Critiquing the Legal Order in the Name of “Critical Morality”

Authors

Julius Cohen, Rutgers School of Law

Abstract

The moral criticism of the legal order has been a longtime sport (serious), if not an industry, for law teachers, theorists, judges, and other legal functionaries. In the process, they often reach for criteria beyond those utilized in conventional morality. Sometimes the reach "beyond" is ad hoc; sometimes it is accompanied by an awareness that it is toward a pattern of a higher-level, critical morality. The reach beyond is often triggered by a need to resolve conflicts within conventional morality. Or it is a function of the distrust of some of the sources of conventional morality, such as prejudice, unrefined "gut" feelings, the power of dominant social groups. "Critical morality" (or some such equivalent label, e.g., "higher morality") is, by contrast, deemed a social morality distilled and tamed by a special kind of reasoning that places intellectual restraints on these primitive source materials. Legal functionaries who have given currency to the concept seem to employ it in the singular sense, as a fairly determinate, comprehensive, univocal set of criteria that a reflective mind could not fail to discern. However, although there is considerable accord on the need to apply critical, not conventional, moral criteria in critiquing the legal order, legal functionaries differ markedly in their views of what these critical criteria are, or how they are to be found or discerned.

Keywords

Criminal Law and Procedure, Common Law, Jurisprudence, Judicial Review, Judiciary Branch

Disciplines

Common Law | Criminal Law | Criminal Procedure | Jurisprudence | Law

Recommended Citation

Julius Cohen, Critiquing the Legal Order in the Name of “Critical Morality”, 16 Cardozo L. Rev. 1599 (1995).
Available at: https://larc.cardozo.yu.edu/clr/vol16/iss5/7