Tuesday, September 13

The Limits of Law as a Moral Arbiter

Americans are increasingly looking to the law as the moral arbiter for our times. High-profile court cases on gay marriage, affirmative action, and the death penalty highlight the trend. But so do legislative efforts on deeply divisive issues such as social-security reform, abortion, and assisted suicide.

We have long applied the law to moral issues. Civil-rights laws including the Brown v. Board of Education decision desegregating schools in the 1950s reflect some fundamental, if embattled, American values. But this use of the law today occurs in an altered moral landscape. Our law has traditionally presupposed the vitality of institutions other than the state for the creation of an underlying moral culture. Families, religious organizations, and workplaces have had a role in fostering values. But as those institutions grow more diverse, and compete with parents' increasing workplace demands and the wide range of moral representations in the media, they are losing much of their broader moral authority and influence. Given law's ubiquitous and potentially unifying character, it is tempting to expand its role to fill that gap.

As a legal scholar and ethicist whose work explores the moral dynamics of the law, I might be expected to welcome this development. But I am wary of our current willingness to use law as an arbiter. Doing so obscures the law's genuine moral worth, which lies not in how it imposes a resolution upon our disputes, but in how it fosters our potential for moral development.

Legal impositions fail to foster our moral development because they often overlook the way the law relies on our underlying moral culture. The law's ability to inspire moral growth works best when it maintains a vital yet ambivalent relationship to that culture. On the one hand, the law needs to draw upon our widely held values. On the other, it needs to promote the evolution of those values.

One can readily see how we've come to look on the law as moral guide. In The New Ethics: A Guided Tour of the 21st-Century Moral Landscape, Anita L. Allen, a law professor at the University of Pennsylvania, describes a moral culture unable to meet its own aspirations. Noting "widespread ethical failure against the background of a culture rich with moral resources," she, like the wider public, is unsettled by the contemporary moral landscape. However one interprets the effect of "values voters" on the outcome of the last presidential election, many Americans -- on the right and the left -- clearly have significant misgivings about the moral culture in which they live. The left is worried about American aggressiveness abroad and inequality and censorship at home. The right is worried about the decline of the family and the erosion of traditional religious beliefs.

We have ever more choices about our lives but diminishing connections with each other, Allen argues. New technologies and new freedoms press novel decisions upon us. We have unprecedented and still-growing power to change our bodies, our family arrangements, our work environments, even sometimes the kind of deaths we experience, as the recent Terry Schiavo case so vividly reminded us. But accompanying those choices is a particular kind of social isolation. Allen notes our "insular complacency," our willingness "to live segregated among our own kinds on exclusive islands of race, ethnicity, and income."

That combination of emerging choices and growing social isolation is morally enervating. Novel and complex options often challenge traditional values, revealing their limits and requiring their development. But such development occurs best amid socially rich and diverse relationships, not ones marked by the "insular complacency" that Allen describes. That is because engagement with differing viewpoints fosters the more complex thinking we need when a traditional value proves inadequate. More than one family has changed its views on stem-cell research when confronted by a relative with a debilitating disease.

Troubled by today's moral culture, withdrawn from the institutions that have historically guided it, Americans are looking anew to the law to guide social change.

In Law's Quandary, Steven D. Smith examines the prevalence in legal practice and discourse of a transcendent sense of the law, one that views the law as more than the particular choices of our legal institutions and actors. Smith points, for example, to the practice of a dissenting judge writing an opinion saying the majority ruling is in error. That makes sense only if the law is more than the majority's controlling decision. Smith considers different possible sources of this larger sense of law. Is it a holdover from an earlier era or a kind of modern idolatry? Is it an ad hoc Platonism or the natural law of a religious worldview? For Smith, this view of the law presents a metaphysical quandary because we persist in this belief without being fully able to explain it.

Whatever its source, our transcendent view of law contributes to its appeal as a moral arbiter. In morally divisive times, we naturally look for an authority beyond the fray, one that can offer something more than inevitably conflicting individual choices. That "something more" is what this dimension of law promises us as morally flawed creatures. In principle, the law can succeed even where our individual characters fail. We deeply desire that sense of transcendence, one not tied to our own fallible decisions, and so we make the metaphysical leap of faith.

But morally speaking, our reliance on the transcendent sense of law has a critical flaw. It misses the essential core of morality: We can never avoid our own choices. By its very nature, morality is inextricably linked to individual volition. Only actions freely chosen, not those compelled by force, reflect our moral growth, whether the coercion springs from a court ruling or a legislative enactment.

The profound moral worth of the law lies in how it can mediate our choices over time. It does so by intervening between our moral values and the actions that spring from those values. It at once draws upon our moral values and fosters their development.

Richard McAdams, of the University of Illinois College of Law, reminds us that we find social norms at various, and shifting, levels of abstraction. Although moral norms often have a more general, open-ended quality, legal norms tend to be more specific and concrete.

For instance, McAdams contrasts the general moral standard embodied in our ideal of good parenting with the specific legal standard found in laws requiring car-safety seats for young children. The enactment of such safety laws, he argues, can over time affect our understanding of the ideal of good parenting. That occurs because of the way the more determinate legal norm provides a new structure and content to the underlying moral one. As the social meaning of good parenting has evolved, it has broadened to include the diligent use of car-safety seats for children, even though good parents of an earlier era had different ideas. While my mother happily bounced me on her knee during the family car trips of my youth, if I were to do likewise with my young daughter today, I would not only face legal sanctions, but would undoubtedly raise doubts among my neighbors regarding my moral fitness as a parent.

As the law affects our evolving conceptions of parenthood, so it can likewise contribute to our moral development on more socially volatile issues like gay marriage, abortion, gun ownership, and so on. But such moral development is unlikely to occur through the use of the law as a moral arbiter. In serving that role, the law puts its coercive nature on display, imposing a resolution upon our disputes. But legal impositions do not create values. The law's contribution to our moral growth depends rather on its ability to draw creatively upon our values.

Both the possibilities and limits of the law are on display, for example, as gay Americans struggle for their rightful place within American society. The advocacy of civil unions for gay men and women has a very different underlying moral dynamic than the prospects for gay marriage. Deeply woven into the fabric of American moral culture is the value of equal protection under the law. This general moral norm of equal protection is amenable to development in the way that advocates for gay civil unions envision. Just as the moral ideal of equal protection has evolved to protect those encountering discrimination based on race or sex, so it is open for development to protect those who are subject to unequal treatment stemming from their sexual orientation. Its general nature could easily incorporate for gay couples the specific legal rights enjoyed by heterosexual couples, such as those pertaining to inheritance, divorce, and mutual support.

But the concept of gay marriage has greater difficulty gaining similar footing within our underlying culture. For it involves not simply equal protection under the law, but the law's ability to define an institution, marriage, that transcends our civil code. The challenge for those of us who support gay marriage is that we assume marriage to be simply a legal contract, alterable at will by legal authority. Within our prevailing culture, however, marriage has deep religious roots and must, in the minds of many Americans, answer to a higher power.

While the law's ambivalent relationship to its underlying moral culture may frustrate our desire for greater moral progress on controversial issues that divide us, the relationship mirrors our deep ambivalence toward the law itself. We wish the law to reflect our moral values yet remain at a critical distance from them.

We want law to reflect our values because that ensures its legitimacy. The law must be more than an expression of a powerful few or even a slim majority if it is to have our allegiance. We don't want the law simply to resolve our conflicts. We want the law to resolve them rightly.

But influenced too overtly by subjective, personal values, the law loses its status as a principled, neutral arbiter among diverse interests. While the law's legitimacy requires a moral content, the law's dependence on values can cast doubt on its fairness.

Though the law's role as moral arbiter may capture headlines, our moral growth as a society depends on understanding the subtler moral dynamics of the law. Those of us who teach law have a significant role to play in furthering that understanding. To do so, we must re-evaluate the way the traditional professional study of law has been divorced from the liberal arts. We need to make the study of law about more than the training of lawyers.

Scholars are increasingly recognizing that the study of law is a worthy part of a liberal education. In Law in the Liberal Arts, the book's editor, Austin Sarat, a professor of jurisprudence and political science at Amherst College, points out that the professional study of law "focuses on law as a tool rather than its place in society or its ethical and rhetorical dimensions." Yet in the world we are coming to live in, the law's "place in society," particularly "its ethical and rhetorical dimensions," has greater salience than ever before.

Professional legal education fails to focus more fully on the moral dynamics of law because it was developed in a culture very different from today's. Legal education in the 1950s, for example, often presumed a moral consensus that kept many of our conflicts out of legal arenas. In our morally fragmented society, the law is pressed into ever-greater moral service, for good or ill. As more of our contemporary moral struggles are filtered through legal mechanisms, separating the study of law from morality risks obscuring one of the central dynamics at play within today's legal system.

That separation skews our conception of law in a distinctive way. The focus on "law as a tool" that Sarat describes furthers law's role as a moral arbiter. When we view and engage law as a tool, we approach our moral disputes as problems to fix. When the traditional professional study of law excludes morality, but law is used as a tool to apply to moral dilemmas, a dangerous disconnect occurs. The temptation is to use the conceptual apparatus of the law without a nuanced understanding of the values of our underlying moral culture. In a morally diverse society, such a use of law too readily comes to rely on the law's coercive power.

The law will probably remain a highly visible forum for resolving our most divisive disputes. But unless we have a broader awareness of its often subtle capacity to foster our moral growth, the law cannot do that work well. Those who support the measures the law takes will be frustrated by its inability to win a broader allegiance. Those frustrated by the law's steps will increasingly question its legitimacy.

Making legal study a fuller part of liberal education will enrich what, as Sarat reminds us, its professional isolation has diminished, "our ability to see the complex connections of law, culture, and society." We've already seen the law's limits as a moral arbiter. But we've yet to become adept at tapping its more significant potential: its ability to help us develop the best in ourselves.

Jeffrey Nesteruk is a professor of legal studies at Franklin & Marshall College.