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Cass R. Sunstein, Two Moralities of Law, SSRN (Apr. 20, 2026).


Abstract: There are two Moralities of Law. The first is the Morality of Legality. The second is the Morality of the Rule of Law. The Morality of Legality is narrow. It calls for fidelity to existing law. It usually plays an important role within the executive branch, where violations of existing law are often (not always) experienced as taboo. The Morality of the Rule of Law is broader. It calls for (1) clear, general, publicly accessible rules laid down in advance; (2) prospectivity rather than retroactivity;(3) conformity between law on the books and law in the world; (4) hearing rights;(5) some degree of separation between (a) lawmaking and law enforcement and (b) interpretation of law; (6) no unduly rapid changes in the law; and (7). no contradictions or palpable inconsistency in the law. The Morality of Legality can be seen as an inference from the Morality of the Rule of Law and in particular from (3) and (5). Neither of the two Moralities of Law takes a stand on free markets, freedom of speech, economic equality, or democracy. Still, both moralities are important. A nation that lacks the Morality of Legality is in deep trouble. A nation that lacks the Morality of the Rule of Law is going to become authoritarian.