunderstandings of the legislation by a particularly influential company or by government inspectors, basic features of human psychology, new technological developments not predictable when the legislature acted, and so on–the result of the legislature’s action may be that a solution that is somewhat different from the one specified by the legislature becomes the most salient one. That solution may therefore come to be morally obligatory, despite the fact that it does not correspond to the linguistic content of the statute.

In both kinds of cases, the legislature has changed the moral profile, creating a new moral obligation. On my account, this new moral obligation counts as a legal obligation because of the way in which it came about.

Fifth, to the extent that people have the ability to participate equally in governance, legal institutions can harness democratic considerations to alter the moral landscape. Promises and agreements are a useful analogy. By making promises and entering into agreements, people change their moral obligations. The fact of agreement has moral force. Even if what was agreed on is an arrangement that is seriously morally flawed—a different arrangement would have been much fairer, for example—the fact that the arrangement was agreed on may be sufficient to create a moral obligation.

Similarly, the fact that a decision is reached by a procedure that is part of a system of governance in which everyone has an equal opportunity to participate has moral force. I don’t mean to suggest that people are morally bound by any decision of a legal institution in a democratically constituted government. But to the extent that self-government results in an arrangement, there are moral reasons for people to abide by the arrangement. I will generally refer to such moral reasons as “democratic considerations,” “reasons of democracy,” or the like.

It is a complex matter what democratic considerations support. It certainly cannot be assumed that democratic considerations always translate into some simple formula, such as whatever a popularly elected legislature intended. 56 For example, there are familiar ways in which legislatures fail to be accountable to the public. 57

According to the Moral Impact Theory, the relevance of democratic considerations does not derive from the history and traditions of our legal system. It is not, for example, that we are seeking principles that fit and justify our practices, and, because those practices happen to be democratic, the relevant principles turn out to be democratic. Rather, it is a general moral truth that, to the extent that people have equal opportunity to participate in procedures of governance, they acquire moral reasons to comply with the decisions that are reached through those procedures. Democratic considerations therefore are relevant in all legal systems, not just those with democratic traditions. Of course, to the extent that a legal system is part of a system of government that does not allow people to participate, it will not be effective at harnessing democratic considerations.

It is worth noting that, as with agreements, democratic considerations can provide moral support for seriously morally flawed arrangements. The fact that the democratic process has settled on a particular scheme provides reasons for compliance with that scheme, even if the scheme is far from the best scheme that could have been chosen.

I want to emphasize that, in appealing to democratic considerations, I do not mean to suggest that there is a general moral obligation to comply with directives of popularly elected representatives in the circumstances of contemporary nations. There is a widespread consensus that there is no such general moral obligation, and I think that the consensus is correct. 58 Indeed, I have elsewhere argued that one of the attractions of my account of law is that it explains how legal systems can generate morally binding obligations despite the fact that there is no general moral obligation to obey directives from legal authorities. 59 Although there is no such general moral obligation, democratic considerations can reinforce other factors of the sort that my examples illustrate, yielding moral obligations in particular cases. For example, in the case of a coordination problem, the fact that the solution was democratically chosen may add democratic considerations to the other considerations, such as salience, supporting the solution. In general, in real cases, the different kinds of considerations illustrated by the examples often reinforce each other.

Sixth, legal institutions can create moral obligations to participate in specific schemes for the public good, such as paying taxes. Without a legal system, people will have general moral obligations to help others. But there will often be no moral obligation to give any particular amount of money to any particular scheme. For one thing, especially when it comes to problems of any complexity, many different possible schemes are likely to be beneficial, and the efforts of many people are needed for a scheme to make a difference. Nothing determines which possible scheme is the one that people should participate in. In addition, there is no mechanism for people to participate in one common scheme. By specifying a particular scheme and making it salient, creating the mechanism for everyone to participate in that scheme, and ensuring that others will not free-ride, legal institutions can channel the pre-existing, relatively open-ended, moral obligations into a moral obligation to pay a specified amount of money into that scheme. 60

Again, the moral obligation that legal institutional action brings about may be to participate in a scheme that is seriously morally flawed. Suppose that it is very important to have some mechanism in place for solving a particular problem, for example, preventing violence or ensuring clean drinking water. Then, if a particular solution has the best chance of being implemented, it may be morally required to do one’s part in that scheme even if it is significantly worse than—for example, more unjust than—the ex ante best solution to the problem. The fact that legal institutions are implementing a particular scheme can make it the case that that scheme has the best chance of being adopted and therefore that it is morally obligatory. Similarly, once a particular morally flawed rule has been widely adopted and relied on, it may be unfair not to follow it. What legal institutions actually do , not merely the linguistic content of their pronouncements, can therefore play an important role. And, as in the case of a coordination problem, the scheme that becomes morally obligatory as a result of legal institutional action may not be one that corresponds to the linguistic content of any pronouncement.

In certain kinds of situations, however, the linguistic content of directives will be morally binding. Court orders directed at specific individuals are a good example. Because of the overwhelming moral importance of having a way of ending disputes peacefully, there are powerful moral reasons to give binding force to such specific orders. 61

I should emphasize that I am not suggesting that making a particular scheme salient, creating a mechanism for participation, and preventing free-riding are necessarily sufficient to create the relevant moral obligation. It will depend on all the circumstances. A corresponding caveat applies more generally across the examples.

Seventh, the point about the legal system’s ability to ensure participation is of great general importance. In many situations, one person’s taking action toward some community benefit will be worthless, or nearly so, without the actions of many others. In such cases, if there is no reasonable expectation that others will cooperate, there is likely no moral requirement that a particular person should participate. By using the threat of coercion, legal institutions can ensure the participation of others, thus removing this obstacle to a moral obligation to participate.

Eighth, and finally, the adjudication of cases is another way in which legal actors can change the moral profile. The considerations relevant to the impact of a judicial decision on the moral profile are complex. I will briefly explicate these considerations by sketching how the actual practice of interpreting appellate case law can be explained as the result of the interaction between them. 62

To begin with, note that on the Standard Picture, working out an appellate decision’s contribution to the law should be a matter of identifying an authoritative text—which might be only some portion of the judicial opinion—and then extracting its linguistic content. Indeed, at least once the relevant text is identified, interpreting appellate decisions should be no different from interpreting statutes.

Our actual practice is very different. The standards that appellate courts announce and the reasoning that they offer are given substantial attention, but they are far from the end of the story. In deciding how to resolve a new case in light of a past decision (or decisions), a past decision can be distinguished by pointing out that the present case has relevantly different facts, even if the present case falls within the standard apparently announced by the court in the past case. Moreover, the standards announced in the past case can be treated as nonbinding dicta on the ground that they go beyond what was necessary for resolution of the case.

According to the Moral Impact Theory, considerations of fairness support treating like cases alike, so the fact that a case is resolved in a particular way provides a reason for treating relevantly similar cases in the same way in the future. To the extent that we must treat like cases alike, the resolution of cases will generate standards that affect the proper resolution of future cases. On the other hand, at least for many kinds of issues, democratic considerations favor the creation of standards by representative bodies such as legislatures. Thus, there is an apparent tension between these two kinds of considerations.

But treating like cases alike does not warrant privileging the way in which the court explains its decision or the standards that it announces. What matters with respect to treating like cases alike is whether future cases are in fact relevantly similar to the past case, and that is a moral question, not a question of what the court in the past case said. Therefore, treating past decisions as governing only relevantly similar cases—through the practices of distinguishing past decisions and treating the announcement of rules as dicta—can be seen as a way of reconciling the value of treating like cases alike with democratic considerations that militate against courts’ creating general standards.

The situation is more complicated, however. Depending on the legal system’s practices with respect to precedent, the court’s reasoning and any standard that it announces may create expectations and, for that reason, engage fairness considerations. Moreover, even though a court does not represent the interests of constituents in the way that a legislature does, democratic values having to do with public deliberation give weight to a court’s public offering of reasons in support of a standard. Thus, these other aspects of fairness and democracy explain the careful attention given to past courts’ explanations of their decisions.

This concludes my discussion of ways in which legal institutions can change the moral profile. I emphasize two points about the examples. First, even when, as is typical, the relevant action includes the issuance of some kind of text, the content of the law is not determined simply by the meaning of the text. Rather, the content of the law depends on the moral significance of the fact that the legal institution took the action in question (including the issuance of the text). Judicial decisions illustrate this point well.

Second, in the examples, various kinds of action by government officials, not just pronouncements, alter the moral profile. The examples involve, among other things, the actions of legal officials in setting up actual mechanisms for collecting taxes, protecting people from violence, and taking or threatening enforcement action against shirkers to enforce people’s participation in collective schemes.

As noted, my examples involve actions by legal officials. But how does the legal system instigate appropriate action by officials? If the legal system gets legal officials to act by instructing them to do so, and if such instructions generate legal obligations to act as instructed, then does my account tacitly assume at least some part of the Standard Picture’s understanding of how legal obligations are generated?

This objection is off target. A preliminary point is that officials often do not need to be specifically instructed how to act. Legislators propose legislation, vote on bills, and so on without legal instructions specifying what legislators are to do. Similarly, courts and executive officials take a wide range of actions without specific instructions.

More importantly, although authoritative pronouncements, such as statutes, regulations, and executive orders, are an important part of the way in which a legal system gets officials to act, this use of authoritative pronouncements is not in tension with my theory. As noted above, for familiar reasons, ordinary citizens in contemporary nations, even democratic ones, do not have a general moral obligation to do what the legislature or other legal institutions command. 63 Government officials are an important exception, however. The moral obligation of officials is generally overdetermined. They have explicitly consented to the government, have voluntarily assumed an obligation to carry out the instructions of their superiors, and have accepted benefits that they could easily have declined. Therefore, unlike the situation with respect to ordinary citizens, the legal system can typically generate moral obligations of government officials simply by specifying what they are required to do. And those moral obligations, on my account, are legal obligations.

Even in such circumstances, however, the Moral Impact Theory affords authoritative pronouncements a role that is crucially different from the one envisioned by the Standard Picture. According to the Standard Picture, legal obligations come about simply because the relevant content is authoritatively pronounced. By contrast, on the Moral Impact Theory, when circumstances obtain in which authoritative pronouncements are capable of generating corresponding moral obligations, the pronouncements change the content of the law via a change in the moral profile. For example, an executive order directing legal officials to act generates a moral obligation for those officials to act accordingly. This moral obligation comes about not simply because the order was authoritatively issued, but also because of the morally relevant background circumstances—for example, that the officials have voluntarily assumed an obligation to obey, have accepted benefits, and so on. The consequent moral obligation is a legal obligation, so the explanation of the legal obligation goes through the relevant moral considerations.

More generally, there are special circumstances in which commands do generate moral obligations to do what is commanded. That the person commanded is an official of the legal system is simply one such special circumstance. When the relevant circumstances obtain, authoritative pronouncements provide a shortcut for a legal system. The legal system can use such pronouncements to generate moral obligations—and these moral obligations, according to the Moral Impact Theory, are themselves legal obligations. In sum, legal systems can use diverse tools to generate moral obligations. Those tools include, under appropriate circumstances, authoritative pronouncements. 64

I hope that the examples have clarified the point that I highlighted earlier about the direction of explanation. It is not that a legislature or court pronounces a norm, which thereby becomes a valid legal norm, and, because of moral reasons for obeying the law, ultimately gives rise to a genuine (moral) obligation. The order of explanation between the legal obligations and the moral obligations is reversed in my account: the legislature votes or the court decides a case, thus possibly creating genuine obligations through the kinds of mechanisms I have been illustrating. Those genuine obligations then are legal obligations.

The examples also are suggestive of what law and legal systems, by their nature, are supposed to do or are for . 65 In many of the examples, it would be better if people’s obligations were different from what they in fact are, and the actions of legal institutions have the potential to improve matters by changing the relevant circumstances, thus changing moral obligations. As mentioned in the Introduction, my view (which I do not argue for in this Essay) is that it is part of the nature of law that a legal system is supposed to improve our moral situation in the kind of way that I have described—not, of course, that legal systems always improve our moral situation, but that they are defective as legal systems to the extent that they do not.

C. Clarifying Which Moral Obligations Are Legal Obligations

Thus far, I have written informally of that part of the moral profile created by legal institutions. We need to do more to pin down which moral obligations are legal obligations.

1. Pre-Existing Moral Obligations

In some instances, legal norms have content that is the same as, or at least similar to, that of pre-existing moral norms. For example, the criminal law includes many legal obligations, such as obligations not to harm or kill other people, that have content closely related to moral norms that exist independently of the law. Thus, it might be thought that the relevant moral obligations are not created by the actions of legal institutions and therefore are not legal obligations. In that case, the Moral Impact Theory would have the consequence that some of what we take to be paradigmatic legal obligations, such as the obligation not to kill, are not legal obligations at all.

The needed refinement is that we must understand “that part of the moral profile created by the actions of legal institutions” to include obligations that are altered or reinforced by the actions of legal institutions. (Rather than rewording the official statement of the theory, I will simply stipulate this clarification.)

I begin with obligations that are altered. When a legislature enacts a criminal prohibition on conduct that is already morally prohibited, the legislature’s action typically alters the content of the obligation. 66 There are at least two kinds of alterations in content—changes in the first-order content of the obligation, and changes in the remedies available in case of a violation. Consider the case of statutory rape. Before action by legal institutions, the content of the moral prohibition will be relatively vague, perhaps something along the lines of: sex with children is prohibited. Once the legal institutions have acted, the content of the prohibition will typically be much more precise. For example, the actions of the legislature may result in a precise age of consent. The content may become more precise in various other ways, for example, with respect to whether the prohibition applies to everyone or only to adults, whether the sex of the victim and perpetrator matter, whether there are exceptions for marriage, and so on.

Next, legislative action will also typically alter the remedies or punishments for a violation of an obligation. Morality tends to be rather vague about remedies. In the case of punishment, perhaps morality says that a punishment must be proportional to the wrong, but offers little precise detail about what punishments would be proportional to specific wrongs. Indeed, as I suggested above, in part because of this indeterminacy, punishment is in general morally problematic without action by legal institutions. An important way in which legislation alters pre-existing moral obligations is therefore by making determinate the appropriate punishments for violations of those obligations. (I address below the related issue of eliminating uncertainty about moral obligations that are in fact determinate.) Legislation can thus make it morally permissible to punish violators. 67

In addition to altering pre-existing moral obligations, a legislative enactment of a criminal prohibition (on conduct that is already morally prohibited) typically results in new reasons for not engaging in the relevant conduct. The examples discussed above are relevant here. For example, the legislative action will often add reasons of fairness and democracy to the pre-existing moral reasons. When reasons are added for engaging in conduct that is already obligatory, let us say that the pre-existing obligations are reinforced . 68 The Moral Impact Theory holds that moral obligations that are reinforced by the actions of legal institutions are among the moral obligations that are legal obligations.

2. The Legally Proper Way

The next refinement of the theory is that legal obligations are not just any moral obligations that are created by the actions of legal institutions. We need to limit the relevant moral obligations to ones that come about in the appropriate way—what I call the legally proper way. 69 We have an intuitive understanding of the legally proper way for a legal system to generate obligations, and we can articulate it theoretically by appealing to what legal systems are for or are supposed to do. Let me explain. Suppose a government persecutes a particular minority group. This persecution may include directives to harm members of that group or to deny them benefits. Such government actions are likely to have the effect on the moral profile of producing an obligation to protect or rescue the minority group, to disobey the directives, to try to change the policy, and so on. It is intuitively clear that an obligation that comes about in this way is not a legal obligation, despite the fact that it is the result of actions of legal institutions.

The example suggests a necessary condition on the legally proper way for legal institutions to change the moral profile. If legal institutional action, by making the moral situation worse, generates obligations to remedy, oppose, or otherwise mitigate the consequences of the action, such obligations to mitigate have not come about in the legally proper way. Call this general way of changing the moral profile paradoxical (because the resulting obligations run in the opposite direction from the standard case). Moral obligations that are produced in the paradoxical way are not legal obligations.

It is important to note that legal institutional action that generates moral obligations in the paradoxical way may also generate other moral obligations that are legal obligations. For example, Proposition 13, the 1978 California ballot initiative that restricted property taxes, made the moral situation worse and may therefore have generated moral obligations to try to repeal it, but it nevertheless generated legal obligations concerning the assessment of property taxes. 70

The necessary condition I have sketched matches our intuitive understanding of the way in which legal systems are supposed to generate obligations, and it is not ad hoc. As I mentioned above, on my view, a legal system, by its nature, is supposed to change the moral situation for the better. This understanding of what legal systems are supposed to do, or what they are for, explains why moral obligations that are generated in the paradoxical way are not legal obligations. The key idea is that, for an institution that, by its nature, is supposed to improve the moral situation, a method that relies on creating reasons to undo what the institution has wrought is a defective way of generating obligations. 71 I have illustrated my suggestion that we can use our understanding of what law and legal systems are supposed to do to explain which ways of generating obligations are legally proper—and therefore which obligations are legal . But I do not have a complete account of the legally proper way; further work is needed. 72

The Moral Impact Theory (version 3): The content of law is that part of the moral profile created by the actions of legal institutions in the legally proper way.

3. What Makes Something a Legal Institution

Because my formulation of the theory uses the term legal institution , I want to conclude this Part by addressing briefly the question of what makes something a legal institution. 73 Although it is not the goal of the Moral Impact Theory to provide a theory of the nature of legal systems and institutions, I will offer a necessary condition. An important part of what it is to be a legal institution is to be part of a legal system, so an account of the nature of legal institutions depends on an account of the nature of legal systems. On my view of law, again, it is essential to legal systems that they are supposed to improve the moral situation. Therefore, a necessary condition on a legal institution is that it be an organization that, by its nature, is supposed to improve the moral situation. 74 (Again, the claim is not that legal institutions always improve our moral situation, but that they are defective to the extent that they do not.) This point explains, for example, the fact that an organization of powerful thugs that controls a community is not a legal system or a legal institution. It is no part of the organization’s nature that it is supposed to improve the moral situation. Scott Shapiro makes a similar argument in Legality . 75

The foregoing is one necessary condition on legal systems and institutions; there are certainly other necessary conditions. It is not my purpose here to develop a complete account—the Moral Impact Theory is consistent with a range of accounts, and others have done important work on this topic. For example, Joseph Raz argues that legal systems are distinguished from other institutionalized systems by their claiming authority to regulate any type of behavior and by their claiming to be supreme. 76 Shapiro argues that Raz’s analysis fails to capture the relevant distinction; he offers, instead, the thesis that a legal system must be self-certifying, i.e., “ free to enforce its own valid rules without first having to establish their validity before some superior official or tribunal (if one should exist).” 77

Finally, at least in mature and stable legal systems, uncertainty about what a legal institution is will not in practice lead to much uncertainty about what the law is. For, in practice, there is a great deal of consensus about which institutions are legal institutions. (In immature or unstable legal systems, where there is uncertainty about what the legal institutions are, the Moral Impact Theory predicts that there will be uncertainty about what the law is.) It’s also worth noting that, as Raz and Shapiro note, it is plausible that the features that distinguish a legal system (or institution) from other systems are a matter of degree. 78 Unsurprisingly, there will be borderline cases.

III. the moral impact theory and legal interpretation

The outline of the theory is now complete. In this Part, I examine the implications of the Moral Impact Theory for legal interpretation. 79 In Section A, I return to the example drawn from Smith to illustrate in greater detail the implications of the idea that legal interpretation involves working out the moral consequence of the relevant facts. In Section B, I look at the way in which the Moral Impact Theory explains the relevance to legal interpretation of factors other than actions of legal institutions, such as canons of construction. Finally, in Section C, I clarify and qualify the idea that legal interpretation may require developing an ambitious moral theory.

A. A Statutory Interpretation Example

Recall that, in Smith , the defendant offered to trade a gun for cocaine. 80 He was convicted of drug trafficking crimes and sentenced under 18 U.S.C. § 924(c)(1), which provides for the imposition of augmented penalties if the defendant “during and in relation to any crime of violence or drug trafficking crime . . . uses . . . a firearm.” The Supreme Court, over a vigorous dissent, held that trading a gun satisfied the statutory requirement and therefore affirmed Smith’s conviction.

The Court’s majority and dissenting opinions both regard the question as whether the statutory language—“uses . . . a firearm”—has the effect of making the specified penalty applicable to one who trades a firearm for drugs. The opinions appeal to diverse considerations in support of their opposing positions: the “ordinary meaning” of the word “use”; 81 dictionary definitions of the word; 82 what people ordinarily mean by words or phrases in particular contexts or how words ordinarily are used; 83 how Congress intended the language to be construed; 84 how the statutory phrase is most reasonably read; 85 whether Congress would have wished its language to cover the situation; 86 whether Congress intended the type of transaction to receive augmented punishment; 87 the purpose of the statute; 88 how the word “used” is employed in the United States Sentencing Guidelines; 89 case law; 90 other provisions in the same statutory scheme; 91 the history of the statute’s modification over time; 92 and the rule of lenity. 93

For all these claims about relevant considerations, the majority and dissenting opinions strikingly lack both an account of why the relied-upon considerations are relevant 94 and an account of how much weight each deserves—or, more generally, of how to adjudicate between the considerations when they point in different directions. These two points are closely related: without an understanding of why considerations are relevant in the first place, it is difficult to know how to reconcile conflicts between them. 95

Recently, two philosophers of language, Stephen Neale and Scott Soames, have (separately) pointed out that the Court’s opinions in Smith are marred by mistakes about language and communication. 96 Most significantly, the Justices seem unaware of the important distinction between the semantic content of a sentence (roughly, what is conventionally encoded in the words) and what a person means or intends to communicate on a particular occasion by uttering the sentence (and might be easily understood by ordinary hearers to so intend). 97 I will use the term communicative content for this latter notion. Soames and Neale share a central point: although the meaning of the word “use” certainly includes trading, Congress, by employing the sentence in question, may well have intended to communicate that the specified penalties cover only the use of a gun as a weapon . 98 Both assume without argument that the law is determined by the communicative content of the statute, not its semantic content. 99

Thus, despite all their sophistication about language, both philosophers are ultimately in the same position as the Court. They point to a plausibly relevant determinant of the content of the law—communicative content—that they favor, but they offer no framework for explaining why it is relevant or why it should trump other putative determinants.

As I now explain, the account of legal interpretation that derives from the Moral Impact Theory supplies what is missing. 100 First, it offers an account of the possible relevance of the diverse candidate factors mentioned by the Court’s opinions, as well as the one favored by the philosophers of language. Second, this account of why factors are relevant yields an account of how potential conflicts between sources are to be resolved.

On the Moral Impact Theory, a statute’s contribution to the content of the law is, roughly, the impact of the fact of the statute’s enactment on the moral profile. In interpreting a statute, therefore, a fact is relevant because it has a bearing on the statute’s impact on the moral profile. A fact might, for example, be relevant because it is a morally relevant aspect of the enactment of the statute (or evidence of such a morally relevant aspect) or because it is a background fact that affects the enactment’s impact on the moral profile. In other words, moral considerations explain why various factors are relevant.

Considerations of democracy and fairness provide explanations of why the various factors mentioned by the Court in Smith are (or would plausibly be thought to be) relevant. For example, the relevance of how Congress intended the language to be construed, whether Congress would have wished its language to cover the situation, how the statutory phrase is most reasonably read, what Congress intended to communicate, and the purpose of the statute are all plausibly explained by democratic considerations. What about dictionary definitions and ordinary usage? Dictionary definitions and ordinary usage are plausibly evidence of how the statutory phrase is most reasonably read or what the legislature would have reasonably been understood to be intending to communicate. And considerations of both democracy and fairness arguably make those factors relevant. Similarly, fairness helps to explain the basis of the rule of lenity and the relevance of decisions of past cases (because of the importance of treating like cases alike). 101

It is worth noting how natural it is to appeal to democracy, fairness, rule of law, and other moral values to provide such explanations. 102 For example, textualists often appeal to democratic values to support the view that the intentions of legislators or framers, to the extent that they are not expressed in the text, are not relevant to statutory or constitutional interpretation. 103 And, similarly, intentionalists argue that democracy supports their view that what matters is the legislators’ intentions. 104

The Moral Impact Theory offers not just an account of why various factors are relevant, but, more importantly, an account of how conflicts between relevant factors are to be resolved. On the Moral Impact Theory, the contribution of a statute to the content of the law will depend on the on-balance best resolution of conflicts between moral considerations. Morality provides answers to questions of how conflicts between competing considerations are to be resolved, for example, by determining how much weight competing considerations deserve. In this respect, it differs from a miscellaneous collection of considerations. If one asks what action is supported by, say, considerations of health, efficiency, and aesthetics, then, assuming that there is any conflict between the specified considerations, the question is incomplete because one has not specified how the considerations are to be weighed against each other. The Moral Impact Theory holds not merely that we are to take into account moral considerations, but also that we are to give to each consideration the relevance that morality in fact gives it. (I do not mean to suggest that morality always provides a unique answer to every practical question. There may be much indeterminacy.) Competing democratic considerations may, for example, have different implications for which aspects of the statute are relevant. Or considerations of democracy and considerations of fairness might point in different directions in a particular case. According to the Moral Impact Theory, the correct resolution of such conflicts depends on what the relevant moral values, on balance, support.

Again, we can illustrate with Smith . Here is a useful, if somewhat simplified, way of understanding the fundamental disagreement between the majority and the dissent. The majority believes, roughly speaking, that the interpretation of the statutory provision is determined by its semantic content. The dissent, though it does not understand the distinction between semantic content and communicative content, is groping for the position that the interpretation of the statute is determined by what Congress intended to communicate or perhaps by what one who had uttered the words of the statute would typically have intended. 105 As noted above, these positions, by themselves, offer no way forward. One side insists that the words of the statute, as written, straightforwardly cover using a gun to trade, and the other side argues that Congress probably used the words intending to communicate that using a gun as a weapon subjects a defendant to the specified sentence.

According to the Moral Impact Theory, in order to adjudicate between these positions, we need to develop the understandings of democracy (or other moral considerations) that would support these different positions and then determine which is the better understanding of democracy. One democratic consideration might support the idea that what matters is not the actual intentions of particular legislators, but only what is specifically encoded in the language that is voted on by the legislature. A different aspect of democracy might support giving decisive weight to the legislature’s actual communicative intentions. Because, according to the Moral Impact Theory, the correct resolution of the conflict depends on the best understanding of all the relevant considerations, resolving the conflict requires developing an account of democracy. 106

B. The Relevance to Statutory Interpretation of Factors Other than Actions of Legal Institutions

I have mostly emphasized the way in which the Moral Impact Theory explains the relevance of actions of legal institutions. It is also worth noting that the Moral Impact Theory offers an approach to explaining the relevance of other factors to the content of the law. Various facts and circumstances can be relevant to the content of the law because they affect the way in which actions of legal institutions alter the moral profile. Customs, settled expectations or practices in a particular industry, actions of important non-legal actors, influential misunderstandings of statutes, and new technological developments can have moral implications and therefore can affect what is morally required as a result of a particular statute (or other legal institutional action). Customs, expectations, and the like may affect what fairness requires, which solution to a problem is most likely to be adopted by others, or how the public understands the problem a statute addresses. This kind of account can be used to analyze the relevance of diverse factors to the law. To take one example, on such an account, the relevance of foreign law to constitutional law would be determined by asking what bearing foreign law has on the Constitution’s impact on the moral profile. Obviously, this schematic suggestion does not solve the problem, but it offers a framework for thinking about it.

The Supreme Court’s famous decision in Holy Trinity Church v. United States 107 might be well understood as involving the relevance of background factors to the moral impact of legislation. A church contracted with a man who was not a U.S. citizen to bring him to the United States to serve as rector. The statute at issue stated that it was unlawful to make a contract to bring a foreigner to the United States “to perform labor or service of any kind in the United States.” Although the Court conceded that the contract fell “within the letter” of the statutory provision, 108 it decided that the contract was not in fact prohibited.

The Court put great weight on the ground that “no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people.” 109 The Court characterized this factor as evidence of Congress’s intentions. 110 On the Moral Impact Theory, Congress’s intentions might be relevant for democratic reasons. But in fact the religious values to which the Court appeals would be poor evidence of Congress’s actual intentions, and, moreover, there are important democratic reasons why congressional intentions that are not made publicly available should not affect our obligations.

The Moral Impact Theory could explain, instead, that the Court took the importance of religious values to affect the impact of the statute on the moral profile. Roughly, the idea would be that the Court took there to be important moral reasons why religious organizations should not be restricted in the activity, central to their mission, of hiring clergy. These reasons prevented the statute from affecting the moral profile in the way that it otherwise would have. This understanding is of course consistent with the fact that a different, more specific statute could override those reasons.

A less dated example might make the point more clearly. Consider the canons of statutory construction that ambiguities are to be resolved in favor of Native Americans and veterans. 111 According to the Moral Impact Theory, these canons are ways of taking into account the United States’s moral debts to Native Americans and veterans, respectively. 112 Any statute acts against the background of moral reasons flowing from those debts. Those reasons may be sufficient to nudge the impact of a statute on the moral profile. (Understanding the canons in question as taking into account pre-existing moral reasons might seem obvious. But most theories of law—notably, theories that presuppose the Standard Picture—either have difficulty explaining how pre-existing moral reasons could have such relevance to the content of the law or have to regard the canons as instructing courts how to make law, rather than how to work out a statute's contribution to the content of the law.)

Other canons and interpretive doctrines can be understood in similar ways. The rule of lenity and the doctrine of avoiding absurd results are obvious examples. The Moral Impact Theory also understands linguistic or textual canons as rules of thumb for working out the moral consequences of statutes. For example, considerations of democracy and fairness militate in favor of a statute’s contribution being publicly accessible. Many of the linguistic canons can be understood as implementing these moral considerations by tending to push a statute’s contribution toward the way in which people would ordinarily understand the statute. Examples include: expresio unius est exclusio alterius ; ejusdem generis ; and noscitur a sociis .

I should add that I do not mean to endorse the Court’s decision in Holy Trinity or particular canons of construction. My point is just to explicate the resources of the Moral Impact Theory for understanding the relevance of diverse factors to the content of the law.

C. Clarification of the Need for an Ambitious Moral Theory

I want to close this Part by clarifying and qualifying the idea that legal interpretation may require working out an account of what the relevant moral values, on balance, support. First, obviously, the Moral Impact Theory does not convert statutory interpretation into an algorithm—a mechanical procedure. 113 Working out the best account of the relevant moral considerations can be a complex task requiring difficult judgments. What the Moral Impact Theory does provide is an understanding of what makes it the case that the statute is to be interpreted in a particular way, given that different factors point in different directions. Specifically, the correct interpretation is correct because it specifies the impact of the statute on the moral profile. Thus, the Moral Impact Theory clarifies what the questions are, so that we are not reduced to listing factors that point in different directions. According to the Moral Impact Theory, the master question is what is morally required in light of the enactment of the statute, not what the statute’s linguistic content is. With respect to any specific factor that might be thought relevant, the question is what relevance moral considerations give to that factor, as opposed to other factors.

Second, if it is conceded that, say, a particular democratic consideration can help to explain whether a particular aspect of a statute is relevant, there is a powerful argument that what ultimately matters is what all the relevant values, on balance, require. To begin with, it is very difficult to see how it could be that a democratic consideration is relevant to a statutory interpretation question, but that in order to resolve that question, we don’t need an account of what democratic values, on the best understanding, require. If it matters that a particular aspect of democracy favors one interpretation of a statute, how could it not matter that, on balance, democratic values favor a different interpretation? Similarly, if democratic values support a particular approach to interpreting statutes, how could it not be relevant that once we take into account fairness as well as democracy, a different approach is favored? In short, if moral considerations are relevant, then, to the extent that they conflict, it is difficult to see what could justify a stopping place short of what moral values, on balance, support. 114 This argument suggests that, if one denies the need for an account of what morality requires with respect to statutory interpretation, one must deny that, for instance, democratic considerations have any bearing on the proper approach to statutory interpretation.

Third, although the previous point suggests that an ambitious moral account might sometimes be needed because the relevant moral considerations conflict, I don’t mean to suggest that whenever we have to work out what the law is, we have to work out a complete account of all the relevant moral considerations. In the run of cases, all of the plausible accounts of democracy, fairness, and so on favor the same outcome. Therefore, in order to resolve such cases, it is not necessary to turn to the underlying moral considerations. That is why most cases are easy cases. Even in difficult cases, it is only necessary to eliminate candidate accounts to the extent that they favor a different outcome in the case at hand.

Fourth, judges and other agents faced with an actual legal case operate under a range of practical and ethical constraints apart from what the content of the law dictates. For example, as in many areas of cognitive endeavor, because of shortages of time, memory, and so on, a second-best solution might yield better results. That is, judges with limited time and capacities might well do better to follow relatively simple heuristics, rather than trying to work out explicitly the impact on the moral profile of all of the relevant actions. I want to set aside the important topic of how, all things considered, judges should decide cases. (Because of the kinds of constraints just mentioned, I take it that the content of the law is a very important, though by no means the only, determinant of how judges should decide cases.) The Moral Impact Theory is, rather, a theory of what determines the content of the law. I am using the examples of Smith and Holy Trinity Church to explicate the theory’s implications for statutory interpretation, i.e., working out a statute’s contribution to the content of the law, rather than its more indirect implications for how judges should ultimately decide cases.

Fifth, it is a mistake to assume that one must produce a rigorous theoretical solution to a problem in order reliably to generate accurate answers. For example, what to believe—how to form and update one’s beliefs about the world—is widely believed to be a massively holistic problem. When deciding what to believe on a particular issue, there is in general no way in advance to rule out the possible relevance of anything that you know. But you would be stopped in your tracks if, on every issue that arises, you had to take into account everything that you already know before deciding what to believe. How to hive off a manageable set of relevant considerations is a deep problem in philosophy of mind and cognitive science. 115 Yet, in practice, humans are remarkably good at forming and updating their beliefs about the world quickly and reliably, without considering everything they know. The point is that people can be skilled in practice at producing answers to a problem, despite the fact that producing a full, rigorous derivation of the answers would be unmanageably difficult. (Moreover, we can be skilled at producing answers without knowing how we do it.) It is therefore a mistake to assume that, because the Moral Impact Theory holds that the content of the law depends on what the moral considerations, on balance, support, the Moral Impact Theory makes impossibly difficult the everyday task of working out what the law is. The skills of reading statutes and cases that lawyers learn in law school may be generally reliable ways of working out the impact of statutes and judicial decisions on the moral profile, typically without the need to consider moral considerations explicitly.

Finally, I do not mean to claim that there will always be a single best resolution of every conflict between relevant factors. The Moral Impact Theory has the consequence that, if there are competing candidates for a statute’s contribution and the relevant considerations do not favor one candidate over the others, then the law is indeterminate between the competing candidates.

IV. objections

In this Part, I address two possible objections, one concerning the possibility of morally arbitrary and morally bad legal norms and one concerning the law’s ability to settle disagreement.

A. Arbitrary and Evil Legal Norms

First, it might be thought that because my view holds that legal obligations are certain moral obligations, it cannot account for morally arbitrary and morally bad legal rules.

The worry about morally arbitrary legal rules is easy to address. The key point is that we need to distinguish between what morality requires ex ante—before the legal institutions act—and what it requires ex post—after the relevant actions of the legal institutions. Of course, it is not morally required ex ante to file one’s tax return by April 15 as opposed to April 1 or any other day. But it may well be morally required to do so once a particular scheme with its particular arbitrary choices has been implemented, others are participating in it, and so forth.

With respect to morally bad legal norms, the same kinds of considerations are part of the answer. As emphasized above, as a result of legal institutional action, it can become morally obligatory to participate in a scheme that is seriously morally flawed or to follow a morally flawed rule. Although these sorts of considerations can explain much morally flawed law, they cannot explain truly evil legal norms. Because my theory holds that the law is a certain part of the moral profile, my theory has the consequence that the law can never include truly evil norms. Such norms can never be part of the moral profile.

Some readers will think that this consequence of my theory is a mark in the theory’s favor. But others will think that this consequence is a mark against the theory because they think it is obvious that there are truly evil legal norms.

For those in this latter camp, I want to make two points. First, recall the distinction between the two senses of “a law.” 116 I emphasize that my theory does not deny that there are evil laws, where “laws” is used in the sense of statutes or other authoritative legal texts . It should be uncontroversial that there are bad statutes, ordinances, regulations, and so on. The issue is the much more theoretical one of what impact on the content of the law such statutes have—in particular, whether such statutes give rise to evil legal norms. So the Moral Impact Theory accepts that there is a clear sense in which there are evil laws. 117

Second, I want to make a fairly banal methodological point. Ultimately, the way to determine whether there can be truly evil legal norms is not to consult English usage or even lawyers’ intuitions. True theories often have counterintuitive consequences—a great deal of what we now think about the world and about human beings would once have been thought to be absurd. We have to evaluate how successful theories are on a wide range of criteria, and once we have decided in this holistic way which theory is most successful, we then have to accept whatever counterintuitive consequences that theory has (at least until a better theory comes along). 118

B. Moral Disagreement

Another possible objection is that the role that the Moral Impact Theory gives to moral reasoning is incompatible with a fundamental function of law—that of settling disagreements and eliminating uncertainty. Human beings disagree frequently about practical matters, about what is to be done. Law is supposed to provide a mechanism for settling these disagreements. 119 If the Standard Picture were correct, the objection goes, then we would be able to see how law could serve this settlement function. But, the objection continues, working out the moral profile will typically be highly controversial. Therefore, if figuring out what the law is involved working out the moral profile, then law would not serve its settlement function.

First, it is controversial what the functions of law are, or even whether law has functions, but let us grant for purposes of argument that settling disagreements is an important function of law. It is at least as plausible, however, that law also has other important functions, such as those of ensuring that government coercion is used only in accordance with past political decisions, 120 acting for the public good, and improving our moral situation. 121 Thus, in order to evaluate how well the law would do at fulfilling its plausible functions (if a particular theory of law were true), we need to consider more than just the settlement function. For example, very roughly, if the Moral Impact Theory, as opposed to the Standard Picture, is true, then the law will do better at generating norms that are supported by moral considerations and less well at yielding certainty. I have argued elsewhere that, in other respects, the Moral Impact Theory suggests that the law is defective less often than the Standard Picture suggests. For example, if the Moral Impact Theory is true, then we will not find that the law regularly requires people to do morally impermissible things, such as to punish people who do not deserve it. 122

At any rate, how well law would perform various of its functions if a particular theory of law were true has only a highly indirect bearing on whether that theory of law is true. The law is surely less than perfect at fulfilling some of its functions. In particular, we know that statutes and appellate decisions often fail to end controversy and even spawn further litigation. That a theory of law predicts that the law would be highly effective at performing the settlement function does not tell us much about whether the theory is true. On the other hand, it would certainly be telling if a theory of law predicted that law would generally be unable to perform one of its functions.

Second, however, it is not true that, on the Moral Impact Theory, the law would not be able to serve the function of resolving moral disagreement. To begin with, a very important part of the way in which a legal system settles disagreement is by having a mechanism for generating specific orders (directed at particular individuals) that are backed up with force. We know from our own legal system that the content of the law is often highly controversial. As just noted, the enactment of a statute does not simply end disagreement. Specific orders directed at individuals are required in order to end disagreement in a peaceful way. As argued above, there are powerful moral reasons to give binding force to such specific orders of a government that has de facto authority. The Moral Impact Theory thus encounters no difficulty accounting for this central way of settling disagreement.

Moreover, it is false that the dependence of law on morality entails that the law cannot help to resolve disagreement and increase certainty about what is to be done. The enactment of a statute or other actions by legal institutions often change the circumstances in ways that make it much easier to determine what is obligatory.

There is a spectrum of different kinds of cases. At one end of the spectrum, there are highly controversial issues such as the permissibility of abortion or whether we should have a flat tax or a progressive tax. Even after the legal system takes action, for example by the legislature’s enacting legislation, controversy is likely to continue. Even in such cases, however, the legislature’s action may well change the circumstances in a way that makes it less controversial what is required ex post. Many who think that a flat tax would be more just than a progressive tax ex ante will recognize that once the legislature has acted, participation in the progressive tax scheme may become morally obligatory. Moreover, as noted above, the fact that action by the legal system often does not end controversy is exactly what we find in our legal system, so the fact that the Moral Impact Theory predicts such continuing controversy is actually a mark in its favor. Again, the way in which the legal system ends controversy when necessary is not to make more law but to direct a particularized order at a specific person.

It is important to recognize, however, that most issues are not like this. At the opposite end of the spectrum from issues on which controversy is unlikely to be settled even after extensive legislation and litigation, there are issues on which action by legal institutions can easily make the relevant part of the moral profile uncontroversial. Before the legislature enacts a statute specifying that cars must drive on the right side of the road, it is difficult to determine which side one should drive on, and there may well be no right answer. Once the legislature makes the right side salient and provides all kinds of mechanisms for enforcement, it is obvious that one should drive on that side.

Between the two ends of the spectrum are cases in which legal institutions can take action that clarifies what is morally required, even if it does not render it utterly uncontroversial. As the examples in Part II illustrated, legal institutions have a range of tools for making it more determinate and certain what morality requires. 123 Consequently, it is often easier to work out how the legal institutions have affected the moral profile than to work out the ex antecontent of morality. Moreover, ordinary citizens can consult experts—also known as lawyers—in working out the impact of the legal institutions on the moral profile. As suggested above, legal interpretation skills, such as those of reading statutes and cases, may be reliable methods of working out the impact of actions of legal institutions on the moral profile—typically without the need to consider moral considerations explicitly. In sum, the Moral Impact Theory is consistent with law’s having the ability to help settle disagreement about what is to be done.

According to the Moral Impact Theory, the content of the law is that part of the moral profile that obtains in virtue of certain actions of legal institutions. In conclusion, it is worth emphasizing how simple and natural the theory is. On the face of it, law-creating institutions try to create binding obligations. The Moral Impact Theory takes this datum seriously, maintaining that legal obligations are the genuine obligations that the legal institutions succeed in creating. As noted in the Introduction, the Moral Impact Theory also makes it easier to understand our abiding concern with law than do the two dominant views of law, the Standard Picture and the Dworkinian view.

I hope that I have also given a feel for the point of legal institutions’ changing the moral profile, thereby creating legal norms. By changing the relevant circumstances, legal institutions can improve the moral situation in a variety of ways—for example by simplifying, clarifying, and making determinate our obligations. Consider again the example of the tax scheme. There is a pre-existing problem, and, consequently, important moral reasons to help to solve it. But those pre-existing moral reasons do not determinately and clearly support one particular solution. The legal system is able to channel the pre-existing moral reasons toward a particular solution. The legal system’s action of publishing a particular scheme, setting up implementing mechanisms, and making others’ participation likely changes the morally relevant circumstances.

My theory contrasts sharply with the Standard Picture, on which legal institutions make pronouncements, thereby automatically generating legal norms that correspond to the contents of the pronouncements. On the Moral Impact Theory, the legislative enactment of a statute may often have roughly the net effect of adding to the content of the law a norm that is more or less captured by the linguistic content of the legislation. But, when it does so, the explanation will be that the enactment of the statute changed the relevant circumstances, thus changing what people are morally required or permitted to do—not that the legal norm obtains simply because it was authoritatively pronounced.

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I clarify what I mean by moral obligations infra Subsection II.A.1.

In earlier work on the nature of law, I develop a variety of arguments that support a type of position along the lines of the Moral Impact Theory. This note provides references to that work for interested readers. The earlier work falls into three strands. The most important articles in the first strand are Mark Greenberg, How Facts Make Law , 10 Legal Theory 157 (2004), corrected version reprinted in Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin 225 (Scott Hershovitz ed., 2006) [hereinafter Greenberg, How Facts Make Law ]; Mark Greenberg, On Practices and the Law , 12 Legal Theory 113 (2006); and Mark Greenberg, Hartian Positivism and Normative Facts: How Facts Make Law II , in Exploring Law’s Empire, supra [hereinafter Greenberg, How Facts Make Law II ]. For additional work in this vein, see Mark Greenberg, How Facts Make Law and the Nature of Moral Facts , 40 Direito, Estado e Sociedade 165 (2012); Mark Greenberg, Reasons Without Values? , in 2 Social, Political, & Legal Philosophy 133 (Enrique Villanueva ed., 2007); and Mark Greenberg, Explaining Legal Facts (UCLA Sch. of Law, Working Paper No. 08-19, 2007), http://ssrn.com/abstract=1139135 . These articles focus on the relation between the determinants of law and the content of the law. As they explain, it is fundamental to our ordinary understanding of the law that the determinants must provide reasons for the obtaining of the legal facts (in a sense of “reason” that I explicate). I argue that non-normative facts cannot by themselves determine the content of the law because they cannot explain their own relevance to the content of the law. Normative facts are the best candidates for what can provide the necessary reasons.

The second strand comprises Mark Greenberg, The Standard Picture and Its Discontents , in 1 Oxford Studies in Philosophy of Law 39 (Leslie Green & Brian Leiter eds., 2011) [hereinafter Greenberg, The Standard Picture ], and a work-in-progress, Mark Greenberg, Beyond the Standard Picture (unpublished manuscript) (on file with author). A central idea here, very roughly, is that a legal system is defective to the extent that it produces legal obligations that are not all-things-considered binding. As I argue, this idea points in the direction of a view on which legal obligations are a subset of moral obligations, and legal institutions create and modify legal obligations by modifying the morally relevant facts.

In The Standard Picture and Its Discontents , I sketched the outlines of such a position in general terms. Greenberg, The Standard Picture , supra , at 57-60, 96-102. The version sketched there, which I called the Dependence View , was incomplete because, among other things, it took a position only on what constitutes the content of the law when the legal system operates as it is supposed to. The Moral Impact Theory is a way of developing the Dependence View according to which the content of the law is constituted in the same way when the legal system operates as it is supposed to and when it does not. See id . at 57-58. (There are a variety of other ways of developing the Dependence View; one possibility, for example, is to hold that when the legal system does not operate as it is supposed to, the legal obligations have the content of the moral obligations that would have been created had the legal system operated as it is supposed to.)

The third strand comprises Mark Greenberg, Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication , in Philosophical Foundations of Language in the Law 217 (Andrei Marmor & Scott Soames eds., 2011) [hereinafter Greenberg, Legislation as Communication? ]. In this article, I argue that considerations from the study of language and communication are inadequate to explain the relevance of, and to adjudicate between, different candidates for a statute’s contribution to the content of the law. Moral considerations are a promising candidate to provide what is missing.

508 U.S. 223 (1993). In Section III.A, I use this example to explicate my theory’s account of statutory interpretation in greater detail.

I do not mean to suggest that the account is standardly followed in practice. In fact, I think that the account does not well describe much of the actual practice of statutory interpretation. See Greenberg, The Standard Picture , supra note 2, at 72-81. Rather, I mean that the account is a standard way of describing the practice. On the term linguistic content , see infra notes 18-19 and accompanying text. We will see that some linguistic contents are constituted by the contents of mental states, for example the contents of speakers’ intentions.

For discussion of the opinions in Smith , see infra Section III.A.

See infra notes 38-39, 97-99 and accompanying text.

On this distinction, see infra note 97 and accompanying text.

As discussed below, Justice Scalia’s dissenting opinion may have been groping for this idea, though Scalia was not able to put it in these terms because he lacked the distinction between semantic content and communicative content. See infra note 105 and accompanying text.

I have argued that fit and justification are best understood as two dimensions of justification. See infra notes 29, 34 and accompanying text.

See infra text following note 32; infra note 34.

For elaboration of the idea that it can be part of the nature of law that legal systems are supposed to play a certain role, though actual legal systems often fail to do so, see Greenberg, The Standard Picture , supra note 2, at 86-89.

Strictly speaking, the content of the law is not, say, the obligation to take a particular action, but that one is obligated to take the relevant action.

On different senses of the term law , see infra Subsection II.A.3.

I say “at least many,” rather than “all,” because some natural law theorists would maintain that some legal norms are simply fundamental moral norms and that those moral norms are among the ultimate facts of the universe. Thanks to Seana Shiffrin for pressing me to clarify this point.

There is a technical issue regarding whether the determinants of legal content are facts, events, states of affairs, etc. I will generally take them to be facts, but nothing in the argument depends on this assumption.

On constitutive explanation, see Mark Greenberg, A New Map of Theories of Mental Content: Constitutive Accounts and Normative Theories , 15 Phil. Issues 299 (2005).

The point of the qualification “primarily” is that the Standard Picture allows that there may be some divergence from its core model. There may be peripheral ways in which law can be determined other than by the linguistic content of authoritative pronouncements, and the Standard Picture also must supplement its core model with an account of how the content of the law as a whole is derived from the individual legal norms that are constituted by individual authoritative pronouncements. There needs to be, for example, a way of resolving conflicts between such individual norms, and the Standard Picture may even allow some more radical departures, such as filtering out or modifying absurd or immoral legal norms. For elaboration and discussion of what this idea of primariness amounts to, see Greenberg, The Standard Picture , supra note 2, at 51-54. For a more nuanced account of the Standard Picture generally, see id. at 40-55.

Language enables us reliably and systematically to convey information to others. The information thus conveyed is linguistic content. There are a variety of aspects of linguistic meaning, including semantic content and speaker’s meaning. The important point for our purposes is that linguistic contents can be systematically derived through reliable mechanisms, mechanisms that are much studied in philosophy of language and linguistics. Contrast meaning in this sense with a loose nonlinguistic sense of the word. In the latter sense, meaning is roughly equivalent to significance, upshot, or consequence. For example, one might ask the meaning of a recent political development or of an embarrassing situation. Meaning in this sense is not a kind of linguistic content at all. See Greenberg, The Standard Picture , supra note 2, at 47-48. Meaning in the sense of linguistic content also is to be distinguished from legal meaning , where the legal meaning of, say, a statutory text is simply its contribution to the content of the law. If we use meaning in the sense of legal meaning, it is trivial to say that a statute’s contribution to the law is its meaning. In these terms, the Standard Picture holds, roughly, that an authoritative legal text’s linguistic content constitutes its legal meaning. For discussion of many types of linguistic and mental content and their relation to the content of the law, see Greenberg, Legislation as Communication? , supra note 2.

It is also plausible that many lawyers, judges, and law professors (other than legal philosophers) take the Standard Picture for granted to the extent that they talk and think about the theoretical issue of the relation between the determinants and the content of the law. Certainly, practitioners and scholars often say that the goal of legal interpretation is to ascertain the “meaning” of a legal text, such as a statute. (The majority and dissenting opinions in Smith are an example.) It might be suggested, however, that such talk of the “meaning” of a statute should be understood to refer to legal meaning—the statute’s contribution to the content of the law—not to its linguistic content. If “meaning” refers to legal meaning, however, then it is vacuous to say that in working out a statute’s contribution to the law, we should seek the statute’s meaning. More likely, many have not clearly recognized the distinction between a statute’s linguistic content and a statute’s contribution to the content of the law. And failing to make this distinction is, itself, a way of presupposing the Standard Picture. With respect to the failure to make the distinction, Mitchell Berman and Kevin Toh point out that “the relevant ambiguity [between the linguistic content of the text and the content of the law] is close to ubiquitous in originalist writing,” and “in nonoriginalist writing too.” Mitchell N. Berman & Kevin Toh, On What Distinguishes New Originalism from Old: A Jurisprudential Take , 82 Fordham L. Rev. 545, 547 & n.11 (2013). I should emphasize that I am not suggesting that the actual practice of legal interpretation reflects the Standard Picture. See Greenberg, The Standard Picture , supra note 2, at 72-81. My point is, rather, that when lawyers, judges, and law professors describe what they are doing, many seem to assume the Standard Picture.

Where does the American Legal Realist movement fit in? Legal realism was an important movement, but not really a participant in the debate over what determines the content of the law; one main strand of realism largely took for granted the central positivist thesis. To simplify greatly, legal realists accept the positivist understanding of what determines the content of the law, but they take a much more pessimistic (or perhaps realistic) view of the extent to which those sources of law are capable of yielding determinate legal norms. See Greenberg, The Standard Picture , supra note 2, at 65 n.31; Brian Leiter, Legal Realism and Legal Positivism Reconsidered , 111 Ethics 278 (2001). For discussion of the legal realists’ indeterminacy thesis and Dworkin’s theory, see Mark Greenberg, Implications of Indeterminacy: Naturalism in Epistemology and the Philosophy of Law II , 31 L aw & Phil. 619, 629-38 (2012). Others might have taken the conclusion that the content of the law is substantially indeterminate to be a reductio of the positivist premises, but the legal realists embraced indeterminacy. See Mark Greenberg, Naturalism in Epistemology and the Philosophy of Law , 30 Law & Phil . 419, 441, 447 (2011).

Legal positivism is not monolithic; several characteristic positivist theses can be distinguished. See, e.g. , Joseph Raz, The Authority of Law 37-52 (1979); Jules Coleman, Negative and Positive Positivism , 11 J. L egal Stud. 139 (1982).

On this problem, see Greenberg, How Facts Make Law , supra note 2; Mark D. Greenberg & Harry Litman, The Meaning of Original Meaning , 86 Geo. L.J. 568, 613-17 (1998). See also Greenberg, The Standard Picture , supra note 2.

I argue elsewhere that H.L.A. Hart’s version of legal positivism, the most influential position in contemporary philosophy of law, assumes the Standard Picture. See Greenberg, The Standard Picture , supra note 2, at 54-55, 60-61, 69. I also provide other evidence that the Standard Picture is taken for granted by many philosophers of law, including natural law or anti-positivist theorists. See id . at 60-72. John Finnis, for example, seems to accept the Standard Picture, holding that the content of the law is the content of authoritative pronouncements. He then goes on to claim that such internally valid law is not legally authoritative “in the focal sense” unless it is morally authoritative. John Finnis, Natural Law and Natural Rights 27 (1980). For a legal positivist position that rejects the Standard Picture, see Scott J. Shapiro, Legality (2011). As he has explained in personal communication, Shapiro holds that the content of the law is determined by the content of certain plans, and he holds that the content of the relevant plans is not constituted by the linguistic content of the planning texts (or the contents of the planners’ intentions). One reason for this is the role of “meta-interpretation” in constituting the content of the plans. See id. at 331-87.

See Greenberg, The Standard Picture , supra note 2, at 60-72.

See id. at 62-66. I do not mean to endorse the position that the only anti-positivist positions consistent with the Standard Picture are obviously false. See id. at 65 n.32. My goal is rather to explain why one who sees the law through the lens of the Standard Picture will tend to find it difficult to see why anti-positivism would be at all attractive and would entirely miss the possibility of anti-positivist positions such as Dworkin’s or my own.

See Greenberg, The Standard Picture , supra note 2, at 61-62 & nn.22-25.

Indeed, I have argued elsewhere that Dworkin’s view has been widely misunderstood because legal theorists have taken for granted that the Standard Picture is common ground. They have therefore wrongly taken Dworkin’s view to be a perverse way of developing the Standard Picture. In particular, they have taken Dworkinian interpretation to be a way of working out the linguistic content of the legal texts. See id. at 64-65.

Dworkin sometimes formulates his theory to include in the content of the law not just the principles but also propositions that follow from them. He does not explicate the relevant notion of “following from,” but presumably the idea is that the principles imply more specific propositions. For example, the principle that no one can benefit from his or her own wrong implies the proposition that one who murders a testator cannot inherit under the will. See Ronald Dworkin, Law’s Empire 15-20 (1986). The qualification about propositions that follow from the principles does not affect the points I make in the text, and I will omit it for simplicity.

Dworkin’s flagship statement of his view is Law’s Empire (1986). And many of the ideas were first developed in Taking Rights Seriously (1977) and A Matter of Principle (1985). Near the end of Justice for Hedgehogs (2011), however, Dworkin briefly suggests that he now holds a very different view. See Ronald Dworkin, Justice for Hedgehogs 405-09 (2011). The discussion is highly compressed, but one reading is that Dworkin’s new position is that the content of the law is that part of the moral profile that is created by the actions of legal institutions and that the courts are morally obligated to enforce. In other words, on this reading, the new position is a version of the Moral Impact Theory that restricts legal rights and obligations to those that should be enforced by courts. Another reading, however, is that the new position is simply that the content of the law is whatever the courts are morally obligated to enforce: “Legal rights are those that people are entitled to enforce on demand, without further legislative intervention, in adjudicative institutions that direct the executive power of sheriff or police.” Id. at 406. This latter position seems to be the view that Dworkin adopts in his posthumous article, Ronald Dworkin, A New Philosophy for International Law , 41 Phil. & Pub. Aff. 2, 12 (2013). A serious problem with both positions is that they rule out in principle the possibility of legal obligations that the courts and similar institutions—because of, e.g., their institutional limitations, their relations with other branches of government, and the like—should not enforce. For example, it is a familiar idea that the President and Congress may have legal duties that the courts should not enforce. For a powerful argument that constitutional law goes well beyond what the courts should enforce, see Lawrence Gene Sager’s classic article, Fair Measure: The Legal Status of Underenforced Constitutional Norms , 91 Harv. L. Rev. 1212 (1978). For Dworkin’s response, which seems to assume that his own account is correct, see Dworkin, Justice for Hedgehogs , supra , at 412-13. Another problem with the appeal to what courts should enforce is that an account of law should help us to explain why courts should enforce some rights and not others; we therefore cannot appeal to what courts should enforce in order to explain what is law.

In personal conversations, Dworkin acknowledged the shift in his views. In the text, when I refer to Dworkin’s view, I mean the well-known view expounded in Law’s Empire , not the view Dworkin briefly suggests in his very late work.

See Dworkin, Law’s Empire, supra note 28, at 45-275, esp. 284-86; Ronald Dworkin , Taking Rights Seriously 81-130 (1977). I have argued that fit is best understood as one aspect of justification. See Greenberg, How Facts Make Law , supra note 2, at 263 n.47. Otherwise, Dworkin’s account relies on two unrelated dimensions, one non-normative and the other normative, and has no way of balancing them against each other. Perhaps because of this problem, Dworkin often presented the view as holding that the law is the morally best principle that meets some threshold level of fit. This version of the view is also problematic, both because it has no principled way of determining what level of fit is enough and because it gives such a large role to moral merit in determining the content of the law. See infra note 34.

The relevant notion of moral justification cannot be the ordinary one. On the ordinary notion, for an action to be morally justified is for it to be supported or required by the balance of reasons. Many of the actions taken by legal institutions are not supported or required by the balance of reasons. Therefore, when Dworkin seeks the principles that best justify all the past practices of a legal system, he is seeking principles that best justify actions that are not in fact morally justified in the ordinary sense. Because the practices are often not morally justified, the principles that best justify them will not in general be true moral principles. Roughly, Dworkin’s idea is that in trying to find the principles that best justify the relevant practices, there is a trade-off between increasing the degree of fit and improving the moral merit of the principles. I think that there are serious difficulties with how to understand the relevant notion of moral justification, but this is a topic I cannot address here.

One caveat about Figure 1: I do not mean to take a position on the idea of principles that morally justify all legal actions. As noted supra note 29, I think that there are serious difficulties with the relevant notion of moral justification.

If Dworkin had believed that the set of principles that best justifies all of the practices of a legal system coincides with what is morally required in light of the legal practices, it would have been extremely strange for him not to have said so. Moreover, in that case, it would be unclear what the point would be of introducing his distinctive account of legal interpretation with its unusual notion of the principles that best justify the practices. See supra note 29. He could simply have taken the straightforward view of the Moral Impact Theory—that legal obligations are the moral obligations that come about as a result of the actions of legal institutions.

See, e.g. , Dworkin , Law’s Empire , supra note 28, at 262.

As discussed supra note 17, once the linguistic content of the legal texts has been extracted, yielding legal norms, the Standard Picture does allow a secondary role for morality in, for example, filtering or even filling gaps in the legal norms.

See Dworkin, Law’s Empire , supra note 28, at 284-85, 387-88; Dworkin, Taking Rights Seriously, supra note 29, at 340-42. I have argued that, contrary to the way Dworkin often presented the view, the idea of a threshold of fit beyond which substantive moral considerations take over should be regarded as merely a heuristic or expository device. See Greenberg, How Facts Make Law , supra note 2, at 263 n.47. On what I take to be the better view, finding the principles that best justify the practices involves a trade-off between fit and justification. See supra note 29. This understanding would somewhat mitigate the directness of Dworkin’s reliance on the problematic idea that a principle can be law because it is morally good. But, as pointed out in the text above, it is still the case that a principle’s moral merit counts in favor of its being part of the law. And when two candidate principles fit the practices about equally well, moral goodness is decisive.

Dworkin, Law’s Empire , supra note 28, at 379.

I contrasted the three accounts of statutory interpretation in the Introduction. In Part III, I illustrate the implications of the Moral Impact Theory for legal interpretation in more detail.

In this Essay, my goal is to offer a theory of law—an explanation of how the determinants make the content of the law what it is. I contrast my theory’s account of statutory interpretation with the accounts yielded by the Standard Picture and Dworkin’s theory because those are the dominant theories of law. There are, of course, many other accounts of statutory interpretation, but most lack a theory of law, and I therefore don’t consider them. To take just one example, Justice Stephen Breyer’s account of statutory and constitutional interpretation advises us to take a variety of factors into account. See Stephen Breyer , Active Liberty (2006). But he does not offer a theory of law according to which these factors have the corresponding role in determining the content of the law. That is, he does not argue that we should give a particular consideration a certain relevance in interpreting a statute because that consideration in fact has that relevance in determining the content of the law.

See Shapiro , supra note 23, at 185-88; see also Joseph Raz, Practical Reason and Norms 171-77 (1975).

See Greenberg, Legislation as Communication? , supra note 2, at 230-33, 241-50.

See id. at 222-26, 229-30; Greenberg, The Standard Picture , supra note 2, at 42-55, 63-66. I argue that linguistic considerations are inadequate to determine which of those linguistic contents is the relevant one for legal purposes. Nonlinguistic considerations, such as moral ones, have to be introduced in order to adjudicate between the competing linguistic contents. To make things worse, once we introduce such considerations, they often support other candidates for the content of the law that are not linguistic contents of the relevant texts. See Mark Greenberg, Legislation as Communication? , supra note 2; Greenberg, The Communication Theory of Legal Interpretation and Objective Notions of Communicative Content (UCLA Sch. of Law, Research Paper No. 10-135, 2010), http://ssrn.com/abstract=1726524 .

I am using the term practical here in a relatively narrow sense to concern only questions of what to do. In a broader sense, practical questions would include questions of what to feel or what sort of character to have. Thanks to David Plunkett for suggesting clarification here.

The Moral Impact Theory is a work in progress, and the claim that the relevant moral obligations are all-things-considered, rather than pro tanto, moral obligations is probably the aspect of the theory that I advance most tentatively. I am tempted by an alternative version of the theory, on which whatever pro tanto moral obligations come about in the appropriate way— the legally proper way —would be legal obligations. (On the important idea of the legally proper way, see infra Section II.B.) Some of these obligations would be merely pro tanto, not bottom-line , legal obligations. (Bottom-line legal obligations are those that, after taking into account all of the relevant legal considerations, have not been overridden or outweighed. For example, one who escaped from prison to avoid being burned to death in a fire may breach a pro tanto legal obligation but not a bottom-line legal obligation. In normal parlance, legal obligation is used for bottom-line legal obligations.) On this alternative version of the theory, conflicts between pro tanto legal obligations would be resolved in accordance with what the underlying moral considerations, on balance, require. See infra Part IV. The obligations that win out would be the bottom-line legal obligations. These legal obligations might not be all-things-considered moral obligations; they could be overridden or outweighed by other moral considerations. I am grateful to Selim Berker, Barbara Herman, Scott Hershovitz, David Plunkett, and Scott Shapiro for discussion of these issues.

To avoid confusion, I will not use “obligation” (or other normative terms) in the sociological sense.

There will sometimes be controversy over whether particular putative obligations are genuine. The existence of such controversy does not make the notion of genuine obligation problematic—any more than controversy over which beliefs are true makes the notion of a true belief problematic. Indeed, as Ronald Dworkin was fond of pointing out in discussion, in a typical disagreement about what people are obligated to do, both sides agree that genuine obligations exist; the disagreement concerns the content of the obligations. There are difficult questions about what makes it the case that, for example, someone has a particular obligation, but we need not address such questions for purposes of this paper. Talk of genuine obligations does not presuppose any particular metaethical view, for example objectivism or subjectivism about morality.

Some theorists maintain that there are no genuine obligations (reasons, rights, and so on). This is not the place to address such radical moral—indeed normative—skepticism. In this Essay, I assume what most of us take for granted in our daily lives—that there are reasons for performing some actions rather than others, obligations to do certain things and not to do others, and so on. Although I cannot argue against normative skepticism here, it is worth noting that much of our concern with law presupposes that such skepticism is false. On the skeptical view, people have interests and desires and wield raw power, but there is no reason to be concerned with unfairness, inequality, cruelty, or injustice.

What matters is that, on my view, legal obligations are genuine, all-things-considered, practical obligations. As noted in the text, I think such obligations are moral. But one who is an error theorist about morality specifically but has no quarrel with genuine practical normativity can still accept the essence of my view. For extended discussion and qualification of a closely related point, see Greenberg, The Standard Picture , supra note 2, at 81-84.

For the term moral profile , see id. at 56-57.

On the distinction, see also id. at 66-67.

See Greenberg, Legislation as Communication? , supra note 2, at 219.

See Greenberg, The Standard Picture , supra note 2, at 66-67. As I say there, I don’t mean to suggest that legal scholars are confused about the difference between texts and rules. Id. at 67 n.34.

Even on the Moral Impact Theory, there will tend to be rough correlations between statutory provisions and legal norms. See id. at 59.

For extensive discussion of the relevant sense of directness, see id. at 44-51. The main point is that, according to the Standard Picture, a legally authoritative pronouncement explains the validity of a legal norm without explanatory intermediaries —that is, not by explaining something else which then explains the norm’s validity. As I explain, the absence of explanatory intermediaries is consistent with the possibility that the making of an authoritative pronouncement is not sufficient for the corresponding norm’s being legally valid.

See infra text accompanying and following note 63.

As is standard, I am distinguishing punishment from the use of force to defend myself or others from an imminent threat.

See Seana Shiffrin, The Divergence of Contract and Promise , 120 Harv. L. Rev. 708 (2007).

Thanks to Seana Shiffrin for this example. On other ways in which the law makes the remedies more determinate, see id. at 720-21 & n.17.

There is a vast literature on coordination problems. For seminal discussions, see David Lewis, Convention (2002); and Thomas Schelling , The Strategy of Conflict ( 1960).

Mitchell Berman provides an astute discussion of problems with arguments that democracy (as well as other values) straightforwardly implies that the Constitution must be interpreted in accordance with its original meaning. Mitchell N. Berman, Originalism Is Bunk , 84 N.Y.U. L. Rev . 1, 69-75 (2009).

For discussion of some democratic failings of legislatures, see Hillel Y. Levin, Contemporary Meaning and Expectations in Statutory Interpretation , 2012 U. Ill . L. Rev. 1103, 1134. For nuanced accounts of what democracy supports with respect to constitutional interpretation, see Christopher L. Eisgruber, Constitutional Self-Government (2001); and Lawrence G. Sager, Justice in Plainclothes: A Theory of Constitutional Practice (2004) . It is worth noting that, contrary to what is sometimes assumed, the obligation that a promise generates may not correspond exactly to the linguistic content of the promise. For discussion, see Greenberg, Legislation as Communication? , supra note 2, at 238-39. Bernard Williams may have something like this in mind when he says: “[P]romises in informal contexts are less than contracts: neither the agent nor the recipient need fall back on every word of what was originally understood.” Bernard Williams, Truth and Truthfulness: An Essay in Genealogy 112 (2002). (In my view, the situation with respect to contracts is more complex than Williams’s comment implies.)

See Greenberg, The Standard Picture , supra note 2, at 99-100.

See id. at 84-102.

See Joseph Raz, The Morality of Freedom 45 (1986). Raz uses the example in developing his account of authority. I do not mean to suggest that the new moral obligation replaces the pre-existing moral obligations. People will continue to have relatively open-ended moral duties, such as a duty of beneficence. Thanks to Barbara Herman for pressing me to clarify this point.

See infra Section IV.B.

See also Greenberg, The Standard Picture , supra note 2, at 73-75.

On the consensus that there is no such general moral obligation, see Greenberg, The Standard Picture , supra note 2, at 99-101.

For discussion of the special case of particularized orders (ones directed at particular individuals), such as an order issued by a court after a final judgment, directing a particular individual to pay a particular sum of money, see infra Section IV.B.

The term altered may be misleading. The original, relatively vague moral prohibition will often remain in force. On the other hand, a reason for using the term is that the pre-legal moral reasons are part of the explanation of the new prohibition. Thanks to Scott Hershovitz for pressing me to clarify this point.

Scott Hershovitz argues that the new obligation (the criminal law obligation) is to the state, and that is why it is permissible to punish violators. See Scott Hershovitz, The Authority of Law , in The Routledge Companion to Philosophy of Law 65 (Andrei Marmor ed., 2012). On that view, all criminal law obligations differ from the pre-existing moral obligations on the dimension of to whom the obligation is owed.

The obligations may be strengthened as a result. But, in my stipulative use of the term, to say that the obligations are reinforced is neutral with respect to whether the obligations are strengthened. Adding reasons against engaging in certain conduct can also have the salutary epistemic effect of dispelling uncertainty about the existence of an obligation, one that already in fact obtains.

When the actions of legal institutions do not generate new obligations but merely result in additional reasons for pre-existing moral obligations, then, strictly speaking, I should talk of the moral obligations that are reinforced in the appropriate way, rather than those that come about in the appropriate way.

Thanks to Seana Shiffrin for suggesting this example. Legal institutional action can also fail to generate legal obligations. See infra Section IV.B.

Such a method could, in a particular case, ultimately improve the moral situation overall, for example by producing a backlash against the legal system, or even a revolution. The paradoxical method is not a reliable way of improving the moral situation in normal circumstances, however. In general, accounts of what makes an object or system with a point or function defective depend on a distinction between normal and abnormal circumstances (for the relevant type of object or system). For example, under certain circumstances, a heart with a leaky valve may be better at circulating blood than a heart without a leak. But a heart with a leaky valve is nevertheless defective because such a heart will not generally be effective at circulating blood under the circumstances that are normal for hearts.

There are other interesting ways in which legal institutions can generate moral obligations that are intuitively not “legally proper.” For example, suppose that a legislature explicitly states that it is merely suggesting, not mandating, a proposed solution to a coordination problem. Despite the precatory language, the legislative pronouncement could have the effect of making the proposed solution more salient than others, thereby generating a moral obligation to adopt that solution. It would seem peculiar to characterize this moral obligation as a legal obligation. (Thanks to Ben Eidelson for raising this example.) On my view, the reason that the resulting moral obligation does not count as a legal obligation derives from another aspect of the nature of legal systems. In The Standard Picture and Its Discontents , I argue that a legal system, by its nature, is supposed to generate all-things-considered binding obligations. Greenberg, The Standard Picture , supra note 2, at 84-96. I call this the bindingness hypothesis . The hypothesis is not that generating binding obligations is an aim of legal systems, but rather that it is a constraint on how a legal system is to go about fulfilling other aims, such as changing the moral situation for the better. Id. at 88-89. Because legal systems are supposed to change the moral situation for the better by generating all-things-considered binding obligations, an institution that explicitly purports not to be generating binding obligations is not acting in the legally proper way. Therefore, the obligations that result, even if they happen to be all-things-considered binding, are not legal obligations.

As a preliminary matter, it is worth noting that the answer to this question is less critical for my theory than it is for theories of law that presuppose the Standard Picture. On the Moral Impact Theory, by contrast with such theories, there is no claim that legal institutions have the special power to create legal obligations merely by issuing pronouncements according to specified procedures. On the Moral Impact Theory, moreover, legal obligations are a subset of genuine obligations, and whether we classify institutions as legal or not has no effect on what we take our genuine obligations to be. Thus, the distinctions between legal and non-legal obligations and between legal and non-legal institutions are less important than on many other theories.

Having said this, it is an important question what makes an institution a legal institution. For example, which institutions are legal, and therefore which obligations are legal, will have implications for which obligations a legal system should enforce.

The claim in the text is too quick. That a legal system , by its nature, is supposed to improve the moral situation doesn’t entail that every legal institution is supposed to do that. Some legal institutions might have minor supporting roles. But it is part of the Moral Impact Theory that the legal institutions that are relevant for its purposes—the ones that generate those moral obligations that are legal obligations—are ones that are supposed to improve the moral situation. As Ben Eidelson pointed out to me, this point is really an elaboration of the notion of the legally proper way of changing the moral profile, discussed above. That is, in order for a change in the moral profile to come about in the legally proper way, it must be the result of action by a legal institution that, by its nature, is supposed to improve the moral situation. The bindingness hypothesis, see supra note 72 , may also yield a necessary condition on a legal institution.

Shapiro, supra note 23, at 213-17 . We disagree, however, about what makes it the case that the law has a particular aim or is supposed to do something. On Shapiro’s view, “[t]he law possesses the aim that it does because high-ranking officials represent the practice as having a moral aim or aims.” Id . at 216-17. On my view, such representations are only one determinant of what law is for or is supposed to do.

Raz, supra note 37 , at 150-54. Raz’s analysis has a third condition: a legal system must be an open system. Id . at 152-54.

Shapiro , supra note 23, at 222.

See Raz , supra note 37, at 150; Shapiro, supra note 23, at 223-24.

On my usage of the term legal interpretation , see infra note 100.

508 U.S. 223 (1993). The discussion in this Section focuses on statutes. For elaboration on the way in which the Moral Impact Theory understands the impact of appellate decisions, see supra Section II.B.

Smith , 508 U.S. at 228, 230; id. at 242-44 (Scalia, J., dissenting).

Id. at 229 (majority opinion).

Id. at 242, 245 (Scalia, J., dissenting). Justice Scalia seems to take his discussion of how words ordinarily are used to be an explication of their ordinary meaning. As I discuss in the text, however, his argument is better understood as getting at what people ordinarily mean when they use certain words or phrases (roughly, speaker’s meaning as opposed to semantic content).

Id. at 229, 236.

Id. at 231.

Id. at 239.

Id . at 240. How is Congress’s intention concerning which transactions are to receive augmented punishment different from Congress’s intention concerning how the language is to be construed? The former is an intention concerning the ultimate legal impact of the statute; the latter, by contrast, is a linguistic intention. For a nice example of how the two can come apart, see the discussion of Saadeh v. Farouki , 107 F.3d 52 (D.C. Cir. 1997), in Greenberg, Legislation as Communication? , supra note 2, at 242-44.

Smith , 508 U.S. at 240.

Id. at 243 (Scalia, J., dissenting).

Id. at 233 (majority opinion).

Id. at 233-35.

Id. at 246 (Scalia, J., dissenting).

Id. at 246-47 (Scalia, J., dissenting).

In some instances, the opinions appeal to past practice. See id. at 228, 233-35, 239-40 (majority opinion); id. at 241-42 (Scalia, J., dissenting). On why past practice cannot provide an adequate account, see infra note 102.

The majority and dissent do not even agree about which considerations are relevant . While the dissent appeals to the Sentencing Guidelines, the majority finds it “dubious . . . that the Sentencing Guidelines are relevant in the present context.” Id. at 231. But neither side offers a reason for its position.

Scott Soames , Interpreting Legal Texts: What Is, and What Is Not, Special About the Law , in 1 Philosophical Essays 403 (2008); Stephen Neale, Textualism with Intent 69-72 (Nov. 2008) (unpublished manuscript) (on file with author).

See Soames, supra note 96, at 412-14; Neale, supra note 96, at 26-36. The distinction derives from the seminal work of Paul Grice. Paul Grice, Studies in the Way of Words (1989). I am setting aside the further distinction between what is stated or asserted and what is merely implicated, as it is unnecessary to the present discussion.

Soames , supra note 96, at 414-15. The discussion of Smith in Neale’s manuscript is incomplete, but it is clear from the rest of the manuscript (and personal conversations) that this is Neale’s central point. See Neale, supra note 96, at 70-72; see also id. at 26-27, 35-36, 49-50 & n.33, 60-62, 66-68.

See Soames , supra note 96. A caveat with respect to Neale. In a later version of his rich paper, he writes that the communicative content of a statute (his preferred term is what a statute states ) “leaves wide open the question of the contribution it makes to the law,” and concedes that the latter question goes “well beyond the philosophy of language.” Neale, The Intentionalism of Textualism 5 (2009) (unpublished manuscript) (on file with author). Aside from this official disclaimer, however, Neale seems to assume throughout that the communicative content of a statute is its contribution to the law. Moreover, if the disclaimer were taken seriously, Neale’s paper could not do what it purports to do. For example, his paper claims, on exclusively linguistic grounds, to dissolve the debate between textualists and intentionalists. But that debate concerns a statute’s contribution to the content of the law, not merely its communicative content. For criticism of the communicative content theory of law held by Soames, Neale, and others, see Greenberg, Legislation as Communication? , supra note 2.

As I use the term, legal interpretation is the activity of working out the content of the law. Statutory interpretation , in particular, seeks to ascertain a statute’s contribution to the content of the law. My usage contrasts with one according to which interpretation is the activity whose ultimate goal is to ascertain the linguistic content of the relevant legal texts. For this latter usage, see Lawrence Solum, Originalism and Constitutional Construction , 82 Fordham L. Rev. 453 (2013). Interpretation in my sense is also not to be equated with how courts should decide cases. For example, in deciding cases, courts should sometimes create new legal standards and should sometimes not enforce existing legal standards. See infra Section III.C for brief discussion of the distinction between determining what the law is and deciding cases.

On the rule of lenity, see Greenberg, The Standard Picture , supra note 2, at 76. On past decisions, see supra text accompanying note 62.

Two other main candidates for what could explain the relevance of various factors to statutory interpretation are linguistic considerations and established practice (“that’s how we do things in this legal system”). With respect to the former, I have argued elsewhere that, though the study of language is helpful in clarifying and distinguishing the candidates for a statute’s contribution to the content of the law, it lacks the resources to explain which of these candidates constitutes a statute’s contribution to the law. See Greenberg, Legislation as Communication? , supra note 2.

With respect to past practice, notice first that it may itself be relevant for moral reasons. For example, if courts have in the past reliably interpreted statutes according to the semantic content of the text rather than what the legislature intended to communicate, then legislators and the public have reason to understand legislators to be voting on the semantic content, not on the communicative content. So there are democratic reasons for interpreting the statute in accordance with the past practice. Next, even if past practice can provide a reason for interpreting a statute in a particular way, it can’t be the only reason. For one thing, it’s familiar for judges and legal theorists to argue in favor of rejecting a particular well-established practice. Justice Scalia, for example, has famously argued (on democratic grounds) that legislative history deserves no weight in statutory interpretation. Such arguments would be incoherent if past practice were the only relevant consideration. For another thing, when past practice offers support for different ways of interpreting a statute, as it frequently does in our legal system, it provides no help in resolving the conflicts. In Smith , for example, appeal to past practice does not resolve the issue. More fundamentally, I have proposed elsewhere that it is an essential feature of a theoretically interesting class of legal systems of which our legal system is a member—and perhaps of all legal systems—that there are always reasons why a particular aspect of the practice has the consequences that it does for the content of the law. The mere fact that things have been done a particular way in the past cannot by itself provide such a reason. See Greenberg, How Facts Make Law , supra note 2; Greenberg, How Facts Make Law II , supra note 2; Greenberg, On Practices and the Law , supra note 2.

See, e.g. , Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 17-18 (1997); John F. Manning, What Divides Textualists from Purposivists? , 106 Colum. L. Rev. 70 (2006).

See, e.g ., Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999).

Soames suggests understanding the disagreement along essentially these lines. See S oames , supra note 96, at 412-15.

Accounts of statutory and constitutional interpretation that are grounded on moral considerations often assume that there is one candidate for a provision’s contribution to the content of the law, whether it be original public meaning, communicative content, or something else, that is supported by moral considerations with respect to all statutory or all constitutional provisions. See, e.g. , sources cited supra notes 103-104. The Moral Impact Theory makes no such assumption. It may be that the relevant values point in different directions in the different circumstances of different statutory or constitutional provisions.

143 U.S. 457 (1892).

Id. at 458.

Id. at 465.

Id. at 465-72.

See Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985) (“[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.”); Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1206 (2011) (“We have long applied ‘the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.’” (quoting King v. St. Vincent’s Hosp. , 502 U.S. 215, 220-21 n.9 (1991))).

Thanks to Ben Eidelson for suggesting the example of the canon concerning Native Americans.

The fact that the theory does not convert statutory interpretation into a mechanical procedure is no objection to it. Indeed, it would raise serious doubts about the Moral Impact Theory if it purported to offer an algorithm for statutory interpretation. Below, I consider the objection that, because the Moral Impact Theory has the consequence that working out the content of the law requires moral reasoning, it makes it impossible for law to fulfill its settlement function. See infra Section IV.B.

It is familiar to encounter arguments that, in a particular context, only certain moral considerations should be considered. But this type of argument rests on the claim that, in the context in question, it is morally better, on balance, not to take certain moral considerations into account. What is needed to block the argument in the text is, rather, an argument for not taking into account certain considerations, regardless of whether, on balance, it is better that they be taken into account. A different possible way to block the argument would be to find a proprietary legal justification for not taking into account moral considerations. It is conceivable that the nature of law itself might determine how statutory interpretation is to be carried out. In that case, however, no appeal to democracy or the like would be relevant. To block the argument, we would need a proprietary legal reason why, say, one aspect of democracy is relevant to statutory interpretation but other aspects of democracy are not.

See Jerry Fodor, The Mind Doesn’t Work That Way: The Scope and Limits of Computational Psychology 23-40 (2000).

See supra Subsection II.A.3.

Thanks to Derek Parfit for helpful discussion on this point.

It is also worth noting that the content of the law in the United States may appear to fall further short of ideal justice than it actually does because of the judicial unenforcement of constitutional norms. See Sager , supra note 57; Sager, supra note 28. For example, because of institutional concerns, courts do not invalidate some statutes that are in fact constitutionally invalid.

See Larry Alexander & Emily Sherwin, The Rule of Rules: Morality, Rules, and the Dilemma of Law (2001).

See Dworkin, Law’s Empire, supra note 28, at 93.

Seana Shiffrin has argued that law has a function of morally educating citizens and developing their moral capacities. See Seana Valentine Shiffrin, Inducing Moral Deliberation: On the Occasional Virtues of Fog , 123 Harv. L. Rev. 1214 (2010). If law has such a function, then the need to engage in moral reasoning to work out the content of the law actually enables the law to better fulfill one of its functions.

See Greenberg, The Standard Picture , supra note 2, at 96-104.

See supra text accompanying notes 51-62.

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Kohlberg's Theory of Moral Development. Kohlberg's theory of moral development is a theory that focuses on how children develop morality and moral reasoning. Kohlberg's theory suggests that moral development occurs in a series of six stages and that moral logic is primarily focused on seeking and maintaining justice.
Yale Law Journal
According to the Moral Impact Theory, the content of the law is that part of the moral profile that obtains in virtue of certain actions of legal institutions. In conclusion, it is worth emphasizing how simple and natural the theory is. On the face of it, law-creating institutions try to create binding obligations.
Kohlberg's Theory of Moral Development essay
Additionally, some have questioned the idea that moral development is a fixed, linear process, and argue that individuals may revisit earlier stages of development later in life. In conclusion, Kohlberg's theory of moral development remains a highly influential and widely studied theory in the field of psychology.
Kant's Moral Theory Essay
Show More. Kant's moral theory is based on the fact that one's action should be governed by a maxim that follows the purity of the will; the idea that one's actions should be based on a will that aligns with duty and not on the consequences of one's actions. In the contrary, rule utilitarianism is based on the consequences of one's ...
Moral Theory Essay Examples
Moral Theory Essays. Utilitarianism and Kantianism. Moral Theory of Utilitarianism Utilitarianism is a philosophical theory that explains whether an act is right or wrong depending on its consequences. An action is morally right if gives happiness and pleasure to the highest number of people. According to this theory, action or inaction with ...

Essay on Moral Philosophy

100 Words Essay on Moral Philosophy

Important Ideas in Moral Philosophy

Making Decisions

Different Cultures, Different Morals

Why It Matters

250 Words Essay on Moral Philosophy

Right and Wrong

Good Habits

Choices Matter

Why Study Moral Philosophy?

500 Words Essay on Moral Philosophy

Good vs. Bad

Rules and Choices

Different Views

Thinking for Ourselves

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Explaining Value: and Other Essays in Moral Philosophy

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Essays on the History of Moral Philosophy

Essays in moral philosophy

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Kohlberg's Theory of Moral Development

What Is Moral Development?

How Kohlberg Developed His Theory

Stages of Moral Development

Level 1. Preconventional Morality

Level 2. Conventional Morality

Level 3. Postconventional Morality

Applications for Kohlberg's Theory

Criticisms for Kohlberg's Theory of Moral Development

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ESSAY CONTENTS

Introduction

I. situating the theory

II. the theory

A. Preliminary Clarifications and Refinements

2. The Moral Profile

3. Legal Texts Versus Legal Standards

B. How Legal Institutions Change the Moral Profile

C. Clarifying Which Moral Obligations Are Legal Obligations

1. Pre-Existing Moral Obligations

2. The Legally Proper Way

3. What Makes Something a Legal Institution

III. the moral impact theory and legal interpretation

A. A Statutory Interpretation Example

B. The Relevance to Statutory Interpretation of Factors Other than Actions of Legal Institutions

C. Clarification of the Need for an Ambitious Moral Theory

IV. objections

A. Arbitrary and Evil Legal Norms

B. Moral Disagreement

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Moral Theory Essays

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