In this context, it is worth addressing the thesis propounded by Peter Cane in his recentMaccabaean Lecture. Although Cane rightly
doubts that Hart’s four formal features clearly
serve to distinguish morality from law, he contends that a fifth feature mentioned by Hartplays a pivotal role in doing so. Hart invokes this feature when he explains why the very notion of change by legislative fiat is ‘repugnant to the idea of morality’: ‘This is so because
we conceive of morality as the ultimate standard by which human actions (legislative or
otherwise) are evaluated’ (p.230). This thought echoes the conclusion of the preceding
paragraph, but it needs to be handled with some care. If the line of argument pursued in thissection is correct, the ultimacy of moral standards cannot consist in their being
underived
from any other, background normative standards. On the contrary, my contention has beenthat moral standards are in significant part derivative from reasons reflecting human interests.
But this is not how Cane interprets the ‘ultimacy’ of moral standards. Instead, for him, it
consists in the fact that legal standards are always subject to moral assessment and, in anysuch assessment, moral reasons always t
rump any conflicting legal reasons: ‘when a moral
reason for action conflicts with a reason for action derived from the law, the moral reasons
trumps the legal reason’.
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I think the first half of Cane’s thesis is importantly correct, but that
the second, trumping thesis, misconstrues its significance. The ultimacy of morality does not
licence an inference to its supremacy in practical reasoning. A motorist’s reason to stop at a
red traffic light is a reason derived from the law; specifically, it is a moral reason that exists invirtue of a law requiring motorists to stop at red traffic lights. Now, the motorist may wellhave a conflicting moral reason not to stop at the red light, say, because running the red lightwill enable him to arrive at his ailing mot
her’s bedside sooner
. However, it is extremelyimplausible that the independent moral reason must inevitably triumph in this conflict withthe law-derived reason.
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Nonetheless, the core of truth in Cane’s argument is that the
normative significance of the law is everywhere determined by background moral standardsthat are not themselves the product of law. And this will be so even when law-derived reasonsdefeat independent moral reasons.