For many decades, prosecutors have pursued, and lower courts have endorsed, novel fraud theories under federal statutes, primarily mail and wire fraud. The root source of these theories is the language of the federal fraud statutes themselves, which requires a good deal of interpretation and thereby invites departures from settled expectations regarding the nature and elements of common-law fraud. A good number of courts have embraced novel fraud theories by entwining legal and moral principles, and in consequence have created—in essence—new crimes. A particularly striking example emerges when a court establishes an equivalence between fraud and a failure to act with “moral uprightness.” But before directly engaging with this issue, we need to pause and consider whether there’s a meaningful distinction to be drawn between legal rules and other rules (like morals).

A major project of twentieth century general jurisprudence was the examination of the system of legal rules in relation to other systems of rules. There are at least two (related) approaches to the examination: one concerned with whether law is “autonomous,” and the other with whether legal rules are marked with special characteristics that distinguish them from other rules. To my mind, one approach helps us think about how a legal system might be described, the other how legal rules might be defined. We’ll take these approaches in turn.

Is law an autonomous (i.e., self-contained) discipline? Perhaps the strongest “yes” comes from systems theorists like Niklas Luhmann and Gunther Teubner, who argue that law is an “autopoietic” system, by which they mean that the legal system produces its “own elements, structures, processes, and boundaries.” As a term, “autopoiesis” first emerged from the domain of biology, where it proved useful as a way of describing how cells organize and reproduce. Luhmann found the concept a handy way to articulate his conception of society as an agglomeration of “closed” subsystems (e.g., religion, politics, and—most important for our discussion—law). And it’s this “closure” that gives law its autonomy.

If we take this autopoietic turn and think of law as subsystem existing within the larger social system and doing so alongside other subsystems (like politics, religion, morals, art, education, and so forth), the question thus becomes: how is it that law maintains its autonomy from these other rule-laden subsystems, especially morality? The most forceful response comes from the branch of legal philosophy labeled “positivism.” This theory, which is usually associated with Hans Kelsen and H.L.A. Hart, posits that law is a social fact or construct. That is, legal rules are legal rules because of their provenance. (Conversely, moral principles, religious dictates, and so forth are not law because they lack the requisite provenance.) There are many variations on this basic theme, but for our purposes a brief discussion of Hart’s will do. For Hart, law and morality are “different but related phenomena.” (In this respect, Hart is in accord with Luhmann, who posits that “morality as such has no legal relevance.”) Hart thus sets out to answer the question, “How does legal obligation differ from, and how is it related to moral obligation?” As Brian Leiter notes, this issue “looms so large” because law and morals have a shared vocabulary, and legal and moral rules often have the same content. For example, stealing is at once a legal violation, a moral wrong, and a biblical transgression.

So how do we know whether a norm is legally valid? Hart says that it is a matter of practice. The norm against stealing (a primary rule of obligation) is legally valid because it is practiced as such. That is, it becomes customary in a legal system (1) to assign authority to particular people to decide disputes, (2) to treat particular materials as sources of law in making decisions, and (3) to stipulate how laws may be changed. The second of these “secondary rules”—what Hart calls the “rule of recognition”—is the most important in his theoretical scheme. As Leslie Green puts it, the rule of recognition “exists only because it is practiced by officials, and it is not only that the recognition rule best explains their practice, it is the rule to which they actually appeal in arguments about what standards they are bound to apply.” Ultimately then, on this view, law subsists in the practices and performances of authorized legal actors.

This sets up a tacit opposition: if law is what legal officials do, then norms from other sources are not law. But even if one rejects the positivist project in whole or large part, the laws-morals distinction retains practical significance. This is so—at least in particular contexts—because application of moral norms can exacerbate legal indeterminacy. In his famous essay “The Path of the Law,” Justice Oliver Wendell Holmes Jr. introduced what is often labeled his “prediction” theory of the law:

People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.

To illustrate this concept, he offered a thought experiment, one viewed from the perspective of a “bad man”:

If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. The theoretical importance of the distinction is no less, if you would reason on your subject aright. The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds. The law talks about rights, and duties, and malice, and intent, and negligence, and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these words in their moral sense, at some state of the argument, and so to drop into fallacy.

The bad man/predictive theory anticipates full-blown articulation of the notion by the legal realists, who asked why lawyers and clients are interested in the law at all. Leiter suggests that all this talk about “predicting” reduces to what clients want to know, which is not what a particular statute says but rather what a court is likely to do when the client sues or is sued under the statute. This emphasis on the client’s conduct-guiding perspective as to what she should do in a particular circumstance evidences a truism that is often overlooked: namely, that law primarily functions outside the courts. This is to say that adjudication is, as Leiter puts it, a “fringe phenomenon.”

And what our information-seeking hypothetical client wants can come in two flavors. First, wearing her bad man hat, she may want to know about enforcement. For example, if she speeds above the posted limit between Dallas and Fort Worth, will she get a ticket, and is there an enforcement threshold? Or are there laws “on the books” that simply aren’t enforced—so called “zombie laws.” Second, she may want to know how to make a will or structure her business to reduce taxes. Now, she may not be able wring all indeterminacy from her legal life because of things like ambiguous statutory language and judicial discretion, but she can learn enough to have a reasonable basis for acting. In short, she wants to avoid surprises. What is it about law that allows a person to get definitive answers to most legal questions? And why is that not so with respect to morality?

Let’s start with a “positivistic” description of criminal law:

Punishments cause pain and are designed to cause it. Therefore[,] it is indeed a moral issue when and how much such imposed pain can be justified. But “ought” should not be confused with “is.” Crimes exist relative to specific legal systems at specific times, and to know what is a crime you must study the relevant body of law and find out what it prohibits. What the criminal law does say and what it ought to say are different things that should not be conflated. [Emphasis added.]

Neil MacCormick offers this oversimplification as a springboard into a discussion of presuppositions about the moral character of punishable acts. But I want us to focus on the part of the quotation that I’ve put in bold, which brings us to the door of our principal object of study: namely, the mess that courts create when they substitute unmoored moral norms for more-or-less clear legal norms in assessing putatively criminal acts. The root of the problem springs from the relative indeterminacy of moral standards, which, as a consequence, makes their application unpredictable, ex-ante. This relative indeterminacy is a function of relative documentation:

Autonomous morality admits of no authoritative texts; law in a certain sense consists of a set of authoritative texts (statutes, or “rule-texts”, and law reports or “precedent-texts”). These texts are commonly acknowledged as authoritative repositories of binding law. Though they have to be interpreted to be applied, they are a fixed starting-point for interpretive deliberation. While we must fully admit their lack of perfect determinacy, we must also admit their relative determinacy as common points of departure for different persons, by contrast with the radical interpersonal indeterminacy of pure moral reasoning.

Next time, we’ll begin to look at instances in which courts have done considerable mischief by bleeding the line between legal and moral standards.

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