Where Law and Morality Meet

Abstract

This book explores some of the chief ways in which law and morality are connected, and some of the many respects in which they remain distinct. The book's eight chapters are grouped into three parts. In the first part, Kramer argues that moral principles can enter into the law of any particular jurisdiction. Legal officials can invoke those principles as laws for resolving disputes, and can likewise invoke them as threshold tests which ordinary laws must satisfy. In opposition to numerous other theorists, Kramer contends that these functions of moral principles within the law are consistent with all the essential characteristics of any legal system. In the second part of the book, Kramer reaffirms legal positivism's insistence on the separability of law and morality. Despite the important links between those two domains, Kramer resists the efforts of natural-law theorists to portray legal requirements as a species of moral requirements. Law is not inherently moral either in its effects or in its motivational underpinnings — even though the existence of a legal system in any sizeable society is indispensable for the realization of fundamental moral values. In the final part, Kramer contests the widespread view that people whose conduct is meticulously careful are never morally responsible for harmful effects of that conduct. In so arguing, he reveals that fault-independent liability is even more common in morality than in law. Through a variety of arguments, then, Where Law and Morality Meet highlights some surprising affinities and some striking divergences between morality and law.