Make the Law Moral But Not Yet

The late, legendary San Francisco Chronicle columnist, Herb Caen, used to say that “things aren’t as good as they used to be, and they never were.” There was a time when people had far less need than now for a book making the case that Law is a Moral Practice (2023). The title of Scott Hershovitz’s refreshing book encapsulates his core thesis, which he restates with different emphases: “law is a moral practice, in that it aims to adjust our moral relationships”; “When I say that law is a moral practice, I mean that we employ legal practices in an effort to adjust who owes what to whom”; and, “legal practices are tools for adjusting our moral relationships, and they are typically employed for the purpose of doing so”. People once upon a time didn’t need to be persuaded of any of this because, in general, people understood law as morality. They understood, in various ways and with various internal tensions, that when people engage in conversation and argue about what the law is, “in court and out”, they are engaging in a practice that is an aspect of the characteristic activity of rational animals according to which they collectively deliberate about individual goods and the common good and set the conditions of the possibility of the achievement of some of those goods through positive law.