Stuntz & Skeel on Legal Moralism

William Stuntz (Harvard) and David Skeel (Penn) have posted a new paper, "Christianity and the Modest Rule of Law," which is their contribution to a "Law and Religion" published by the University of Pennsylvania Journal of Criminal Law.  It's well worth a read.

Stuntz and Skeel open with the observation (or, perhaps, the claim) that "[t]he central commitment of American government is to legality," and they then set out five things -- each of which is familiar -- that this commitment is supposed to mean.  In their view, though -- and particularly in the context of criminal law -- the "rule of law is honored in theory but widely ignored in practice."  And, they believe, our failure to adhere to legality norms owes a lot to law's misplaced ambition to "inspire, to express our deepest values, to shape our identity", and to "teach."  In fact, they contend, "[g]ood moral codes make for bad legal codes.  Laws that aspire to teach citizens how to live . . . are likely only to teach lessons in arbitrary government and the rule of discretion."

The heart of the paper, it seems to me, is a bracing critique of legal moralism in "white collar" criminal law, and their claim that -- in part as a result of legal moralism and "expressivism" -- the "federal criminal justice system regularly violates" rule-of-law norms (i.e., by allowing too much room for prosecutorial discretion, through vague criminal prohibitions, and by focusing on "intent divorced from content").

Near the end of the paper, Stuntz and Skeel write this:

Perhaps the lesson is this: Law can indeed teach, but only when its chief object lies elsewhere. In governance as in life, most people learn by example. Moral messages are more likely to be received, and less likely to be garbled, when the message is acted out, not just written in code books and case reports.

All of which is to say that law works best when its ambitions are modest. Humility turns out to be a better regulatory strategy than arrogance. Identifying the most destructive wrongs, doing so in terms that allow for fair, accurate adjudication, matching the scope of the criminal code to the resources of the police forces and prosecutors’ offices that must enforce it — these are achievable goals. Also worthy goals: a society whose criminal law meets these objectives is likely to have a criminal justice system that controls crime and does justice. The grander ambitions our law seems to have — to define a code of proper business practice or proper alcohol and drug use, and to shape moral norms more generally — are not achievable. They are proper jobs for ethicists and philosophers, or perhaps doctors and economists, but not for lawyers and Judges.

Not coincidentally, they are also proper subjects for the moral law about which Jesus preached in the Sermon on the Mount. That law makes for very good morals, but very bad positive law.  It is a lesson our secular legal system would do well to learn.

Discussing the law of abortion and gambling, Stuntz and Skeel are hard on their fellow Evangelical Christians who, in their view, find it hard to "resist the attractions of legal moralism."  (In my view, the authors are too quick to categorize the view that abortion should, generally speaking, be regulated as reflecting "legal moralism"; one could as easily say, it seems to me, that even under the more modest "prevent harms and maintain order, but not much more" view that they appear to endorse, abortion -- insofar as it causes a harm, should be limited.)  They conclude with this:

Does the Stuntz-and-Skeel critique ring true to those who practice and study federal criminal law?  Is "legal moralism" a pervasive threat to legality norms, and therefore to be avoided?  Does the fairly sharp distinction they appear to draw between "God's law" and "man's law" seem helpful to those who work in law and religion (or to anyone else)?

[L]egal moralism is nearly always counterproductive.  In Christian terms, it is also deeply wrong.  Jesus’s definitions of adultery and murder proved that immorality and illegality cannot and must not be coextensive.  God’s law reigns over a broad empire that man’s law cannot hope to govern.  Good moral principles are often vague and open-ended, and they reach into every nook and cranny of our lives and our thoughts.  Legal principles that have these qualities only serve to invite arbitrary and discriminatory enforcement. Arbitrariness and discrimination in turn invite contempt for the law.  Moral education becomes an exercise in educating the public in bad morals.  The same thing happens if lawmakers choose a long list of rigid rules in place of vague moral principles, as our experience with trying to define and enforce corporate morality proves.  Targets of those rules focus on the rules themselves, on maneuvering through legal minefields instead of exercising moral judgment.  The law deters the very thing it seeks to promote.  It is hard to avoid the conclusion that the law must draw lines not between right and wrong, but between the most destructive and verifiable wrongs and everything else.

And mixing God’s law and man’s law may have other unfortunate consequences, distorting religious believers’ understanding of the divine law even as it distorts the public’s approach to the laws of code books and court decisions. Distortion runs, in other words, in both directions. . . . 

Conflating God’s law and man’s law thus does violence to both. It makes far too much of man’s law, and far too little of God’s. Which leads to a surprising implication about contemporary American politics: The deep divide between moralists and libertarians may be needless, the result more of theological error than of spiritual disagreement. Libertarians seek to minimize formal legal restraints on private conduct. That agenda should hold some appeal for wise moralists, at least if the moralists are Christian. After all, the rule of law is a moral good in Christian terms. And the rule of law is likely to be honored best where legal restraints are most modest. The rule of good morals, meanwhile, must be honored — if it is to be honored at all —in the hearts and minds of the citizenry.  Not in its courthouses.