Part III - The Moral Case for Legal Perspectivalism

Summary

In the previous parts I argued both that law departs in content from the provisions of morality and that law possesses only theoretical authority. That is, law cannot itself obligate; it can only shed light on what does obligate – namely, morality. Collectively, these arguments make possible the moral justifiability of significant acts of civil disobedience. The battered woman who fears for her life and the lives of her children may be wise to take the counsel of the law and await imminent peril before employing deadly force against her abusive husband. After all, persons cannot, as a general matter, predict the future with any confidence, and thus they should not resort to deadly force unless and until peril is imminent and the need for such force is thereby made certain. Yet there are clearly cases in which the force necessary to prevent peril can only be meaningfully wielded when peril is not imminent. A battered woman may rightly conclude that to abide by the prohibition against deadly force absent imminent peril will guarantee her inability to defend herself and her children when peril is imminent. She may be able to predict with confidence both that her husband will kill her and her children and that, when he makes his move, his ability to overpower her and to cut off all avenues of rescue will defeat any attempts at self-defense on her part. She may also be right in believing that any attempt to escape his control will only result in her pursuit and punishment. The only means of effectively defending herself and her children is thus to use deadly force in advance of peril.