The Two Lives of Law’s Moral Aim

This chapter compares how moralized and positivist accounts of the joint activity of law construe the idea that law necessarily has a moral aim. This comparison sheds light on how the idea of a joint activity itself plays a very different role in moralized and positivist accounts. In the latter, this role is explanatory: It is meant to capture the way in which certain social institutions interact. In the former it is justificatory: It is meant to identify one of the factors (or cluster of factors) that bear on the legitimacy of certain salient uses of state power. The reason for explicating the idea of a joint activity is likewise different. In one case we want to understand the mechanism whereby a more or less stable social practice emerges from the intentions and actions of a multiplicity of actors. In the other we want to elucidate a dimension of moral worth in legal officials’ being under a duty to be responsive to and rely on what other officials say and do.