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COPYRIGHT 2008 Harvard Society for Law and Public Policy, Inc.
In thinking about the government's proper role in promoting morals, it is helpful first to understand the nature of the disagreement. Part I of this Essay examines what is commonly meant by--as the great Lon Fuller described it--the "morality of law." (1) Following Professor Fuller's framework, this Essay distinguishes between two very different moralities of law: the "morality of duty" and the "morality of aspiration." (2) The morality of duty consists of the basic proscriptions--against murder or theft, for example--required by any governmental authority. (3) The morality of aspiration, however, is a different matter altogether. It comprises the rules associated with promoting virtue. (4) Part I concludes by recasting government's role in promoting virtue, in light of Professor Fuller's insight, as an attempt to promote a specific type of morality: the morality of aspiration.
Part II explores the wisdom of giving the government the role of regulating the morality of aspiration by asking why there is an apparent inclination to legislate virtue. The Essay concludes that this inclination owes more to history than to nature and can be traced to the merger of the state and the church in Tudor England. "Aspirational morality" was once the exclusive province of the church, outside the jurisdiction of the state. King Henry VIII, however, saw this separation of church and state as onerous because the Church repeatedly exercised its freedom from his control by condemning his adultery as "immoral." (5) To correct this state of affairs and facilitate his own "affairs," King Henry commandeered the responsibilities of the Church and made morality the responsibility of the State.
Finally, Part III suggests that it is a mistake to look to government for moral guidance, even in the rare case when a society can agree upon moral principles. There is no reason to assume that democratic governments are virtuous in theory, and there is good reason to believe that they fail to reflect popular concepts of virtue in practice.
I. LON FULLER'S DICHOTOMY: THE MORALITY OF ASPIRATION VERSUS THE MORALITY OF DUTY
Those who characterize law as a moral enterprise are undoubtedly correct. It is important, however, to determine at which level it is appropriate for morality to drive the law. Professor Lon Fuller distinguished between two different types of morality with which the law deals: the "morality of aspiration" and the "morality of duty." (6)
The morality of aspiration is that conception of moral principles to which humans ought to aspire (7) It is "the good life" of virtue, to which Professor Barnett has referred. (8) It is the "higher" standard of morality, to which both churches and individuals hope to conform, and which people...
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