The problem discussed by Professor Stumpf in his book Morality and the Law can be summarized by these questions: Do we have two kinds of prescribed conduct, one prescribed by morality independent of the government, the other prescribed by government independent of morality? Or is prescription by government necessarily moral because government is necessarily moral by reason of being the government? If not, under what conditions, if any, does prescription by government become a moral prescription? Under what conditions, if any, is government, by law, a matter of expedience, not to be confused with morality?
reviewer: Henry Nelson Wieman
The critical notes in this review are not to be taken as a lack of appreciation of Professor Stumpf's contribution to legal philosophy. The problems he has formulated, even though not solved, focus attention on some of the shortcomings in the recurrent polemics on natural law and legal positivism. The progress of jurisprudence in this important area requires moral philosophers to study the position of "legal positivists" who claim to be interested in the morality of positive law. This study should include an examination of the underlying metaphysical and epistemological bases of natural law philosophy and of the relevance of deontological and teleological ethics as well as that of "cognitivism." Current moral philosophy has much to contribute to the solution of these problems and thus to the progress of jurisprudence. Despite the problematic character of this book, Professor Stumpf has shown great sensitivity to current jurisprudential difficulties. One hopes he will turn his attention to some of the ethical problems suggested here, and relate his analysis of them to the philosophy of law.
reviewer: Jerome Hall
Henry N. Wieman and Jerome Hall,
20 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol20/iss1/8