Is There a Place for Morality in Law?

Abstract

The question of the interrelationship of law and morality has been an issue of central concern to legal theorists. Kelsen, Finnis and Dworkin perhaps represent three conventional strands in the debate. Of the three, only Kelsen, insisting on a strict separation of law and morality, would agree with the statement "It is apparent that there is no place for morality in law", although I will argue, he inadvertently lets a morality of orthodoxy in the back door. Finnis, a natural law proponent, argues that the law should be imbued with a morality discoverable by a process of practical reason, but that there is no necessary connection between the legal and the moral. Dworkin occupies the middle ground. Concerned to broaden legal analysis from a preoccupation with the pedigree of rules, he suggests that background principles of political morality inform the law. I will argue that Dworkin's conception of morality is backward looking and denies an emancipatory aspect to law making. Although starting from different premises, each theorist, admits a conservative morality to the legal sphere that is inadequate to the task of articulating a nonexclusionary vision for law.