Comments on: Morals’ Law

By: MT

MT — Mon, 02 Jan 2006 02:02:15 +0000

Make that “could be satisfied” (I tripped on my double negatives)

By: MT

MT — Mon, 02 Jan 2006 01:55:54 +0000

I haven’t read Plessy and can barely recall what I’ve read about it, but just considering the abstract policy at issue, I know I’ve heard people argue that integration has disserved black education in some ways, and it’s far from obviously immoral to me to argue that constitutional equal protection couldn’t be satisfied under any kind of segregation. What concerns me more is that lawyers work in good faith and don’t mislead–vague words, but ones I feel we ought to be able to understand and agree on. Outside the courtroom and and in public discourse, I want lawyers wearing a well-marked advocate hat when either the EPA or the corporate polluter is their client, and otherwise I’d like them to opine as a judge is supposed to, which I suppose entails characterizing the legal situation disinterestedly, warts and all and as they truly see it.

By: Joe Miller

Joe Miller — Mon, 02 Jan 2006 00:27:18 +0000

MT,
I agree that the Balkin formulation doesn’t describe a mechanism for how moral constraints on legal argument are realized. I suppose what I found helpful in it is the reminder that the ultimate success or failure of legal argument is, in an important sense, not about the internal coherence (or the craft value) of the legal reasoning at all, but rather about the soundness of the fundamental moral commitments in the service of which the legal reasoning is used. The benefit of historical hindsight (with the passage of time that implies) is no doubt a big aid in seeing the force of the moral constraints on law. For example, history rightly judges Plessy v. Ferguson (”separate but equal”) as a legal failure, however professionally executed a bit of judicial writing craft it may have been according to then-prevailing professional standards.
And, I suppose, the other thing the Balkin formulation makes clear … if it weren’t clear already … is that those making legal arguments about one of today’s hot-button issues (such as domestic spying by the NSA) should be cognizant of the moral framework(s) people will use to assess those arguments. Indeed, perhaps the advocates should talk explicitly about those frameworks, too, since listeners will doubtless be thinking about them.

By: MT

MT — Sun, 01 Jan 2006 18:00:53 +0000

I must be missing something. I commented at the original post that this was far too vague to do the job of reassuring me personally.