The question of law and morality are the same thing and where does law meet morality has been plaguing the legal philosophers for quite some time. Trying to resolve the issue of the compatibility of law and morality, one might find oneself adrift among the plethora of arguments – and, therefore, unable to answer in one word. The difficulty of the task is correspondent to the fact that the very notion of morality is naturally fluid. Nevertheless, relying on the evidence formulated by the titans of legal philosophical thought, it is possible to coin out a possible solution. Law and morality follow diverse paths because corrupt societal morale does not necessarily mean invalid legislation and vice versa; at the same time, although the law can be enforced by morality (just as legislation can promote better moral values), the two are not interchangeable. To demonstrate the relativity of law and morality, this paper is going to formulate the notions in general terms, review relevant theoretic literature on the subject, and logically back up the initial idea.
In general terms, law and morality have diverse meanings. The most obvious – and somewhat cheeky – proof to such a statement would be the thesauri that have separate entries for the words “law” and “morality.” Law refers to a specific form of controlling society to maintain peace. Although the law is sometimes perceived by certain groups of individuals to take root from the domain of the divine, it is a man-made collection of universal rules designed to protect the order of society. The common good is, thus, a more accurate description of the purpose of the law than individual good. Law is the pillar upon which society rests, and it would be true to say that no society is possible without a code or a statute. Without law, every person defends their interests, and society turns into a jungle. Moral concepts mimic the universality of legal ones. Should every person have their vision of what is right and wrong, the social order will be disrupted, regardless of the legislation. As a result, morality is what procures each citizen’s respect for the law since one of the fundamental values safeguarded by morality is law-abidance.
The moral grounds of law, therefore, seem to be unarguable, but only at first sight. Demonstrating the connections between moral conceptions and law inevitably leads to the spanning of boundary between the two, which is what has long been the subject of philosophical dispute between legal positivists and natural lawyers1. As a side note, it is worth saying that, currently, the distinction between the two schools is inconspicuously blurred, as it were. At any rate, legal positivism maintained the absence of correlation between morality and law. Natural law theory, subsequently, insisted on the presence of such correlation.
Contemporary positivists agree that law is related to morality in that it aspires to representing the ultimate – legislative – moral authority. In other words, according to Raz, law acts as an institutionalized embodiment of moral values2. As per Raz, moral values are formulated vaguely; what law does is clarify the values and provide a guideline for their actualization3. Dworkin agrees that there is a moral dimension to human understanding of law; he contradicts Raz stating that law is largely a justified coercion4. Coercive nature of it, however noble the purpose is, creates a gaping void between law and morality. In relation to coercion, Dworkin supports a point of view expressed by Hart and, much earlier, by Aristotle: the morale of the society should not be the concern of the state; much less should it be enforced by legislature5.
To determine if there is a point of overlap of law and morality, and amid the intricate argumentation that legal philosophers provide, one can only try to distinguish law from morality by allocating where law contains moral content and where it does not. At that, Fuller argued against the presence of substantive moral content – the idea that, functionally, belongs to natural lawyers6. Contrastingly, he believed the procedure of law-making should be reliant on moral conduct. The morality of law-making, as per Fuller, concerns how the laws are formulated, promulgated, and administered. It might seem that Fuller’s referral to moral aspects of law was somewhat confused with efficiency of law-making and administration, which was what Hart emphasized when contradicting Fuller’s argument. However, Fuller’s principles of law-making are, in fact, consistent with the moral content because they assume the law should be produced – and executed – fairly. Thus, the first side of moral content of law is its creation and enforcement.
The second one is the moral content within laws. Criminal law, particularly, is frequently constituted by a surreptitious moral imperative not to cause harm. Laws prohibiting murder, violence, rape, etc., are basically the legal enforcement of corresponding moral values. Other (and broader) areas of criminal law are concerned with several domains of morality including, namely: autonomy, well-being, character – traits cultivated to create a morally predisposed person – and excellence, referring to pieces of art and cultural legacy7. It is, therefore, the primary obligation of the criminal law to protect each of these domains. In other words, criminal law is used to procure the autonomy of persons, to ensure their physical and mental well-being, to promote goodwill, and to preserve artifacts and other excellent objects.
From the other perspective, one can regard some conduct taken under criminal legislature lawful but not quite consistent with moral content. Anti-drug laws, for instance, are used to protect the persons’ well-being but do not comply with their autonomy. In some countries, abortion is prohibited due to the moral component of abidance with the “thou shalt not kill” commandment – at the expense of personal autonomy of the woman. Euthanasia is a point of constant controversy between the moral and legal aspects of either relieving the suffering of a terminally ill person or preserving their life. Other examples of laws that seem to hold no moral content are those that either permit or do not prohibit practices commonly regarded as immoral. Adultery, for instance, is generally held as morally wrong but is not prohibited due to personal autonomy of each individual. Laws related to ownership do not prohibit a businessperson to register a venture to their spouse’s name and go into shady practices on their behalf. Finally, some areas of law are not guided by the moral content (e.g., mining laws, cryptography law, arguably – taxation law, etc.) that are obeyed qua law, or simply because it is law.
The points of controversy, therefore, can be summed up to two fundamentally different concepts. The moral content within the law refers to the social arrangement of morale that is used to enforce the law – and vice versa: the law driven by a moral component is used to procure the society’s moral stance. The second concept is the moral invalidity of certain laws as listed above; such laws might be immoral but that does not necessarily disrupt the validity of legislature. While it is true that in particularly hard cases the last resort to refer to is moral content, the area of overlap is minuscule. From the other perspective, however small this area is, at least the legislative practices – the procedural dimension of them – are reliant on the moral obligation of fair conduct. Within this dimension, non-coercive practices are employed by the legislature which may or may not comply with the society’s moral values but which the society follows all the same.
To conclude, through the diversity of theories regarding the correlation of law and morality, the paper attempted to demonstrate the relativity that exists between the two. On the one hand, the moral content of some laws serves to both protect the social order and promote moral values. On the other hand, the non-compliance of certain laws to morality does not allow to claim there is a full agreement between them. The enforcement of the law is, thus, reliant on the fairness of law-making and the administration of justice. Even if the law does not hold any moral content, the procedural fairness facilitates social abidance to the law qua law, which is where the long-standing disagreement between the legislation and the fluid morality overlaps.
Bibliography
Dworkin, Ronald M. Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1977.
Fuller, Lon L. The Morality of Law. New Haven, CT: Yale University Press, 1964.
Hart, Herbert Lionel Adolphus. The Concept of Law. Oxford, UK: Clarendon Press, 1994.
Raz, Joseph. “Authority, Law and Morality.” The Monist 68 (1985): 295-324.
Raz, Joseph. “Legal Principles and the Limits of Law.” Yale Law Review 81 (1972): 823.
Wall, Steven. “Enforcing Morality.” Criminal Law and Philosophy 7, no. 3 (2013): 455-471.
Footnotes
- Steven Wall, “Enforcing Morality,” Criminal Law and Philosophy 7, no. 3 (2013): 455.
- Joseph Raz, “Authority, Law and Morality,” The Monist 68 (1985): 295-320.
- Joseph Raz, “Legal Principles and the Limits of Law,” Yale Law Review 81 (1972): 823.
- Ronald M. Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), 66.
- Herbert Lionel Adolphus Hart, The Concept of Law (Oxford, UK: Clarendon Press, 1994), 185-186.
- Lon L. Fuller, The Morality of Law (New Haven, CT: Yale University Press, 1964), 96-97.
- Steven Wall, “Enforcing Morality,” Criminal Law and Philosophy 7, no. 3 (2013): 455-471.