Moral Generalism Versus Legal Particularism: Pragmatism’s Distinction Between Law and Morals

Abstract

In opposition to legal positivists and interpretivists, this paper advances a pragmatist distinction between law and morals as an operational rather than ontological one. Ronald Dworkin’s argument, emphasizing “the sovereign importance of moral principles in legal and constitutional adjudication,” has had considerable influence on the debate among legal positivists and interpretivists. Dworkin takes the view that general propositions found in legal opinions, such as the principle “no one may profit from their own wrong” in Riggs v. Palmer, are moral principles. He concludes that moral principles may ground particular judgments. Pragmatic fallibilism insists that such propositions are distinctively legal, and that a careful examination of the case law demonstrates that particular judgments have a methodological priority and serve to limit their extension. Pragmatic fallibilism criticizes the use of overextended generals for masking particular circumstances that are made relevant by legal precedent. It holds that Dworkin’s claim is a license to use morality as a pretext while deciding without regard to particular circumstances. This may even offer the occasion for the influence of hidden subjective and ideological preferences. For the fallibilist, “moral” principles do not decide hard cases, but serve to divert attention from the very facts that make the particular case difficult, and may hide proper reasons for decision from both courts and litigants.