The Online Library of Liberty

A project of Liberty Fund, Inc.

• Associate Editors
• Editorial
• Bibliographical Essay: Ellen Frankel Paul, Laissez Faire In Nineteenth-century Britain: Fact Or Myth?
• I: Legal Philosophy
• The Minos: What Is Law?
• Obedience to Law
• Moral and Legal Justification
• Early First Amendment Theory
• The First Amendment & Freedom of Expression
• The First Amendment and Religion
• The First Amendment Vs. the Cpi
• The Economics of Strict Liability
• The Rule of Law In American Politics
• II: Political Analysis
• Society, State, and Right In Proudhon
• Human Rights and Political Change
• Carter's Human Rights Policy
• Locke's Tolerance: Prudence Or Right?
• Political Intolerance
• Hayek: Reason, Relativism, and Liberty
• Hayek On Coercion and Freedom
• “advanced Liberalism” As Managed Capitalism
• Common Good & Public Interest
• Uncrowding the “commons”
• Milgram: Obedience, Authority, & Legitimacy
• Syndicalism & “the Servile State”
• The Parisian League
• Conservatism In Spain
• Soviet Intellectual Orthodoxy
• The Clergy & the American Revolution
• Russian & American Defenses of Servitude
• Croce's Hegemony: How to Win Minds
• III: War and the State
• Just War and Rights
• Just Wars Vs. No Wars
• Walzer & Just War
• Wartime Propaganda Tactics
• Iran, Oil, and the Cold War
• The State and Oil Policy
• San Francisco & the Military Complex
• Protectionist Assaults On Developing Countries
• Government Military Behavior
• IV: Political Economy and Theory
• Three Kinds of “capitalism”
• Adam Smith: Economic Utilitarian
• Roepke: Laissez Faire and Social Order
• Government-induced Boom & Bust
• Austrian Vs. Neoclassical Methodology
• Professor Friedman's Instrumentalism
• Milton Friedman's Critics
• Entrepreneurship and Justice
• Externalities & Government Intervention

Moral and Legal Justification

Roger Pilon

• Hoover Institution, Stanford University

“On Moral and Legal Justification.” Southwestern University Law Review 11(4)1979:1327–1344.

We need to analyze the process of reason-giving on the level of both morality and law. We then should describe the flaws in justificatory approaches currently employed and sketch the kind of argument which would provide rational justification for moral and, in turn, legal conclusions.

Since John Austin's nineteenth-century analysis, a large part of Anglo-American jurisprudential thought has discerned little connection between law and morality. On the whole this separation has been as sound and useful as the more basic distinction between science and ethics. Nevertheless, the distinction is not air-tight, considering that law is ordinarily the encoding (with sanctions) of some ethical system.

With their traditional aversion to philosophical issues, lawyers have tended to avoid confronting some of the real difficulties involved in the rocess of justification—problems of infinite regress, circularity, the connection between facts and morals, etc. Whether moral judgments can be termed true or false has by itself vexed the best minds of the past two centuries, leading many to a skepticism which sees moral doctrine as having emotional or hortatory value, but lacking the dimension of truth.

Refutations of traditional natural law, utilitarian, or economic approaches which were surveyed would not necessarily abandon us to the no-man's-land of moral skepticism or to the vagaries of sentiment. On the contrary, we might uphold a rational justification for human rights based on generic features of human action as developed recently by Alan Gewirth. According to this argument, the murderer, rapist, or robber involves his victims against their will in a transaction with himself. He, on the other hand, is acting voluntarily. By acting conatively, the criminal implicitly claims rights to act voluntarily and purposively. Because he necessarily accepts these right-claims for himself (they are rooted in his actions), he must implicitly grant them for every other actor as well. Otherwise, he will contradict his own claims.

In completed form this argument would justify rights to non-interference in terms of the property foundations of our action; rights to voluntary association defined by terms mutually agreed upon; and rights to rectification if involuntarily involved in an association. None of the modern “social and economic” rights can be justified by arguments based on strict reason. “These conclusions, may not always be pleasing to our sentiments, but at least they can be justified, against the claims of the skeptic —and indeed, against those who would use this skepticism to violate our rights.”