Citation: 9 Harv. J. L. & Pub. Pol'y 123 1986
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MORALITY, PRAGMATISM AND
THE LEGAL ORDER
ANTONIN SCALIA*
In the announced topic, "Equality, Justice and the Market," I
take the word "justice" to have a moral connotation. It surely
does not refer to whether I am deciding the rights of litigants
before me in accordance with the laws as they are written, "doing
justice" in the legal-positivist sense. Rather, it refers to
what is just in our society's economic arrangements by appeal
to some moral or natural law perception.
One would be foolish to deny the relevance ofmoral perceptions
to law. Society's moral beliefs necessarily affect its constitutional
perceptions in general and its perceptions of what
economic rights are protected by its constitution in particular.
There is no need to apologize for the phenomenon, even when
the moral beliefs spring from a theological belief. In any case, it
is useless to rail against the phenomenon because it is inevitable.
Even if one is an absolutist utilitarian and insists that the
business oflaws and constitutions is not to enshrine moral perceptions
but simply to achieve the greatest physical good for
the greatest number, the value that one places upon competing
physical goods-sexual pleasure versus economic security, or
avoidance ofpain versus preservation ofhuman life-is inevitably
affected by moral and theological perceptions. In fact, even
the question of who is to be counted for purposes of determining
"the greatest number" turns out to be an issue of moral
and theological disagreement.
Moral issues are intractable. Fortunately, however, the overwhelming
majority of issues of public policy do not rise to the
moral level. Rare are issues such as capital punishment, where
a substantial segment of our population believes one course is
morally impermissible, while the rest believe the same course is
morally permissible and pragmatically-though not morally--
required. Even more rare are issues such as abortion, where a
substantial segment of the population believes that one course
is morally impermissible and another substantial segment believes
it is morally required. The vast majority of political issues,
though often polemicized in moral terms, ultimately boil
* CircuitJudge, United States Court ofAppeals for the District of Columbia Circuit.
HarvardJournalofLaw & Public Policy
down to questions of prudence or utility, to disagreement
about the most effective means to more or less agreed-upon
moral ends. My modest contribution to the present program is
to suggest that, even though our point of departure is a morally
charged word like justice, practical utility is what we are really
discussing here.
State interference in the marketplace, or to give the rhetoric
the inverse spin, governmental correction of the effects of de
facto unequal opportunity combined with human greed, is a
purely moral issue for only two groups, neither ofwhich represents
a significant proportion of our society. At one extreme,
there are the doctrinaire socialists, who believe that the natural
and moral order of things is for all goods to be distributed
equally. For this group, the progressive income tax, for example,
is necessary not because the rich are better able to bear the
social burden, but because the rich should not be rich. At the
other extreme are the Social Darwinists, who believe that the
natural and moral order of things is for the strong and capable
to acquire and retain as much of the goods of this world as
their abilities-and presumably their inheritance-will permit,
and for the weak and incompetent to perish. This group would
not acknowledge, and indeed would positively disparage, any
private moral obligation of charity to assist the impoverished.
For both of these groups, the question of government intervention
in the distribution of economic goods is a purely moral
issue because such intervention is, in the case of the socialists,
an indispensable means of achieving what the moral order requires,
or in the case of the Darwinists, a means of producing
what the moral order forbids.
For the rest of us who believe that there is nothing evil in
varying classes of wealth, but who also believe that there is a
moral obligation to assist the less fortunate out of our abundance,
the situation is a good deal more confused, and one
must be careful not to phrase the issue too quickly in moral
terms. Moral considerations cannot be dispositive for this
larger group unless one adopts either of two unrealistic assumptions.
The first is that government cannot properly enforce
any of the purely moral values of society. But if that is so,
why can it be made illegal to torture dogs-or for that matter,
to marry two wives? The other unrealistic assumption is that
government must enforce all moral values of the society. But
[Vol. 9
then why has it not been made unlawful to fail to support one's
aging parents? And come to think of it, given that assumption,
what was wrong with the Spanish Inquisition? Unless one or
the other of these assumptions is accepted, the question of
whether the government can enforce what its proponents call
distributive justice, and the question of how much, turn upon
such prudential -and pragmatic considerations as whether the
ultimate moral goal will in fact be furthered rather than obstructed
and whether governmental intervention on behalf of
one moral value disproportionately impedes the achievement
of other moral values.
Some might seek to elevate the debate to the level of broad
governmental theory somehow based upon moral precepts by
asserting that certain socially acknowledged moral obligations
are obligations ofjustice, others are obligations of charity, and
only the former can be governmentally imposed. I have never
found that distinction helpful because I have never been able to
isolate obligations ofjustice, except by defining them as those
obligations that the law imposes. As far as moral imperative is
concerned, I hardly think that the obligation to return a phonograph
record that I have shoplifted, which would normally be
considered an obligation of justice, is more significant and
hence more appropriate for governmental enforcement than
the obligation to give a piece of bread to a starving man, which
would normally be considered an obligation of charity. I think
that it is foolish to say that the former may be governmentally
imposed and the latter may not.
Another approach to disposing of the matter on the basis of
some generalized governmental principle would be to appeal
to our constitutional tradition, which surely requires that some
moral precepts be embodied in law-for example, the precept
against the taking of innocent human life-and certainly forbids
other moral precepts from being embodied in law-for example,
mandatory worship of the Creator. But the moral
precepts of distributive justice, which is what we are talking
about here, surely fall within the broad middle range of moral
values that may be embodied in law but need not be.
It is impossible to say that our constitutional traditions mandate
the legal imposition of even so basic a precept of distributive
justice as providing food to the destitute. In the early days
of this nation, that was the task of the churches. Even providing
No. 1] Scalia
HarvardJourmalofLaw & Public Policy
a grammar-school education to those who cannot afford the
cost did not become a generally accepted task of government
until the last third of the nineteenth century. Nor can it be said,
on the other hand, that distributivejustice in our constitutional
tradition is one of those moral notions, like worshiping the
Creator, that may never be imposed by law. Redistributive legislation-some
good, some bad-has always been with us. As
examples of the good, I might cite legislation by the earliest
Congresses providing funds for the education of Indians, or
setting aside lands for land-grant colleges. As examples of the
bad, it is enough to refer to the trade-protectionist legislation
of the colonies, which, like all trade-protectionist legislation,
hurt some citizens and helped others.
Thus, to say that there is a moral obligation to achieve a particular
distributive result is not to say that government must
undertake the function. And conversely, to say that distributive
justice is a purely moral matter is not to say that government
cannot undertake the function. We are left with the usual problem
ofpolitical choice. Moral perceptions are, I repeat, relevant
to that choice. We are more likely to pursue those moral perceptions
we feel strongly about-feeding the hungry, for example,
as opposed to assuring everyone a free college education.
Having chosen to implement the moral perception, however,
we must still determine whether that is best done through governmental
compulsion. Often that turns out not to be the case.
Article 23(3) of the United Nation's Universal Declaration of
Human Rights provides that: "Everyone who works has the
right to just and favourable remuneration insuring for himself
and his family an existence worthy of human dignity ... .
That is a lovely precept and it has been embodied in the constitutions
of many of the countries of the world, including that of
the Soviet Union. I doubt whether any of those countries has
come closer to achieving that goal than the United States-and
those that have attempted to do so primarily through governmental
prescription have necessarily instituted systems of pervasive
state control and supervision that erode moral values
that are at least as important as distributive justice.
In sum, the judgment how much to tax and how much to
spend for welfare programs is almost invariably a prudential
one. Those who would exclude from the calculus moral considerations
describe a governmental process unrecognizable in
[Vol. 9
No. 1] Scalia 127
human experience. Those, on the other hand, who assert that
the mere identification of the moral evil of economic want in
the midst ofplenty conclusively determines the policy outcome
of compulsory redistribution until that evil is eliminated,
greatly underestimate both the complexity of an economic system
based upon individual responsibility and the capacity of
substantial departures from that system to affect moral values
apart from the equitable distribution of wealth.