Hart

I think, Hart’s position that judges should strive to make a clean distinction between “what law is” and “what law ought to be” is ultimately untenable. Hart seems to believe that surrounding the penumbra of law is a settled core; that judges who set foot on this hallowed ground should, like Moses, walk with the utmost reverence and in doing so, abandon preloaded moral judgments and act only to apply the “law that is.” In the best case, as Hart sees it, veering from this route presents judges with too many attractive alternatives to what the law is. Each one vies for his attention and all operate to dilute the core of the law and expand the area of the penumbra. In the worst case, the entwinement of law and morality turns into an instrument of despotism or in words of Hart, “that the existing law may supplant morality as a final test of conduct and so escape criticism” (p. 71). I think this argument is especially shrewd and serves as a good response to the natural law theorists who blame the stature of positivism in Nazi society for the abusive laws that quickly sprang up.

So while it might be the case that softening the distinction between “what law is” and what “law ought to be” does not guarantee a benevolent and humane society, it is interesting to note that Hart makes two significant concessions concerning the relationship between law and morality. First, he references the utilitarians and seems to agree with them here that the development of the legal system was profoundly influenced by moral views and second; that it might be possible and appropriate at times to incorporate moral principles into law. Taken together, both concessions substantially increase the relevance that morality has in its relationship with law. If it’s true that law is often based on moral opinions and that those opinions can and should be incorporated into law (probably through the legislative process), is it really inappropriate or even a leap to say that judicial decisions can be informed by morality? It may be the case that bringing moral opinions to bear may actually breathe life into legislative intent, since the “law that is” may not be the law that legislators intended.

Of course, if its okay to entwine the “is” and the “ought” then how does society prevent judges from inserting their own private moral opinions into law, thereby legislating from the bench? A couple points. First, I think that since morality by nature is hierarchal (e.g., murder is worse than stealing) utilizing morality does not necessarily create more options for a judge to choose from. It may create less. In fact, since what the “law is” is often silent, as in the case of Riggs v. Palmer, bringing moral judgments to bear may illuminate a path. This answer is still not satisfying because it does not show how the core of law is necessarily protected from rogue moral opiums. In conclusion then, the second point is that judges might refrain from radically altering the course of law if they were held to account more than what the status quo allows. In other words, if a judge, while blurring this “is” and the “ought” broke with past judgments and acted with questionable moral justification (meaning, out of step with society) than he would be subject to an investigation and retired early. Of course, this solution opens the door to other problems, for instance, that it might be used for political purposes but I’m not convinced such potential harms could not be mitigated or create an acceptable level or risk given the benefits gained.