Copyright (c) Yeshiva University 1995.
Cardozo Law Review
ARTICLE: CRITIQUING THE LEGAL ORDER IN THE NAME OF "CRITICAL MORALITY" *
* An offshoot of the "Fourth Annual Edward J. Blaustein Lectures in Jurisprudence" (Rutgers School of Law, Graduate Program in Philosophy).
16 Cardozo L. Rev. 1599
Julius Cohen **
The moral criticism of the legal order has been a longtime sport (serious), if not an industry, for law teachers, theorists, judges, and other legal functionaries. In the process, they often reach for criteria beyond those utilized in conventional morality. Sometimes the reach "beyond" is ad hoc; sometimes it is accompanied by an awareness that it is toward a pattern of a higher-level, critical morality. The reach beyond is often triggered by a need to resolve conflicts within conventional morality. Or it is a function of the distrust of some of the sources of conventional morality, such as prejudice, unrefined "gut" feelings, the power of dominant social groups. "Critical morality" (or some such equivalent label, e.g., "higher morality") is, by contrast, deemed a social morality distilled and tamed by a special kind of reasoning that places intellectual restraints on these primitive source materials. Legal functionaries who have given currency to the concept seem to employ it in the singular sense, as a fairly determinate, comprehensive, univocal set of criteria that a reflective mind could not fail to discern. However, although there is considerable accord on the need to apply critical, not conventional, moral criteria in critiquing the legal order, legal functionaries differ markedly in their views of what these critical criteria are, or how they are to be found or discerned. A few illustrations:
(a) Roscoe Pound, in his classic work on the relationship between law and morality, stressed ...
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