Welcome to the Oxford Undergraduate Law Podcast, where we discuss the law, its relationships with society and its implications on our everyday lives.
I'm Chen.
I'm Dorothea.
And we are your podcast editors.
Today, we'll be joined by Professor Scott Hershvitz, who will be discussing some of the key ideas explored in his new book, Law as a Moral Practice.
Professor Scott Hershvitz is Director of the Law and Ethics Programme and Professor of Law and Philosophy at the University of Michigan.
Prior to this, Scott Hershvitz was an attorney advisor on the appellate staff of the Civil Division of the US Department of Justice.
Scott Hershvitz studies and writes publications on philosophical questions related to law, including the intersection between law and morality and the obligation to obey the law.
These topics influence his discussion in his upcoming book about jurisprudence called Law as a Moral Practice.
This will be published by the Harvard University Press in December 2023.
Professor Scott Hershvitz, welcome to the podcast and thank you so much for joining us.
Thank you for having me. It's a real pleasure to get to visit Oxford even virtually.
Yes, thank you.
I understand your upcoming book centres around this idea of law as a moral practice. Could you explain what you mean by this?
Absolutely. So let's first start with the idea of a moral practice because it's not a phrase I think that people are really familiar with, but they're familiar with the kinds of things that I think of as moral practices.
So the idea is that there are some things that we do in order to change the moral relationships that we have.
And that's maybe the easiest case to think about is promising. So, you know, we all signed on to record this podcast at the same time.
We signed on because we'd made an agreement in advance by email that we'd all gather at 10 a.m. my time to have this conversation.
And we said, you know, before you reached out to me, before we negotiated a time, before we said it, we didn't have a responsibility to be here. Right.
But afterwards, we made a commitment to each other. Right. So that changed our moral relationship.
And so I think of promising as a moral practice in the sense that it's a way of rearranging the moral relationships that we have.
And I think that's a guarantee that that promises are themselves moral. Right.
There's not even a guarantee that any particular promise will accomplish what it's intended to do.
So one thing I talk a lot about in the book are immoral promises.
Like so people say people in the mob might make promises that they'll work together to kill someone or extort money.
And those promises have the moral consequences that those people intend. But I think typically they intend to change their moral relationships.
And that's what I'm interested in when I think about moral practices and promises, I should say, aren't the only ones. Right.
So I make rules for my kids in my house. Right.
I tell them that, you know, you have to finish your homework before you play video games or, you know, we allocate responsibility.
We don't have to question who's going to wash the dishes. And, you know, like these, you know, edicts or orders that are sometimes issued are also ways of restructuring what rights and responsibilities the people in our house have.
Right. And so then we could, you know, add more examples right to our list of moral practices.
Sometimes, you know, we offer forgiveness. Right.
And we say, you know, I don't know if you're going to forgive me, but I know that there are people who've wronged us may owe us some sort of redress.
And we say, I don't know. It's OK. I forgive you. Right.
That's a practice that releases a claim that you might otherwise have against someone.
And so what I sort of start in the book by doing is saying, look, we've got lots of practices in our lives that we use to reshape the moral relationships that we have.
It's that our legal practices are among those practices.
So the idea, just to give you a kind of point of contrast, it's common among philosophers of law to think that what what our legal practices do is generate an alternative normative system, something that's different from morality.
It's separate from morality. And, you know, it might conflict with morality or it might match up with morality.
But our legal practices bring about kind of new set of rights and obligations that are distinctively legal.
And the point of my book is to invite people to think about it differently, to see our legal practices as ways in which we might try and restructure our moral relationships.
Right. To see it as something like promising or issue ordering orders in your household or even sometimes forgiving, say, when we grant clemency.
So the idea when I say laws and moral practices that law legal practices are tools that we use to change our moral relationships.
Thank you for outlining this idea and it seems your book is essentially an invitation to view the law from this compelling and original perspective.
However, there could be issues in framing the law around this somewhat loose idea of morality, even though it is so intertwined with the everyday examples that you've laid out. So why exactly should we conceptualize the law in this way?
So I think there are a number of advantages to thinking about the law this way. And let's just walk through a few.
The first is I think that it helps explain both the significance that we accord the law and the second is it helps explain some of the conflicts that we have about the law.
So let's think about the significance that we accord the law to start.
So most people are accustomed in lots of contexts and trying to understand what their responsibilities are in the world to looking to the law to settle, say, what they might owe someone that they've been in business with or what they might owe in taxes.
And lots of people, not everyone, kind of move through the world thinking that I ought to discharge my legal obligations. And there's a long conversation in philosophy of law about whether this attitude is warranted when people have it and just what would make it the case that it's warranted.
And I've always been a bit perplexed by the conversation. So like if you sort of think about like the sort of writing that's famous under the heading of is there an obligation to obey the law, which traces back to Plato's Crito.
But like the conversation continues all the way through the 20th century with Hart and Rawls and Dworkin all offering sort of novel approaches.
Some people think we're obligated to obey the law out of gratitude for what the laws provided us. Some people think that we're obligated to obey the law because we have duties of fair play.
If we're getting benefits from the law, we should return.
You know, we should confer benefits on others through offering our obedience.
Rawls suggested that maybe we are obligated to obey the law when the law is comprised of just institutions.
But the issue is that it's kind of widely recognized among philosophers of all that most of these arguments aren't very good.
They don't go very far in explaining why in the circumstances of actual legal systems, people would have obligations to obey the law.
So just take gratitude as as an illustration.
You know, some of us may have reasons to be grateful for what the law has applied to great many people in our society.
They probably don't. It may be on net not a good thing for them.
But even if you just restrict your attention to people that have been done, who the law has done well by, right, it's not obvious that even if they should feel gratitude, that the best way to express their gratitude is by offering obedience.
It's not a customary way of expressing gratitude. And it's not clear why, even if it was a good way of expressing gratitude, it's not the only way of expressing gratitude.
So it's not clear why you'd be obligated to obey the law. And we could walk through.
There's a very famous article by M.B. Smith called Is There a Primal Fascia Obligation to Obey the Law?
Where he walks through all the standard justifications for an obligation to obey the law and he finds them wanting.
Similarly, John Simmons has reached the same set of conclusions.
And, you know, Joseph Fraz was skeptical, right, that in the circumstances of modern legal systems, that law have authority of near the scope that they tend to claim.
Right. So now you could think that's fine. It just turns out that the law claims that we're obligated to obey it, but we're not really.
And people are making a kind of moral mistake when they look to the law to settle what their obligations might be.
But I think there's a different way of looking at the problem. Right.
It's to imagine that our legal practices are part of our moral lives. Right.
So that it's not something separate. Then we then ask, oh, hey, there's something separate over there. Should I do what it says?
It's rather to imagine it seems quite plausible to me that all of the goings on in our legal system, acts of legislation, acts of adjudication, acts of regulation, are the kinds of things that morally matter.
They really are capable of directly restructuring our moral relationships and that what we're doing when we look to the law is we're looking to the stuff that we think makes a moral difference.
And not for like one particular reason, not for reasons of gratitude or fair play, but for a constellation of reasons that may differ depending on the bit of law that we're talking about and the role that it plays in our lives.
And in the book, I try and explore that all in great detail. That brings me to the kind of second reason I think this is an attractive way to look at law.
We often disagree about what the law is. Even when we can agree on all the social facts, we agree what the statute says, we agree what decisions have been made in the past, say by courts, but we still disagree about what our legal rights and obligations are.
And I've always thought that's a little bit mysterious if you think that the content of the law is just determined by social facts. If we agree on the social facts, how is it that we could disagree about the content of the law?
The view I'm offering I think offers a kind of explanation. It's the morality is something we disagree about frequently, deeply, frequently, persistently, even if we agree on who said what when we made a commitment to be somewhere or do something, we may disagree.
Because we've got different pictures of say the morality of promising of what's required of us. And so I think an advantage of thinking of law as a moral practice is that it helps us to get a better appreciation of the nature of many of the conflicts that we have about law.
There are moral conflicts, and that's why they're so difficult to resolve.
Yes, I can see the strength of your argument and explaining why these challenging debates about the law and morality arise. So thank you. So your argument that the law compels us to abide by moral obligations links to the ongoing debate of whether we're obligated to obey the law, which you've touched on already.
But could you just clarify where exactly your argument fits into this debate?
Sure, so I think the debate has, as I suggested in my last answer, I think the debate has kind of proceeded on a mistaken assumption, or like a misguided picture about how it is that the law would make a moral difference.
So, like the standard view is that law is a separate normative system for morality, then the question is, are you ever like directed by morality to look to what the law requires of you.
And I'm inviting people to think of the problem differently to think that our legal practices are things that directly make a difference in our moral lives, and, and to think that actually there's a chapter in the book called stop in the name of law which is about these debates about
whether we're obligated to obey the law.
To think that like people may be looking in the wrong place for the kind of moral difference that law makes so I mentioned MB Smith before he says look I don't think there's an obligation to obey the law.
And if I did.
If there was such an obligation I think it would be a relatively trivial obligation because the law doesn't really affect what's morally right and wrong.
And I think he's mostly right about that last point that the law doesn't really affect what's morally right and wrong, all that much. Right, so just think what he has in mind for a moment.
He thinks that, you know, if you take an act that's really wrong, like say murdering somebody, if there turned out to be some loophole that a particular form of murder was was not unlawful in a community that that it would still be morally wrong and it wouldn't
be any less morally wrong for the fact that say a loophole left that form of murder uncovered.
And, and I think he's, I think he's right about that I think the law, you know, especially in cases of what lawyers call Malik wrongs that are Matt Malin say are things that are wrong in themselves quite apart with the law has to say about them
the law doesn't really change the moral significance of those acts.
There's a lot of malice prohibitive things that wouldn't be wrong but for the fact that the law says they are so think like the law tells you where you might, you know, where I live in Michigan the law tells you where you can park in a snowstorm.
Right, so the streets can be kept clear for the plows to come through and it wouldn't be wrong to park your car in a particular place absent the sign that says don't park there but once the sign is there, then, then it does become wrong.
But again as as Smith and others point out it's wrong not so much because the law says so but because of the sort of like complicated social practice that depends on you're not being there you're going to disrupt a lot of people's lives if you're blocking the snowplow
coming through so the, the legal directive is playing a role but it's really like the fact that you'll cause problems it's giving people a reason not to do it so I think I'm on board with Smith's thought that the law doesn't dramatically
change.
In most cases, what it's right or wrong to do.
But where I sort of want to say something different than what's been said in the literature before is I think that that's not often with the law is trying to do it's trying to rearrange our moral relationships in different ways and so in the book I make my case through a case.
It's a case of a teenage boy who was prosecuted for sexual assault a crime in a crime in in his state, which I think was Oklahoma.
And he was called forcible sodomy he had forced oral sex on somebody who was unconscious due to intoxication. And it turned out there was an error in drafting the statute. Right.
It prohibited forstoral sex in lots of contexts, but it left out a prohibition on forstoral sex and somebody who was intoxicated and therefore not in a position to consent, and that that provision appeared in other places in the sexual assault statutes,
and it had been a different type of penetration it would have been unlawful but just because of what looks like a cop like like literally a copy paste error in a computer somebody forgot to copy all of the provisions from one section to another.
It turned out that there was a kind of failure of the principle of legality here that the boys conduct though, though morally wrongful and deeply so didn't constitute a crime in the state of Oklahoma and so when charges were brought against him he moved to dismiss them
and the courts dismissed them and that was more or less the universally agreed upon right result in his case but but more or less instantly the state legislature sprang into action, and they passed a law prohibiting forcing oral sex on someone who was intoxicated.
And, and one question I asked in the book is, well what difference did that law make.
The answer is like, it didn't make what the boy had done wrongful it was already wrongful. It didn't make it any more wrongful than it otherwise would have been like I'm not inclined to blame him any him any less for what he did then I would blame somebody who was convicted
under the same convicted of the same act today now that that statute has been enacted.
But something I think did change about the moral relationship between the boy and his community. I think in enacting that law.
The community removed a right that the boy had not to be punished for conduct that hadn't been announced and advanced as criminal. Right, so this is I think a law that made a significant moral difference.
It made it the case that he was obligated not just to his victim but object related to his community, not to commit this act, and in such a way that they would have the standing to punish him.
If he did. Right so part of what I'm trying to do in the book is shift our attention. Right.
I'm asking questions like, you know Smith's question he wants to know, does the law affect what's morally right and wrong to do, and I think sometimes but often that's not the effect it's trying to have it's not trying to make what the boy in this case did wrongful
rather it's trying to give the state the moral standing to punish him for it. I think that's what lots of criminal laws trying to do.
Thank you for explaining this, and could you examine in further detail your argument that legal practices succeed in rearranging our moral practices.
I think it's really important to say, sometimes they do. And sometimes they don't. And I don't think it's an all or nothing switch I don't think it's like, oh, in the UK, or in America, things are going good or good enough and so we're obligated to do all the law requires, or, you know, whereas,
in other countries, you know, Taliban Afghanistan things are going relatively poorly and so nobody's obligated. I don't think it works like that. Right, I think different legal practices rearrange our moral relationships in different ways, and for different reasons
so let me give you, you know, I just gave you one example with this with this principle of legality case but I'll give you another example from like my legal home is tort law, it's been lots of changes in in tort law over the 20th century like what sorts of wrongs are we going to recognize
what sorts of wrongs are we going to provide redress for. So I was just talking to my tort students about the abandonment of water called the amatory towards towards that were involved wrongs and romantic relationships so there used to be sort of three kinds of
wrongs that were recognizable and redressable through tort law. One was called criminal conversation. That's a claim that you would bring a typically a man would bring against another man who was having an affair with his spouse. Right and then there was a claim called alienation of
affections. Right that's a claim that you would bring against somebody who was, you know, sort of maybe persuaded your spouse to leave you is often brought against in laws that were interfering in a romantic relationship. And then the third was a claim called seduction that was often
brought by the parents of a young girl, typically against an older man who had had sex with her outside of marriage. And so for a long time, the law treated these things as wrongs and not just as wrongs but as wrongs that were redressable. These laws were abandoned for a variety of reasons.
One is like already embedded in the explanation I give you can see that they were gendered in various ways, and really relied on a kind of propriet like a view that that men had a proprietary interest in their wives and in their daughters, and as people became
uncomfortable with those ideas and wanted to reject them. Different jurisdictions did different things some jurisdiction said we're going to have a gender neutral version of this a woman could sue the woman who has an affair with her husband for say criminal conversation,
and many more jurisdictions and eventually almost all of them just said you know what the law doesn't belong in this business. Right, it's not that it's not that it may not be morally wrong to commit adultery, or that it may not be morally wrong to try and, you know, persuade
people to leave their romantic partner maybe it is maybe it isn't it probably is highly dependent on the circumstances whether anybody's misbehaving in those sorts of circumstances, but in most places, courts and legislatures came to think this is just isn't a good
business for the courts to be involved in, like it's not clear that courts can offer good remedies, it's not clear that that's improving people's relationships by getting involved in them in America at least in most places these torts were eliminated
by statute. And, and I think those statutes that eliminated these causes of action. They rearrange people's moral relationships, again not by changing you know like what's fair and love and war right like not by making it okay to commit adultery or not making it
okay to commit adultery, but it, but before the abandonment of these statutes right if somebody had slept with your spouse, then you had a right to a right against the court to hold them responsible and right against them that they would pay you damages.
And so like the adoption of these statutes removed a right which people had previously had. And we can spin out lots of examples places where we make changes in the law, and that changes the, the kinds of claims that we can make it against each other.
And, and what other people owe us.
You speak of the law as succeeding in rearranging our moral practices, is it a tool possible for moral practices to rearrange legal practices. If so, would the law be more desirable as a result.
Yeah, so, you know, I think you want to be able to think about the relationship between law and morality in two different directions. Right so we've been talking mostly about the way that law shapes what morality requires and there's a section in the book titled law
law as a source of morality. And, and the thought is that sometimes in order to know what we morally owe each other. We need to look to what our legal practices are and and and try and figure out how they've shaped our moral relationships.
But you can also look at things from the other direction. And you can ask, how does morality shape our legal practices, and I think it shapes them in all sorts of ways, in part because what we're trying to do through many of our legal practices is is enforce some of the
moral rights that we have. And so just think about like tort law, again, or you can think about contract law just think about any part of the private law really right you might think others, some agreements that we make that morally ought to be kept, or some ways
in which we might injure each other, for which we ought to provide moral redress, and then as a way of, and then as a way of making sure those things happen as a way of making sure that redress is offered or that agreements are kept.
One thing we can do is create legal institutions, like contract law, or like tort law, through which people have a formal mechanism of bringing claims and employing the coercive power of the state to make sure that other people are meeting those obligations.
And one thing we should expect if that's how these institutions are being used is that they'll map maybe not perfectly but to a large degree on to what we think are what our moral sensibilities are about when people are say wrongfully injuring each other and what's owed as a consequence,
and, you know, as I tell my tort students often right you can feel your way through this institution. Right, even if you don't know much about what the legal rules are by asking hey whose responsibility do I think this is and what do I think they should be required to do
about it right the law has its kind of own concerns once you start to institutionalize things and try and make them regular across lots of cases. So, you're like pre pre legal moral sensibility may not give you a perfect guide to what the law is going to do with any particular
case, but it's going to give you a really good start. Right, and so part of what I want to invite people to do is to sort of think in both directions to think about the way morality shapes law, but then also to think about the way law in turn shapes morality.
We've already touched on how this idea of law as a moral practice fits in with other areas of the law. So, does this argument explain legal doctrine such as promissory stop all and contract and assumption of the risk in taught, which seem to be underpinned by
ideas of morality and the law, according individuals with more responsibility.
Yeah, so I think that, you know, one would expect, especially in private law which is really trying to institutionalize and give us a formal mechanism for enforcing our rights against each other.
So, we should expect that most features of the law, like assumption of the risk or like promissory estoppel will have some kind of moral rationale and a moral rationale that may even pre exist the law and be compelling quite apart from the law.
So that, you know, think about assumption of risk, right, if you see a danger and voluntarily and choose to encounter it, then we might think it's inappropriate for you to complain about being injured by, by that danger.
And then later on. And so, you know, as I said, like, I don't think the law fully tracks our pre legal moral sensibilities, because in the institutionalization of things, right, you somehow you sometimes have, you know, special concerns about hearing
and trying to get consistent answers. And maybe courts are good at getting sometimes some kinds of information and not good at getting other kinds of information so they tailor their doctrines to the kinds of information that's going, they're going to be available to them.
But, you know, to a to a first approximation. I think that there are large swaths of the law that were the doctrines are well explained by what we take our moral rights and responsibilities to be and would take them to be quite apart from what the law has to say.
So even though these areas of laws may be underpinned by ideas relating to morality or more responsibility, such as promise keeping. Is it true to say that upon institutionalization through legal practices, these concepts become watered down.
Yeah, so,
you know, I sometimes teach my students. A case from Massachusetts, where a couple college age college age students that are having sex, and the opinion is kind of funny because the judges are clearly uncomfortable describing what the couple is doing, but they have to find a way to
describe it. It's nothing out of the ordinary. All that happens is that, like she kind of crashes into him awkwardly and causes him a significant injury which I won't describe.
And the court says something rather incredible, right, as a like as a result of its discomfort. They say that in the state of Massachusetts, if you're having sex with somebody, you don't owe a duty to take ordinary care to protect them against injuries.
And when I say that's rather incredible I just mean like how could it be that you could be engaged in this like highly intimate act with somebody and owe them no duty, like to take care for their well being.
So what the court means is, is not that you have no like moral responsibilities to somebody that you're having sex with. What they mean is that we're not going to use this kind of institution, the law to review the question, whether you took adequate care for somebody
who's having sex with them. Now I'm not sure actually that was the right result. I think it was driven by their discomfort and their concern about calling a jury in and having this couple describe how they were having sex so they could figure out whether she was behaving reasonably or unreasonably
and I get why that made them feel a little bit uncomfortable but it may be that, you know, sometimes you have to have lawsuits about uncomfortable subject matters.
But again, like it's, it's an illustration of the fact that sometimes the question is, it's being asked in a court is not, what were the moral rights and responsibilities of this, of these parties, but rather, what are the moral rights and responsibilities that we should use this institution to enforce.
And in Massachusetts, they decided, even though we think you have to take ordinary care when you're driving, and we're going to adjudicate claims about that we're just not going to adjudicate claims about whether you took ordinary care when you're having sex.
So given to account the institutionalization of the moral attendance underlying these legal practices. Is it then possible for specific moral theories to have a direct implication on or rearrange legal practices.
So, I think that many of our legal practices are immoral. In the same way that many people make a moral promises I mentioned you know like mobsters making promises to each other, right at the outset, and America we have a massive problem with mass incarceration
and we conceive of ourselves as fighting a war on drugs and we lock people up for shockingly long periods of time for oftentimes offenses that that didn't cause an injury to anyone and you know we could multiply other moral practices that are, are immoral.
And, and I think when we have a moral practices we more sorry when we have immoral legal practices, we ought to improve them. Right. And that, like philosophers and and social critics can can lay bare the problems with our legal practices and and help us to see the
possibility of adopting better ones and actually like, you know, you know, I tend not to think that like, you just want to take a moral moral theory off the shelf and be like oh for you, utilitarians will, we would do x or y or z or for contains
we would do something. I think like you want to look to, like, what particular moral problem are we trying to solve, and what are the problems with the way that our legal practices are working, and, and then try and tailor better solutions from there but I suppose
my answer is, there are absolutely endless opportunities to improve the law morally, even in places where it's good enough that it's making a difference and changing people's more relationships.
It can, it can almost always be improved substantially.
Yes, thank you. And I think the relationship between reconciling the law and morality makes a lot more sense on that basis.
It seems that the ability for the law to rearrange more practices means lawmakers would have to make decisions as to what constitutes correct moral behavior.
Is this a problem given the fact that morality is inherently subjective.
Well, I think I want to push back on the premise that morality is inherently subjective morality is something that we just disagree about and something about which we have different opinions and as I said I think that's part of the explanation of why we sometimes disagree
about what our legal rights are but I don't think the fact that we have disagreements or even that our disagreements are sometimes shaped by our different backgrounds and experiences indicates that the enterprise is inherently subjective.
And I want to distinguish, you know,
like, you know, two different kinds of disagreements that we might have. So I'll use an example that I sometimes borrow from my Michigan colleague Don Herzog who imagines that you're standing in line at the ice cream shop, and, and you're about to order vanilla ice cream maybe
you've even said I'd like vanilla, and then the person in the back of the line says vanilla, that that's awful you shouldn't order vanilla. And you turn to him and you say why.
Now what you like you can imagine two different kinds of responses. Right, one might, one is, he might say, Oh chocolates obviously better. Right. And this feels like a kind of difference in taste.
Right, that, you know, like, you might like chocolate better and I might like vanilla better. And there's, there's nothing to be said.
Beyond that, we each have these different preferences. It's not like one preferences objectively better than another I don't have to offer you a justification of the fact that I like vanilla better and you're making a mistake or the guy behind me is making a
mistake when he demands that I ordered the thing he likes rather than the thing I like. Right, but, but suppose when I turned around is, is he's objective to my ordering vanilla.
Suppose he says something different. Right, suppose he says, like it's awful to order vanilla because like the conditions under which vanilla beans are harvested are really oppressive to the workers they're kept saying conditions that approximate slavery now.
I have no idea whether this is true I hope it's not just but just take it, take it that that's his objection for a moment. Right now he said something really rather different.
Right. He's made a kind of moral claim that one ought not eat vanilla, because it's been makes you complicit in these practices that are oppressive to other people. And I think if I'm going to persist then right, I do offer some, I do need to offer some kind of justification
for what it is that I'm up to maybe I'll disagree with his facts maybe I'll say oh no you're out of date and this place deals in fair trade vanilla, or maybe, you know, maybe I'll have a kind of moral view that even if that's happening there it's not my responsibility,
or maybe, right, I should be moved by what he says I should think, oh my gosh I didn't realize but now that you've told me right, what's going on.
I need to adjust my behavior. Right. I don't think that that moral objections moral claims are matters of taste, about which we say hey you've got your view and I've got mine.
I think that that their demands that we take on each other because we think there are good reasons to make those demands reasons that other people should recognize, and that when we disagree the proper thing to do is to work together to figure out what
reasons we have, and who's right or wrong. And actually our moral debates tend to presume that there could be right and wrong answers, even though we're often having trouble just agreeing on what they are.
Thank you for this clarification. You've touched on this idea already but how does your argument align with the existence of immoral laws or practices.
Yeah, I think in the last answer, I talked a little bit about this. So in the same way that I think that immoral, like, so I think promises are a moral practice, but that doesn't mean all practices are moral.
I mean that every particular promise is going to actually succeed in what it's intended to do it's not necessarily going to succeed in rearranging people's moral relationships.
I think the same is true of law that that legal practices are intended to rearrange moral people's relationships but many of them are immoral, and for that reason fail to rearrange people's moral relationships.
So in the country, I live in for a long time, the legal practices purported to recognize some people as the owners of other people. And I think there's no set of practices that you could adopt that would make it the case that some people owned other people.
Right, so I think that these folks were kind of participating in a mass delusion or confusion. They acted as if some people had property rights and other human beings that they just didn't.
Right, so I want to be crystal clear in saying that laws and moral practice the claim is not right that law is always moral or that always makes the moral difference that's intended or the rights that legal institutions recognize are always rights that individuals actually have.
But I want to say like the same thing happens in our moral lives like the mobsters make promises to each other and then they recognize each other maybe as having rights that they don't actually have and they proceed accordingly.
So, so the claim is not that laws and moral practice means that all our moral practice all our legal practices are good ones to have and they're making the moral difference that they intend I think nothing could be further from the truth, and nevertheless, I still think
it's valuable to see law as something that is intended to make a moral difference in our lives, and to see our legal conflicts as conflicts about just what rights and responsibilities we have and what difference our legal practices have made in, in, in giving us those rights and responsibilities.
Professor Hurtvitz, thank you for taking the time to speak on the podcast today.
Oh, it's absolutely my pleasure to be here I really enjoyed the conversation.
That was Professor Scott Hurtvitz speaking with us on the laws and moral practice.
For more legal writings and discussions on other topics, visit the OUULJ's blog and read our annual publications.
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