Law And Morality Research Paper

Moreover, legal systems depend, in varying degrees, on securing the conformity of citizens, which in turn depends, in part, on satisfying their moral expectations as well as their self-interest. The moral constraints which citizens impose on each other and on themselves through the informal processes of social approval and disapproval are crucially reinforced by the sanctions of criminal law and the remedies for such matters as breach of contract and negligence, which are enforced by the civil law. The ethics of public officials is underpinned by administrative as well as criminal law. Moreover, legal and moral discourse shares a whole range of basic concepts. Justice, fairness, rights, utility, equality, and freedom are the common vocabulary of both normative systems. In less developed societies there is little or no institutional divide in the normative structure between law and morality.

These commonalities of law and morality must be kept in mind when examining attempts to distance law and morality. They suggest that the social functions of law and morality are similar and overlapping, part of a wider system of normative order arising out of the requirements of an ordered human society. That said, however, there are important differences between law and morality which call for analysis, explanation, and evaluation.

1. Critical And Positive Morality

Focusing on apparent differences between law and morality, several key factors emerge: (a) law is said to be mandatory, even coercive, whereas morality is voluntary; (b) law is said to be an institutionalized system of norms, with specialized officials and procedures, whereas morality is informal and diffuse in its operation; (c) law is public and associated with the state, morality is private, a matter for the individual to determine for herself; (d) the identification of law requires reference to past events and previous authoritative decisions, whereas moral determinations are not so restricted; (e) laws and legal systems may or may not be just or justified depending on their content and procedures but there is something incongruous in the notion of an unjust moral principle.

Some of these points can be clarified by distinguishing between two senses of morality, the first referring to the collection of norms of conduct which are generally observed and used to criticize conduct in a given social group. This is sometimes called ‘positive morality’ (Austin 1954, p. 122). The second sense of morality is the activity of criticizing and evaluating the norms which make up positive morality. It is critical morality (Hart 1961, pp. 176–80) in which the content and form of positive moralities are assessed and judgments are made about what actually is right and wrong that give rise to most of the differences between law and morality. Making critical moral judgments cannot be coerced or forced on others and it makes no sense to come to the critical conclusion that it is right to act unjustly, unless injustice is defined by reference to norms of positive morality. Critical morality may be contrasted to both legal and positive moral systems of norms, with the law and positive morality sharing the characteristics which typify ongoing cultural structures and critical morality standing outside and above these phenomena.

Of course, positive systems may encourage and include critical attitudes towards prevailing norms so that critical morality can itself be viewed as part and parcel of positive morality, but the importance of the distinction between positive morality and critical morality has more to do with the perspectives involved, in particular the distinction between describing the moral beliefs and actions of an individual or group and evaluating those beliefs and actions from the moral rather than the sociological point of view. Precisely what that moral point of view may be is a controversial issue within moral philosophy, but we may take it to be the point of view which seeks to determine the ultimate criteria for assessing the worth of human conduct from an impartial or universal perspective (Baier 1958).

Having distinguished positive and critical morality, we can frame the questions which arise in relation to law and morality in a more sophisticated way. Thus we may raise, as a matter of critical morality, whether (a) law ought to incorporate the positive morality of the citizens of that jurisdiction, (b) the critical moral principles which we adopt to criticize positive morality ought to be the same as those we use to criticize law, and (c) there is such a thing as critical as opposed to positive law, similar to the distinction between critical and positive morality.

1.1 Legal Positivism And Natural Law

The relationships between law and morality have long been prime sites for the articulation of competing legal philosophies, particularly classical natural law and legal positivist approaches to the understanding and evaluation of law and legal systems. However, as we have seen, the relationships involved are varied in type and substance and it is by no means clear that the traditional packages of theses associated with the classical theories still hang together. Indeed there are real prospects for conceptual realignments which render some of the historical debates on law and morality outmoded.

Legal positivism, which received its classical formulation in the work of Jeremy Bentham and John Austin during the eighteenth century, is the legal theory which emphasizes the separation of law and morality, and the subordination of morals to the will of the sovereign (Austin 1954). Following on from Hobbes’ analysis of political authority as based on the requirements of mutual survival in a predatory social world, the state is seen as imposing a morally arbitrary rule of order so as to secure peace between warring factions, religions, and moralities. This characteristically modern theory of the state replaced the medieval European synthesis of government, religion, and morality which received its classical formulation in the Summa Theologica of Thomas Aquinas whose definition of law as ‘a rational ordering of things which concern the common good; promulgated by whoever is charge with care of the community’ (Aquinas 1966, Art. 4) sums up the fusion of law and morality in the natural law tradition.

Austin, through whose work legal positivism became the reigning orthodoxy in Anglo-American legal theory, presents his position in a series of definitions designed to identify law in empirical terms, such as command, sanction, and habitual obedience. Law is defined as the general commands of a sovereign, that is, the person or group who is habitually obeyed in a certain territory and does not himself habitually obey anyone else. A command is the expression of a wish relating to the conduct of another which is backed by threats of force, legal obligation being the likelihood that failure to comply with the a command will be followed by the imposition of sanctions. Each state has one such sovereign (which may comprise an individual or a collectivity) who is at the giving but not the receiving end of such commands. The existence of this unitary sovereign is the core of the positivist analysis of the modern sovereign state.

It is a defining feature of this mode of legal positivism that there is no necessary connection between law and morality (Hart 1961, p. 181). The classical positivist separation of law and morality is intellectually based on Hume’s distinction between ‘is’ (statements about what is and is not the case) and ‘ought’ (statements about what ought or ought not to be the case). In Austin’s ringing words ‘the existence of law is one thing, its goodness or badness another’ (Austin 1954, p. 184). Ever since, legal positivists have insisted that it is possible to separate out the description of law from our moral evaluation and criticism of that law: legal argument is not moral argument, legal authority is not moral authority, and a law is a law whether it is just or unjust, good, or evil. All this applies only to what is called ‘positive law,’ that is, the law as it is actually experienced in human societies.

Such a dichotomy depends on our capacity to identify law in an empirical manner and this Austin does with his analysis of law as the command of a political sovereign. In the terminology of a more recent and equally famous legal positivist, H. L. A. Hart, the law of a jurisdiction can be identified by means of its ‘rule of recognition’ (Hart 1961, pp. 92–3), which lists the criteria used by officials to determine legal validity, that is, what is and what is not part of the law of that jurisdiction. In Austin’s case that rule nominates the commands of the sovereign as the criterion which is necessary and sufficient for the determination of legal validity.

A similar approach is taken by the classical legal positivists to positive morality. The rules of conduct which are widely followed in a given society and are backed by the sanctions of public approval and disapproval are seen as a system of identifiable norms analogous to positive law. Both of these are distinguished from ‘natural law,’ a term which Austin is happy to apply to what is actually morally right and wrong in human conduct, which he himself, following Bentham and perhaps Hobbes, identifies with the utilitarian standard of acting or refraining from acting so as to maximize human happiness and minimize human pain. While such natural laws can be regarded as the commands of the ultimate sovereign, God, they feature in the critique of positive law and not in its identification. The classical natural law position, in contrast, is that knowledge of right and wrong as manifest in God’s law speaking through human reason or conscience plays an essential part in the identification and understanding of all laws, including positive laws.

For some natural lawyers this means that there can be no such thing as an ‘unjust law.’ However, John Finnis, one of the most influential natural law theorist currently writing, denies that natural lawyers have always or have needed to deny the existence of unjust laws. He also points out that natural law has a developed view on the role of positive law as a social institution that is necessary to give concrete application to the general moral principles which derive from natural law (Finnis 1980). Further, there are powerful arguments to the effect that, while individual laws may or may not be just, the concept of law, as distinct from the content of particular laws, is necessarily connected with justice, for law is an institution that must not only claim to be just but seek to be (Beyleveld and Brownsword 1989).

Put in these terms, it appears that the disagreement between legal positivists and natural lawyers is about the meanings of the terms ‘law’ and ‘morality,’ in which case the apparently major theoretical division between legal philosophies is in the nature of an uninteresting irrelevance. Stipulative definitions of law and morality may give rise to a logical separation between the terms, but there are no essential and unchanging meanings which we are required to adopt, so that it becomes a matter of choice, individual or cultural, whether or not we conceive of law and morality as conceptually tied.

A crucial matter of interpretation is whether the role of natural law in both classical approaches is an exemplar of positive or critical morality. In the case of legal positivism there seems no doubt that the utilitarian morality used to assess legal systems is presented as a critical morality. Indeed, Bentham gives this activity the title ‘censorial jurisprudence.’ In the case of natural law theory, the situation is less clear. This is because of the moral methodology of natural law which depends on reasoning about ‘nature,’ which includes human behavior, particularly normative behavior, that is conduct which involves the control of natural appetites in a way which makes social life and individual spiritual development possible. In effect this means that universal positive morality has a key evidential role in determining what is in accordance with right reason. However, it is clear that classical natural law theory presents as a critical morality, and modern ‘natural law’ theories, which are standardly uncoupled from theological backgrounds or moral deference to what is ‘natural,’ hold that it is critical not positive morality that is central to the very idea of law. This does not mean, however, that the classical theories are simply presenting competing schemes of critical morality with the utilitarianism of legal positivism pitted against the theological naturalism of natural law. Indeed, both theories have outgrown their original moral affiliations. Exactly what is now at stake between the two approaches is best explained by reference to more recent controversies over the ‘separability thesis.’

1.2 Separation And Separability

With the introduction of Hart’s rule of recognition and, before that, the impact of Kelsen’s ‘pure theory of law’ which includes the idea of a presupposition about the authority of law from which all legal validity derives, the classical debate about law and morality has come to be formulated in terms of what is known as the ‘separability thesis .’ This goes behind the positivist idea that positive law can all be traced to social sources, such as commands, or enactments, or court decisions, to an examination of the content of the rule of recognition that is used in the processes which make up those human sources of law. In other words, the focus has shifted to the sources of law as understood by the officials whose pronouncements constitute the social origins of law, namely the criteria given in the operative rule of recognition.

The separability thesis, as formulated by Jules Coleman, is the view that a rule of recognition need not include moral criteria, such as justice or utility, but can consist entirely of empirical identifiables such as human commands or legislative enactments. Because this thesis is compatible with all actual rules of recognition including moral criteria, this minimalist form of legal positivism is called ‘soft’, or sometimes ‘inclusive’ legal positivism (Waluchow 1994), as opposed to the ‘hard’ or ‘exclusive’ variety which admits only nonmoral criteria into anything which counts as a rule of recognition. According to soft legal positivism it is a contingent matter how far a legal system officially incorporates moral considerations into its criteria of legal validity. Such a view is regarded as positivist because it requires that morality enters into legal reasoning through an empirically identifiable rule of recognition which happens to include moral criteria and not, as it were, in its own right. Hard positivism also accepts that moral criteria are, indeed ought to be, utilized in the making of law through legislation, but insists that what makes that morality or anything else into law is its adoption by authorized law makers. The difference between soft and hard legal positivism seems to come down to whether legal officials, such as judges, can make law through the direct application of their own moral views or by reference to the moral views of others or whether they must identify law in much the same way as a social scientist seeking to describe the law of a particular jurisdiction. It can be argued that if soft positivism allows that some legal systems require judges actually to make correct moral determination in determining what the law is, then it is really a soft natural law theory.

Important empirical issues then arise for social science as to whose positive morality finds its way into the law, how that law in turn affects morality in general, which elements of morality most commonly find legal expression, and which are more often excluded from law. It is also a matter for empirical study how far the morality within the law stems from legislative or judicial activity.

Viewed as a descriptive thesis, soft legal positivism is clearly superior as all legal systems appear to allow some role for moral judgments in the legal reasoning which determines legal validity. Common law systems permit judicial development of law in the light of broad moral principles, albeit subject to the theoretical right of legislators to amend the common law. More and more legal systems incorporate a bill of rights with general moral principles which it is the court’s duty to interpret, something which can be done only by reference to the moral preferences of those who give concrete application to such vague moral standards as equality and freedom. All this seems to accord more with a natural law approach, at least with respect to the idea of fundamental rights as the point where law and morality are inseparable (Dworkin 1996).

It is true that the moral reference in rules of recognition often serve only to incorporate positive morality or some identified aspect of it within the law; often this is done by the idea that the law must enforce reasonable expectations. However, if only because there is seldom any indisputable agreed content to positive morality on any topic, in effect these approaches call for the judicial exercise of critical moral judgment. For the soft positivist to claim that this need not be the case seems a relatively minor point to make about law and morality.

The retreat into soft positivism is explicable because of the emphasis that legal positivists have historically placed on providing a descriptive theory of all developed legal systems. However, there are good reasons for seeing legal positivism in a more normative light as an approach which is actually setting forth an idea of a ‘good’ system of law, so turning the separability thesis into a prescriptive claim about what a rule of recognition ought to contain. Thus, hard positivism may be viewed as a more or less disguised prescription which is recommending that a rule of recognition ought not to include moral criteria and that all positive law should be framed in such a way that it can be understood and applied without recourse to the moral opinions of citizens or judges (Campbell 1996, p. 72).

This normative approach to the separation of law and morality derives from a complex political philosophy that points to the role of authoritative rules in human society (Raz 1979). Social cooperation and coordination, dispute resolution and maintenance of public order, it is alleged, require that there be rules which are followed and enforced according to an authorized formulation that leaves as little room as is possible for doubt as to their content and implications. These arguments often relate to the utility of rules as social devices which give effect to conventions that make it possible for individuals and groups to anticipate each others conduct with considerable reliance. The utility of these rules is relatively independent of their precise content since what matters is that there is some generally recognized convention rather than precisely what that convention may be (Postema 1982).

While these considerations give us reason to see why it may be socially important for some laws to be clear and applicable without controversy as to their meaning, other laws, such as those forbidding clearly harmful conduct, are more dependent on the moral acceptability of their content. Even here, however, there is a role for an official determination of which conduct is punishable and which is merely open to social criticism. The need for definitive rulings in morally salient cases derives from the fact of moral disagreement, the fact that there is rarely any one coherent system of positive morality, particularly where the culture encourages critical approaches and individuals have some autonomy in making up their own minds as to what they believe ought to be punished or recompensed. The political need to reach a working agreement on matters with such potential to generate conflict and disorder gives a role for the positivist idea of law as a system of mandatory rules whose authority depends on their adoption as law and not on their specific content.

Other moral arguments in favor of such a formalist conception of law are powerfully presented by Lon Fuller (1964) who demonstrates the connection between what he calls governance of rules, rules which are clear, promulgated, prospective, practicable, and stable, and a society in which there is respect for autonomous moral agents who can reasonably be held responsible for their actions and accept that their obligations are part of a mutually beneficial political system. Fuller calls his theory a procedural form of natural law. Its formal requirements of ’good’ law are part of a morality of mutual respect. He goes further than this and argues that a government which abides by the requirements of good procedural law will thereby tend to produce good substantive law. In a classic exchange with Fuller, H. L. A. Hart pointed out that Fuller’s procedural natural law is ‘compatible with great iniquity’ (Hart 1957). However, the general thesis that there are moral reasons for government in accordance with rules has clear affinities with prescriptive legal positivism, and it can be argued that Hart himself includes elements of this prescriptive approach (in a largely descriptive analysis) when he describes the benefits which arise for social order when the informal ‘law’ of simple societies is supplemented by ‘secondary rules’ which enable official determinations about what the primary rules of a society are and who has the right to interpret and change them (Hart 1961, pp. 77–96).

1.3 Enforcing Morality

Issues of law and morality as often framed in terms of whether or not law should enforce morality. It is generally accepted that there is a sense in which morality cannot be enforced because truly moral conduct involves the willing acceptance of moral obligations. Thus, Immanuel Kant defined moral goodness as doing what is morally right because it is morally right and not, for instance, because the law requires it of us.

Further, it is rarely argued, as a matter of critical morality, that the law should require conformity to all and only conduct that is morally correct. Natural law theory tends to identify justice and the common good as that part of morality which is binding on human beings in a way which makes it appropriately enforced through positive law. The theory also provides for governments to fill out positive law with lots of moral neutral ways which are required to give specific application to natural law values.

Classical legal positivists apply the general principle of utility to all moral questions, but point out that choosing a law is not making the same moral choice as choosing how to behave as an individual. Law involves sanctions and restricts liberty of action, which human beings enjoy and use to achieve their own happiness. Therefore, there are always moral reasons against enacting a law. This approach was developed by John Stuart Mill (1910) into the famous harm principle according to which only harm-producing conduct may be prohibited and then only when the negative effects of enforcing conduct are outweighed by the positive effects of reducing harm. He confined this harm to that which is caused to others, an antipaternalist position which is a dominant strand in all liberal political philosophies.

This highly individualistic approach encouraged by the utilitarian moral theory is standardly countered by various forms of communitarian analyses of society, including natural law theory. This conflict is well illustrated in a classic debate between Lord Devlin (1965) and H. L. A. Hart (1963) on the matter of decriminalizing homosexual conduct between consenting adults. Devlin argues that the basic institutions of a society, such as marriage, have to be protected in the interests of that society as a whole, therefore, it is treasonable to allow forms of conduct which undermine such foundational social institutions. It follows that society has a right to enforce a particular type of sexual organization. This was a response to H. L. A. Hart, who takes the view that sexual conduct of this sort is a purely private matter so that any disgust which the majority might feel towards such conduct has no bearing on the moral question of whether or not homosexual conduct should be a criminal offence.

Debates of this sort may be approached in a number of ways. Sociologically, Devlin’s communitarian point can be investigated to see whether it is the case that the preservation of monogamous marriage as the dominant social institution with respect to sex and reproduction does require prohibition of incompatible forms of sexual conduct. Other arguments center on the concept of toleration, the idea that it is morally desirable to allow people to follow out their chosen way of life even when you think that they are wrong to behave in this way. The arguments for toleration are complex (Mendus 1988). For some people toleration is an acknowledgment of the significance of moral goodness. For others it is simply morally right not to interfere with the conduct of others when this does not harm our interests. For others it is a response to moral disagreement and the difficulty of reaching an objective decision about which competing form of life is morally superior. A more extreme form of this position is that choices between competing ways of life cannot themselves be moral choices, since all moral choices have to assume values which arise from a particular set of cultural circumstances. All these approaches neither permit nor encourage a pluralism of positive moralities which make it impossible for the law to enforce morality without a choice being made as to whose morality or which morality is to be enforced.

Responses to the problem of choosing which morality to enforce can be broken down into at least three categories.

(a) Those which aspire to a neutral principle which is not moral at all. Mill’s harm principle has been presented in this light, but it is clearly part of the utilitarian maxim which values pain negatively. Indeed, it is clear that many theories smuggle moral ingredients into the concept of ‘harm,’ identifying it with the approved interests of those affected by the actions of others.

(b) Those who seek to distinguish between private and public spheres, arguing that the morality which pertains to law is public morality, that is, morality about political and state relationships, while private has to do with the individual and her freely chosen associates. This shifts the argument to what is public and what is private, a principal battlefield being the sphere of family relationships. Feminists have powerfully pointed out that to classify the family as private is to leave this male dominant sphere unregulated. Ultimately ‘private’ comes to mean simply those matters which the law ought not to deal with, making it uselessly circular as a principle for determining the proper sphere of the law.

(c) Those who seek to identify a certain number of basic rights which while not morally neutral, allow for an extensive range of different forms of life to flourish as each individual and group pursues its own conception of what is good. This is the position developed by Rawls in A Theory of Justice (1972) and enunciated by Dworkin in a series of works which represent the most sustained recent attempts to identify a morality which the law ought to enforce (1985, 1996). His position allows us to say that judges should, within the confines of inherited legal decision, exercise their own critical morality in determining a point of law. These theories do not however limit law to the enforcement of basic rights, rather they permit law to enforce conduct as long as this enforcement does not violate these rights. If they succeed then we can have a form of natural law theory which makes it a necessary condition of legality that a mandatory rule does not violate a human right, leaving considerable scope for the generality of law to be determined on democratic lines, the right to self-determination being itself a human right.

Such theories do not however enable us to achieve actual agreement as to what these rights are or should be. We are therefore left with the problem of determining whose system of rights to enforce. In effect this comes down to the question of who has the right to decide which rights are human rights. This takes us back to constitutional questions which are crucial to contemporary arguments about law and morality. If we believe that there is a moral method which enables us to identify human rights in an objective manner, then it is reasonable to enact by plebiscite or legislative processes a general Bill of Rights which is then filled out and applied by courts in their determination as to whether the law produced by elected assemblies do or do not violate these rights. This may be regarded as a natural law position since it assumes an identifiable law-like morality particularly related to fundamental justice. It therefore makes sense to have rules of recognition which list these rights and leave it to the critical morality of the judiciaries to give them concrete application.

If we are sceptical about our capacity to solve disagreements about fundamental rights in this way and give high priority to the right of self-determination, then we can draw on a prescriptive form of hard legal positivism and suggest that it is for elected assemblies and popular plebiscites to determine the content of all law in the light of the critical moral judgments of the people as a whole, and the duty of the courts to apply such laws without reference their own moral views, in which case the morality which is in the law is determined independently of and externally to the process of law application.

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