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45 C H A P T E R 2 l LawandMorality Understanding the Relationship It seems as if every complicated moral issue sooner or later becomes a legal issue, at least in the United States. Consider, for example, the recent tobacco litigation in which persons harmed by smoking and the states responsible for paying their costs sued tobacco companies for monetary damages.1 The underlying moral question was whether tobacco companies should profit by selling such a dangerous product. This moral question immediately generated numerous legal questions. For example, why should we allow those harmed by smoking to sue the cigarette manufacturer under tort law? Does it matter if a smoker knew about the risks when he or she took up the habit? Suppose he or she was a minor at that time? Should states be able to recover from the tobacco companies the Medicaid dollars spent on persons who died of lung cancer caused by smoking? Or should the states save money by refusing coverage to anyone whose illness is largely attributable to individual faulty choices, such as excessive eating, drinking, or smoking? Or think about the controversies currently surrounding homosexuality.2 How do moral positions map onto legal ones? Is someone who thinks homosexual activity is immoral thereby committed to believing it should also be prohibited by the criminal law? At the other end of the spectrum, does internal consistency require a person who believes that homosexual activity is not morally different from heterosexual activity to support gay marriage as well? What about people in the muddled middle? What should their legal stance be? 46 Law as a Moral Teacher Law and morality intersect in many other matters of grave public concern, such as affirmative action, the death penalty, and school choice. Nowhere have they become more hopelessly intertwined than in the case of abortion. Moreover, the entanglement is not likely to sort itself out any more easily with respect to the fruits of the human genome project or euthansia. But we must make the effort. Understanding the relationship between law and morality in our pluralistic society will require finding our way between two opposite and equally damaging extremes. We should not make the mistake of assuming that law and morality are coextensive, on the one hand, or of maintaining that they should have as little as possible to do with each other, on the other. In very different ways, both mistakes can be traced to the same fundamental problem: ignoring the full range of ways in which moral considerations enter into wise lawmaking. The first mistake is made by some activists—at all points on the political spectrum— who believe that the legal system should accurately mirror their normative vision of society in every respect. They treat any divergence between the two as an unfortunate compromise, to be overcome as soon as politically feasible. This approach tends to reduce the moral analysis of lawmaking to scrutiny of the actual content of the legal norm at issue. It assumes that all morally good acts should be required and all morally bad acts should be prohibited. This analysis wrongly treats an act of law almost as if it were an act of magic. It mistakenly assumes that by passing a law we can bring about a desired state of affairs instantaneously, without any effort, cost, or abuses.3 But this is not the case. The legal system is both administered by flawed individuals and institutions and applied to flawed individuals and institutions. Moreover, the law is not a collection of discrete elements but a complicated and interlocking web of prohibitions, permissions, and requirements. Making and enforcing laws are themselves human actions subject to moral and practical evaluation. Moral analysis of the human activity of lawmaking must take into account far more than the moral content of the law in question, considered in the abstract. It must also consider how the law will actually function in the particular time, place, and community that it purports to govern. The opposite mistake is made by those who say that law has no business imposing or even promoting one or more particular visions of morality, that the law’s purpose is simply to function as a police officer by preventing people from being harmed without their consent. I describe this approach, which is heavily indebted to the nineteenth-century liberal philosopher John Stuart Mill, in some detail in the first chapter.4 According to its modern proponents, such as Joel Feinberg, the law...

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