Title

The Deep Structure of Law and Morality

Abstract

This Article argues that morality and law share a deep and pervasive structure, an analogue of what Noam Chomsky calls the “deep structure” of language. This structure arises not to resolve linguistic problems of generativity, but rather from the fact that morality and law engage psychological adaptations with the same natural function: to allow us to resolve social contract problems flexibly. Drawing on and extending a number of contemporary insights from evolutionary psychology and evolutionary game theory, this Article argues that we resolve these problems by employing a particular class of psychological attitudes, which are neither simply belief-like states nor simply desire-like states, though they bear affinities to both. The attitudes are “obligata.”

Obligata breathe life into our moral and legal practices, and have a specific structure. They blend agent-centered attitudes toward persons with attitudes toward shared standards for action as producing reasons that exclude some arising from personal interest. Obligata are “judgment-sensitive attitudes”: reasons can be sensibly asked and offered for them. They incline us to react critically to deviations and perceive these reactions as warranted. Obligata nevertheless sensitize us to the standard excuses, thereby allowing us to mend our relationships after some seeming breaches. We express obligata in the special normative terminology that morality and law share, including in contexts of discussion and dispute that can become incredibly charged. In these interactions, obligata allow us to meaningfully disagree, and sometimes thereby reach consensus, even when our resolutions are not traceable to any particular reasons we antecedently accepted. This talk thus engages underlying psychosocial mechanisms that can—in the appropriate social and political circumstances—help us maintain sufficient agreement over what we owe to one another to live well together. Obligata thereby allow us to enjoy our lives together. Finally, it is possible that our moral and legal judgments supervene on natural facts because there are natural facts—about what moral and legal rules would conduce to all our objective individual interests in the right way—that partly explain the shape that morality and law take in our lives.

The structure of obligata is the deep structure of morality and law. This suggests that much of the legal literature—including familiar descriptive and normative accounts from law and economics scholars—have been presupposing a psychological picture that is deeply at odds with how we naturally think about obligation. Morality and law do not arise from, and could not be sustained only by, separable beliefs about the world and preferences for states of affairs. The challenge raised here runs deeper, however, than recent empirical work showing we deviate from instrumental rationality in numerous, systematic ways. Our capacities to reason instrumentally may not figure very centrally at all in our moral or legal practices, and we may necessarily misunderstand these normative phenomena if we keep trying to shoehorn them into that model. To understand morality and law, we must instead understand how our distinctive capacities to identify and respond appropriately to obligations function.

Disciplines

Comparative and Foreign Law | Economics | Jurisprudence | Law | Law and Economics | Law and Psychology | Law and Society | Public Law and Legal Theory

Date of this Version

March 2005