The two lives of law's moral aim

The chapter compares how moralized and positivist accounts of the joint activity of law construe the claim that law necessarily has a moral aim. This comparison demonstrates that the idea of a joint activity plays a very different role in moralized and positivist accounts. In the latter, this role is explanatory: It is meant to capture the main characteristics of a more or less stable practice that emerges from the intentions and actions of a multiplicity of institutional actors; thanks to (some of) those characteristics the law can achieve its moral aim, but they do not guarantee that it will. In the former, joint activity plays a justificatory role: It is meant to identify a dimension of moral worth that inheres in legal officials’ being under a duty to be responsive to and rely on what other officials say and do. Thus understood, moralised accounts of the joint activity of law are immune to the criticism that they presuppose legal positivism.