Moral foundation theory argues that there are five basic moral foundations: (1) harm/care, (2) fairness/reciprocity, (3) ingroup/loyalty, (4) authority/respect, and (5) purity/sanctity. These five foundations comprise the building blocks of morality, regardless of the culture. In other words, while every society constructs its own morality, it is the varying weights that each society allots to these five universal foundations that create the variety. Haidt likens moral foundation theory to an “audio equalizer,” with each culture adjusting the sliders differently. The researchers, however, were not content to simply categorize moral foundations—they have tied the foundations to political leanings. And it is here that moral foundation theory becomes a truly practical tool for the lawyer. . . . This Comment will use moral foundation theory, and the recognition of this discontinuity between the liberal and conservative moral foundations, to demonstrate how a lawyer can avoid polarizing and intractable moral debates and become more persuasive in the courtroom. To do so, we will look at Kennedy v. Louisiana, where the Supreme Court barred capital punishment for child rape. I chose Kennedy because the facts of the case touch clearly upon all five moral foundations and because the jurisprudence itself, as we shall see, is so clearly based on moral judgment. Through reading Kennedy, I will present both a general and a specific thesis: generally, lawyers and judges should use moral foundation theory to analyze moral motivations, and specifically, the majority in Kennedy failed to do this and thus reduced the persuasiveness of its opinion. Part II will more fully explain moral foundation theory and its evolutionary roots. Part III will present the facts and law of Kennedy and discuss the moral foundation implications. Part IV will look at how the use of moral foundation theory can tailor arguments to carry more persuasive weight.
Colin Prince, Moral Foundation Theory and the Law, 33 SEATTLE U. L. REV. 1293 (2010).