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Law and the Moral Life


Let me begin with a story from the trenches. On a public radio call-in program in the thick of the Clinton impeachment imbroglio, I found myself being bombarded with denunciations from irate citizens. Most callers seemed to believe I was either a member of the "Christian Right" or part of a "vast right-wing conspiracy" because I claimed that there had been just a bit wanting in the President's behavior as President in the conduct of the Lewinsky scandal. Most importantly, from an ethical perspective, the President made ill use of so many people: His secretary, staff, Cabinet officers, trusted advisers, and even his wife were all called upon to lie on his behalf and in the interest of such a low matter. Clearly, something interesting had happened in the body politic when activities of this sort, occurring in the most public place in the country - the White House - and in the office "part" (not the residence "part"), are covered automatically by a claim to "privacy." "Our laws protect privacy," one riled-up citizen proclaimed, "and what you want to do would legislate morality. You are talking about morality, not law. Law and morality need to be kept separate." Wishing I had never agreed to be a part of what had turned into an over-the-airwaves drubbing, I queried: "Well, what, then is morality to you?" Answer: "It has to do with whatever people think is right or wrong." Ah-ha, think I, he's got himself tangled up on this one, and I shot back: "So law and morality have nothing to do with one another. The law never speaks to moral questions. Would you like to try making that case to Dr. Martin Luther King?" Initial silence from caller, then a heated "Why don't you let me finish?" At that point the referee, otherwise known as the host, jumped in and did one of those above-the-fray type of riffs: "Well, now, Professor Elshtain, the caller certainly does have a point. Are we really in the business of legislating morality?" Says I: "We do it all the time."

I didn't go on to point out to my radio-land interlocutor the fact that there are presently dominant schools and tendencies within American legal scholarship whose practitioners share the caller's view of the matter. The reactions run from outright cynicism and denunciation of rule by law as nothing but a "cover" for naked power relations, to a view of the law as purely instrumental, which is a different sort of radical "devaluing" of law. Such trends and tendencies have been around for a long time. For those of us who came of age in the 1960s, blasting law as "nothing but" a cover for privilege or a sexist tool or some other awful thing was common everyday sport. Today, those everyday bits and pieces of ideology have coalesced into several powerful strands in contemporary legal thinking and jurisprudence: the law and economics school and the feminist school.