Feinberg on Law v. Morality

Joel Feinberg's article "The Dilemmas of Judges Who Must Interpret 'Immoral Laws'" makes the general point that the practical difference between natural law (NL) and legal positivism (LP) is minimal as applied to the duties of a "private citizen." When a person encounters a conflict between a legal duty and an overriding moral obligation, she will describe her situation in one of two ways: "The enactment is immoral and is therefore not a valid law," (NL) or "The law, though valid, is outweighed by moral considerations" (LP). On either view, she may be morally justified in violating the enactment, so NL v. LP is a distinction without a (practical) difference. (Hart apparently believes that LP has the practical merit of "candor", in that it admits that there is a conflict between the two duties--legal and moral--even though one may dramatically outweigh the other, rather than insisting counterintuitively that there is no legal duty at all and therefore denying the felt experience of conflict in such a case. But Feinberg apparently thinks that practical importance of candor is negligible.)

Nevertheless, Feinberg believes that a significant practical difference between the two views arises in the case of judges, who have to publicly defend their decisions on legal grounds. When a judge faces a conflict between an overriding moral obligation and a legal norm (e.g., the Fugitive Slave Act), he is bound to rationalize his conclusion publicly and on legal grounds. A LP judge in such a situation has no choice but to admit that the grounds for his decision are external to the law, and therefore to invite the censure of the public and other judges for overreaching the limits of his office. Meanwhile, a NL judge, who believes that the fundamental precepts of justice are implicit in the law, may argue for his conclusion from grounds that are--on his view--internal to the law.

Feinberg makes this latter point by means of a protracted dialogue between hypothetical LP and NL judges, in which the LP judge ultimately concedes that the only practical difference b/t LP and NL cuts in favor of NL, in that a NL judge would be more "comfortable" when faced with an unjust law. Still, the LP judge wonders whether that provides any support for the veracity of the NL view, and he wonders about whether a comfort differential constitutes a difference in their "morally important consequences." Finally, he insists that a persuasive NL view would have to account for how morality has come to be a part of the law.

Points to ponder:
(1) Do Feinberg's observations apply with equal force to the "weak NL thesis," i.e., that an unjust law is a law, but a defective one?
(2) Feinberg's hypothetical NL and LP judges cursorily (and confusingly) discuss the relative weights of role-specific obligations versus obligations based on the less peculiar role of "citizen" or obligations based on one's humanity alone, noting in passing that there is no lexical ordering between them--i.e., one's obligations as a human being do not always trump one's obligations as, e.g., a judge. They all have to be (and, therefore, one assumes, can be) weighed against each other. Also, Feinberg seems to assume that a judge would weigh his role-specific legal obligation more heavily than a juror would. What determines the weight of our various obligations? If not determinative, to what extent are their sources (i.e., law v. morality?) relevant?
(3) It seems to me that a lot of Feinberg's argument could rest on the very peculiar role of judges vis-a-vis law--i.e., their responsibility to reason in public from legal premises--and not on a general theory of role-specific legal obligations v. moral obligations. I wonder, then, how relevant any of its implications are for other kinds of role-specific obligations (e.g., the obligations of health care workers to abide by Plan B laws). Does the discussion of weighing role-specific legal obligations against humanity-based moral obligations carry any weight? (N.B. At one point, F describes a judge who cites extralegal sources as someone who is "insensitive to the moral bindingness of voluntary commitments." If the "voluntary commitment" is the key to role-specific obligations, then how broadly or narrowly should that commitment be construed in the case of judges or pharmacists or...?)
(4) The whole argument assumes a pf moral obligation to abide by the laws of a generally just, democratic society, which is a contestable assumption. (But would any good, for my purposes, come of challenging it?)

OK, that's it for now!