pp 3-13, 33-94, 133-51, 187-224
1: THE TWO MORALITIES
Content of chapters – because unhappy with existing literature about relation
between law and morality. Two major deficiencies:
o 1. Failure to clarify the meaning of morality itself. It is assumed we all
know what morality means! But that is not the case.
In chapter 1, I try to redress this by highlight distinction between
morality of duty + morality of aspiration.
o 2. Neglect for Morality that makes law possible. Focus on “legal
justice”, treat like alike, but little recognition that problem thus
adumbrated is only one aspect of much larger problem – clarifying
directions of human effort essential to maintain any system of law,
even one whose ultimate objectives may be evil.
Chp. 3 attempt to bring the analysis of the first two chapters into relation with
various schools of legal philosophy.
Chp4 seeks to show how proper respect for internal morality of law limits
kinds of substantive aims that may be achieved through legal rules – closes
by showing how something like a substantive “natural law” may be derived
from the morality of aspiration.
The Moralities of Duty and Aspiration
Distinction between morality of aspiration and morality of duty
o Morality of aspiration most plainly exemplified in Greek philosophy: it is
the morality of the Good life, or excellence, of fullest realisation of
o May be overtones of duty to get there, and if fail to realize fullest
capacities, he would be found wanting, not for being recreant to duty,
but for shortcoming, not wrongdoing.
o Rather than right or wrong, we have beseeming conduct.
Morality of aspiration starts at TOP of human achievement, morality of duty
starts at BOTTOM (ie, lays down basic rules necessary for society)
o MOD = Old Testament morality “thou shall”, “thou shall not”.
Condemns men for failing to respect basic requirements of social
Metaphor to help distinguish MOD and MOA:
o MOD = rules of grammar
o MOA = rules of what is sublime and elegant composition of writing.
(these are more vague that basic rules of grammar)
How would moralities view gambling?
hypothetical moral legislator would have to decide if gambling
harmful so as to refrain from engaging in it.
Would realise that marginal utility not good with gambling.
Weighing all this: MOD might conclude that men ought not to
gamble for high stakes, that they have a duty to sun “deep play”.
MOD as lawmaker: will have to face new questions, eg, what
about games that partly rely on skill etc, yes, but at no point
would there be any sharp break with methods followed in
deciding whether to condemn gambling as immoral.
Q: Is it activity worth of man's capacities? Answer: No, it’s a kind
of fetish, enjoying cultivation of risk for its own sake, not in the
pursuit of, eg, some higher artistic aim. So, gambling unfit for
MOA as law maker?: No direct bearing at all. Law cannot
compel man to live up to excellences of which he is capable.
For workable standards MOD
But MOA has pervasiveness of its implications: rules of contract
and tort, some key principles were not present in early stages of
law but now are and represents the fruit of centuries old struggle
to reduce the role of the irrational in human affairs.
Still, no may to compel reason, only seek to exclude from his life
grosser and more obvious manifestations of chance and
The Moral Scale – measure by analysing the case of abogados de accidentes
As considering whole range of moral issues, we may conveniently imagine a
kind of scale or yardstick which begins at bottom with most obvious demands
of social living and extends to highest reaches of human aspiration.
o “Somewhere along that line there is an invisible pointer where the
pressure of duty leaves off and the challenge of excellence
o War of moral argument is over location of this pointer.
o To find it, must know what is perfect life – if you accept this, then
drawing line is pointless because MOD must borrow standards from
This view has led to diametrically opposed conclusions
concerning the objectivity of moral judgments.
One side: Fact of experience that we know and agree on
what is bad, thus must follow that we have shared picture
of what is perfectly good (Platonic Socrates)
Other side: Men do not agree on what is perfectly good,
our apparent agreement of what is bad is perhaps an
illusion, born of social conditioning, habituation, and
Both rest on idea: must know good to know