‘Moral Impact’?
First alluded to by Mark Greenberg in his seminal work How Facts Make Law (2004) and subsequently elaborated upon in The Moral Impact Theory of Law (2014), the concept of moral impact has been hailed as a novel way of resolving the dispute between positivists and non-positivists in favor of the latter without, arguably, introducing or “inventing” new problems. According to Greenberg,
‘the law is the moral impact or effect of certain actions of legal institutions—i.e., the moral obligations that obtain in light of those actions’ (2014: 1301)
I remain inclined to view this as a promising approach, and the objective of this note is to outline the ‘normative mechanics’ that, in my view, render moral impact a distinct normative phenomenon.
The working assumption is that moral impact implies a normative change, namely, a difference in what we ought or may do in the absence of a practice and, subsequently, in its presence. Therefore, moral impact should better be attributed to the occurrence of a specific class of events (e.g., enactments, judicial decisions, administrative acts) rather than to facts or states of affairs. Events are spatiotemporally indexed entities that stand in causal (e.g., the creation of an atmospheric pressure differential causes a storm) or constitutive (the elevation of my hand counts as having made a bid at an auction) relations with each other.
Normative impact of non-physical events
Moving on, I would like to suggest that what distinguishes a non-physical event (legal, social, political, cultural, etc.) as having normative impact is that, upon its occurrence and in combination with the proper operation of the underlying practice, a novel state of affairs emerges whose normativity is jointly deontic and evaluative.[1]
In other words, the normative importance of this state of affairs can be affirmed in a “Janus-like” fashion with two modally distinct propositions:
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- ‘It is right that one Φs or does not Φ, or that one will or will not Φ, or that one can or cannot Φ‘, and
- ‘It is good that one Φs or does not Φ, or that one will or will not Φ, or that one can or cannot Φ‘.
The peculiarity of the resulting state of affairs consists in that, whereas the explanation of its rightness (i.e., it is right, or it ought to be the case that one Φs or does not Φ, or that one will or will not Φ, or that one can or cannot Φ) is practice-immanent [2], the explanation of its goodness (i.e., it is good that one Φs or does not Φ, or that one will or will not Φ, or that one can or cannot Φ) is practice-transcendent.[3]
On the one hand, that is, only practice-governing considerations[4] such as fairness, legitimacy, fidelity, loyalty, association, solidarity, civility, reciprocity, mutual recognition, tolerance and mutual respect can explain why a state of affairs that obtains in the context of a practice is, at least, pro tanto right.
On the other hand, only axiological considerations about what is of intrinsic moral (e.g., liberty, desert, knowledge, virtue, justice, moral equality) or prudential (e.g., happiness, health, personal relationships, pleasure, survival) value can explain why the overall situation within the practice is better if this state of affairs obtains.[5]
Legal(ly proper) Impact [6]
Let us now briefly focus on the cross-cutting justifications of the rightness and goodness of states of affairs that obtain in virtue of the activities of institutions tasked with making and implementing political decisions.[7] Instead of an enumeration of different, legally proper ways in which these activities can change the normative situation of a political community, I will suggest that there exists an overarching avenue for generating legal(ly proper) impact.
Crucially, following this avenue involves the practice of enacting and implementing political decisions succeeding in generating and validating a specific type of trust in the potential of a legal system to attain certain moral and/or prudential ideals (i.e., ideal states of affairs). The relevant type of trust is the belief that the state of affairs envisaged by a political decision will improve the moral (e.g., justice) and/or prudential (e.g., security) situation of a political society.
When and if warranted (and that is a big IF!), this trusting belief could explain why it is pro tanto right that the politically envisioned state of affairs obtains: it is right that it obtains because it is right that trust in its potential to improve the normative situation is upheld. Other things being equal, such trust should not be betrayed. The principle that trust in a legal system’s ability to promote certain values should be validated is a practice-immanent principle in the sense that (1) it purports to govern the operation of the practices of enacting and implementing political decisions and (2) it can only become applicable if properly triggered[8] by the very activities of the legal institutions tasked with enacting and implementing political decisions.
On the other hand, the considerations that explain why it is pro tanto good that the same politically envisioned state of affairs obtains are practice-transcendent. It is good that it obtains because its obtaining improves the moral and/or prudential situation of a political society in a certain way. The manner in which society’s situation improves depends on the moral and prudential values promoted by a particular state of affairs. What makes values such as liberty or security worthy of promotion in the first place is not mediated by principles that make the practice itself worthy of adherence.
When it comes to the goodness (moral or prudential value) of a state of affairs envisaged by a political decision the justification is instrumental: it is good that state of affairs S obtains because its so obtaining is conducive to promoting value X, Y or Z. Accordingly, X, Y or Z are intrinsically or prudentially valuable for practice-extrinsic reasons. The sources of these reasons can, for instance, be aretaic (civic humanism), perfectionist (the development of human nature), iusnaturalist (divine providence, practical rationality, natural goodness), constitutivist (collective and individual agency), constructivist (rational acceptability) or reasons pertaining to the common good.
To read more about this, check out the following article: Gkouvas, T. (2023). What makes law law: categorial trends in analytic legal metaphysics. Jurisprudence, 14(4), 480–509. DOI: 10.1080/20403313.2023.2219127
My work on this blogpost has been supported by Grant RYC2023-043621-I funded by MICIU/AEI /10.13039/501100011033 and by the FSE+.
SUGGESTED CITATION: Gkouvas, Triantafyllos: “The Impact of Moral Impact (Part I)”, FOLBlog, 2025/6/24, https://fol.ius.bg.ac.rs/2025/06/24/the-impact-of-moral-impact-part-i/
NOTES
[1] For an outline of states of affairs as the ultimate bearers of goodness see Chisholm (2005) and Wedgwood (2009: 502). For an outline of states of affairs as the ultimate bearers of rightness see Reinach (1913/2012).
[2] By “practice-immanent,” I do not mean considerations that only have normative weight if members of a practice acknowledge their importance, either actually or counterfactually. Rather, I refer to considerations whose normative force stems from the triggering of principles that govern a social practice. These principles have independent normative weight in that their force is not derived from social acceptance alone. See, relatedly, Kolodny & Wallace (2005).
[3] By “practice-transcendent,” I mean considerations whose normative force is directly tied to their content, rather than to their official or actual recognition by the rules and/or members of a practice.
[4] I remain agnostic as to whether attributes such as fairness or fidelity should be construed as virtues, values, or principles. In any case, I believe that choosing among these terms is not critical to understanding the mechanics of normative impact.
[5] In a footnote to ‘The Moral Impact Theory of Law’, Greenberg acknowledges the strong connection between the notion of the legally proper way of changing the moral profile and the improvement of the moral situation. See Greenberg, ‘The Moral Impact Theory of Law’ (n 31) 1324.
[6] I deliberately avoid talk of moral impact in order to focus on the source (legal institutions) of normative impact rather than on its effect (the changing of the moral profile, to use Greenberg’s preferred term).
[7] Perhaps pace Greenberg, I believe that the improvement of the moral situation with which he associates the obtaining of legally proper obligations, rights and powers is the joint outcome of the activities of not just the legislative but also the executive and judicial institutions.
[8] The topic of how legal institutions can inspire trust properly deserves its own exploration. For example, establishing trust requires legislative institutions to refrain from directing us to act in ways that alter the order of priority among reasons that apply to us independently and prior to legislative action. Consider the fictional village of Asterix and Obelix, for example. Suppose the village council consists of seven wealthy families and five poor families. Upon a motion by its leader, Vitalstatistix, the council approves a “law” that instructs everyone to pay a flat annual fee to maintain the village’s fortress, regardless of personal or familial income or condition. The seven wealthy families vote in favor of the law, while the five poor families vote against it. This “political decision,” made into law by the village council, cannot inspire trust in its ability to improve the community’s prudential situation, such as safety and resilience. Collecting a flat amount from everyone prevents the poor families from acting based on reasons that exist independently of the council’s dictates. Because of this impoverishing tax, securing their now-endangered material survival has become more important than protecting their homes. In other words, for some village families, this formally egalitarian tax has the effect of making them experience their agency as self-undermining. This is because the tax turns their own actions (making oneself even poorer by paying the exorbitant fee), rather than external factors beyond their control, into the leading cause of what relegates an initial reason (protecting one’s home from an externality) to a lower status than a newly acquired reason (their material survival).