Law and Morality

In the modern world, morality and law are almost universally held to be unrelated fields and, where the
term "legal ethics" isused, it is taken to refer to the professional honesty of lawyers or judges, but has
nothing to do with the possible "rightness" or "wrongness" of particular laws themselves.

This is a consequence of the loss of the sense of any "truth" about man, and of the banishment of the
idea of the natural law. It undermines any sense of true human rights, leaves the individual defenseless
against unjust laws, and opens the way to different forms of totalitarianism. This should be easy enough
to see for a person open to the truth; but many people’s minds have set into superficial ways of
thinking, and they will not react unless they have been led on, step by step, to deeper refection and
awareness.

The right relationship between law and morality

Law and Morality do not coincide in meaning, though there is& there should be - a necessary
interdependence between them. Moral law distinguishes right and wrong in (free) human actions. It is
aimed above all at personal improvement and ultimately at salvation.

Political & civil law is aimed at making it possible for people to live together in community: in justice,
peace, freedom. Its concern is not directly supernatural, although in creating the conditions for true
justice and truly human behavior, it indirectly favors it.

Human civilization is not possible without law and morality, standing in right relationship. The growing
modern crisis of the West, shaking its culture and civilization to its foundations, stems from separating
both, seeing no necessary relationship between them. But this is to relativize justice and truth in human
relations, and to reject any concept of objective truth capable of uniting men. The bond of unity
between men is tenuous when they simply share material interests; this is an association of self-
interests 'always prone to clash. Unity goes deeper and is stronger against potential divisions when
people have common values to look up to: shared truth, patriotism, religious faith.

Law

"Law", according to the Encyclopedia Britannica, "refers to the specialized form of social control familiar
in modern, secular, politically organized societies". The thomistic and christian view understands law
otherwise: "it is nothing else than an ordinance of reason for the common good, made by him who has
care of the community, and promulgated". The purpose of human law is the common good more than
the good of individuals (I-II, q. 96, art. 1). It is to establish a certain order, so as to protect social living.

Without law, there is no society, only the jungle, the rule of might "If there is justice, and if law is based
on a discernment of what is just, dialogue can begin and benevolence can appear: so we come to what is
ours in common. The first form of culture is law. Its effectiveness means that barbarism has been
overcome: men have always been civilized this way".

Morality

Ethics or morals is the study of what we ought to do: i.e. what is the right way to act and what is wrong.

Fundamental moral concepts such as right and wrong are necessarily universal. If they are treated as
relative and subjective, then they become inapplicable to the social sphere and hence to the whole area
of human law. If what is wrong to me may legitimately be right to someone else, then one may perhaps
debate the opportuneness of this or that law, but not its justice.

Without an interior sense of a moral order, there can be little respect for the law; for this can only come
from feeling oneself bound from within to observe the law. Here we note that the almost universal
modern concept of law as a system of rules created by the state - which ensures its application through
a system of courts and a coercive power - leaves the law without any interior appeal or authority, except
insofar as one may recognize the need for some minimum of common rules. It also exposes the
individual to the tendency to regard the law as purely external imposition to be evaded, if one can,
whenever it is considered personally inconvenient.

The purpose of morality is to ensure the uprightness of individual conscience (the law cannot force a
conscience to be upright). Yet christian morality is not individualistic; it leads one into community.

Law and freedom

Both law and morality imply human freedom. Clearly, without freedom one cannot speak of morality.
But the same holds for law, for if it were automatically and not freely obeyed, men would be mere
robots. Law is not a simple indication of what happens, such as the law of physics; it is an admonition to
free persons about what they are required to do if they wish to live freely and responsibly in society; and
it normally carries with it a sanction or punishment to be imposed on whoever is shown to have acted
against given norms of conduct. Just law, properly understood, appeals to freedom.

Nevertheless, one of the most generalized liberal ideas is that law is by nature the enemy of freedom.
Servais Pinckaers holds that Catholic moralists have gone through many centuries under the infuence of
this mentality which has led, by reaction, to the anti-law approach of much of contemporary moral
theology. In this view, law and freedom were seen as "two opposed poles, law having the effect of
limitation and imposing itself on freedom with the force of obligation. Freedom and law faced each
other as two proprietors in dispute over the field of human actions. The moralists commonly said, "Law
governs this act, freedom governs that one..." The moralists were traditionally the representatives of the
moral law, and their mission was to show to conscience how to apply it in a particular situation, in a
"case of conscience". Today we witness a strong tendency to invert the roles; the moralists now regard
themselves as defenders of freedom and of personal conscience"(as against the law).

Law and Morality

Difference Between Law and Morality

Laws are created and come into force on a particular day; moral rules evolve overtime

Breach of a legal rule results in a legal (state-imposed) sanction; breach of a moral rule normally results
only in unofficial sanctions

Relationship Between Law and Morality

Two schools of thought:

1. Positivism (Austin and Hart)

2. Natural Law (Aristotle, St Thomas Aquinas, and Lord Devlin)

Deny the existence of a higher law

Any law created through the appropriate mechanism laid down by the state is valid, however immoral
it is

Law and morality are wholly different concepts

Law should not be used to police morality in society

Natural Law

There exists a higher, universal law, that provides a standard against which all human rules and
conduct can be judged

Principles of natural law are discoverable by reason

Speaks of a low higher than positive (manmade) law

Positive law can only be understood in its moral terms

If positive law contradicts natural law, the latter will prevail

Lex iniusta non est lex – an unjust law is not a law at all

Characteristics:

-Universal and immutable, achieves justice where justice means righting of wrongs and probably
distribution of burdens and benefits in society

-It is a higher law (it is legal)

-It is discoverable by reason (natural)

Example:

-Human slavery was once ‘legal’ under the existing law but not moral. Therefore, natural law prevailed
to correct this injustice

Sources:

-Seen as internal law emanating from God, but later theorists adopted a more secular approach to
natural law

-Derived from human nature

-Natural conditions of existence of humanity

-Natural order of the universe

Even if God is taken out of the equation natural law would still stand

John Finnis, modern proponent of natural law, states that these exist certain ‘basic forms of human
flourishing’ which include:
-Life

-Knowledge

-Play

-Aesthetic

-Experience

-Friendship

-Practical reasonableness

-Religion

St Thomas Aquinas (1225-1274)

Theory of four types of law

1. Eternal Law

2. Natural Law

3. Divine Law

4. Human Law

Wolfenden Committee (1957)

Investigators have made recommendations on how the law should deal with prostitution and
homosexuality

They used Mill’s ‘harm’ principle in recommending criminal decriminalization of homosexual activities
between consenting adults in private - ‘Victimless crime’ John Stuart Mill’s ‘Harm’ Principle

“The only purpose for which power can be rightfully exercised over any member of a civilized
community against his will this to prevent harm to others. His own good, either physical or moral, is not
a sufficient warrant.” – On Liberty, 1859

The Hart/Devlin Debate

Devlin: There exists a shared morality which the law must uphold and enforce, otherwise society will
disintegrate and fall apart; individual autonomy can only be protected in a stable society- “The
suppression of vice is as much the law’s business as the suppression of subversive activities”

Hart: Denied the existence of a common morality, pointing out that common morality may in fact be
common prejudice

-Argued that the law should not be used to enforce moral values

-Danger of a majority group forcing their own version of morality on a minority group

Justifications for Legal Intervention

2. Prevent offense to others

3. Grounds of legal paternalism (harm to self)

4. Grounds of legal moralism

- R v Brown [1993] 2 All ER 75. Sadomasochism case. Sexual acts in private between consenting adults
but the government still enforced law due to morality issues

Conclusions

Morality is what is right and wrong according to a set of values or beliefs governing our groups
behavior

blue and reality usually overlap on major issues, but may differ on other matters

Positivists state that law and variety are essentially separate, while proponents of the natural law
theory believe that law and morality should coincide