The Canon: Spooner on Crimes

Lysander Spooner, "Vices Are Not Crimes: A Vindication of Moral Liberty" (1875)

In the first place, the great crimes committed in the world are mostly prompted by avarice and ambition.

The greatest of all crimes are the wars that are carried on by governments, to plunder, enslave, and destroy mankind.

The next greatest crimes committed in the world are equally prompted by avarice and ambition; and are committed, not on sudden passion, but by men of calculation, who keep their heads cool and clear, and who have no thought whatever of going to prison for them. They are committed, not so much by men who violate the laws, as by men who, either by themselves or by their instruments, make the laws; by men who have combined to usurp arbitrary power, and to maintain it by force and fraud, and whose purpose in usurping and maintaining it is by unjust and unequal legislation, to secure to themselves such advantages and monopolies as will enable them to control and extort the labor and properties of other men, and thus impoverish them, in order to minister to their own wealth and aggrandizement. The robberies and wrongs thus committed by these men, in conformity with the laws—that is, their own laws—are as mountains to molehills, compared with the crimes committed by all other criminals, in violation of the laws.

Constitutional Theory

Stanley Fish, "Does Constitutional Theory Matter?"

Rehnquist’s objection to the “living Constitution” thesis is that it licenses judges to view cases through the lens of their own value judgments and to substitute those judgments for the values that can be “derived from the language and intent of the framers.”

The job of judges, he is saying, is not to bring a moral perspective to the task of interpretation, but to first ascertain and then uphold the moral perspective they find in the text. It is not the “intrinsic worth” of the Constitution’s propositions as measured by some standard external to them that should compel us. Rather, it is “the fact of their enactment that gives them whatever claim they may have upon us.”

Statements like these enroll Rehnquist in a venerable tradition in which law and morality are regarded as distinct systems. In this tradition, called positivism, the answer to the question “what is Law” is not some grand moral/philosophic pronouncement, but the (apparently) more modest declaration that law is what has been enacted according to established and accepted procedures, Law is what’s on the books. The classic statement of this position was delivered in 1832 by John Austin: “The matter of jurisprudence is positive law: law simply and strictly so called…law set by political superiors to political inferiors.”

The question of whether or not this politically instituted law is morally good may of course be asked, but it is not a legal question. As H.L.A. Hart put it (summarizing Austin), “The existence of law is one thing; its merit or demerit another” (“Positivism and the Separation of Law and Morality,” 1958). In a famous debate with legal theorist Lon Fuller, Hart followed this line of reasoning to its logical conclusion when he argued that no matter how immoral (informed by bad purposes) we may judge Nazi law to have been, it was nevertheless law.