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Jose Luis General 2-E

Laws and Morals


Chapter IX

I. Natural Law and Legal Positivism
To assert or deny the relation between law and morals is significant. It is not to be disputed that
the development of law depended on morality or the ideals of a particular large group. Consequently,
the proposition that law exhibits characteristics of morality is acceptable. However, the rule of
recognition of identifying legal validity must not include in its scope morality.
There are many questions that arise in this relation. The two most important ones are to be
discussed in this chapter. The first question looks into the matter between Natural Law and Legal
Positivism. The latter is to mean that laws do not satisfy the demands of morality although in reality the
laws often do so. However, Legal Positivism has been rejected in two forms. The first is to be found in
the principles under Natural Law. It states that there are certain principles of human conduct, awaiting
discovery by human reason, with which man-made law must conform if it is to be valid. The second
expresses a less rationalist perspective. It states that legal validity and moral value are interrelated.
From philosophers from the ancient days to the present, it has been said that the way that man
should conduct himself is discoverable by human reason. However, some modern critics assert the
ambiguity that as non-humans obey the law of their nature, humans do not as they fall into sin. There
is confusion between laws which formulate the course or regularities of nature, and laws which require
men to behave in certain ways. The former, which can be discovered by observation and reasoning, may
be called descriptive and it is for the scientist thus to discover them; the latter cannot be so established,
for they are not statements or descriptions of facts, but are prescriptions or demands that men shall
behave in certain ways.
On a theocratic view, it is said that man has reason and free will. Hence, man may able to
discover the prescription of the Divine, yet, he may disobey it. Although this may be the case, Natural
Law should not be confused with Theology as Natural Law is a separate branch of principles differing
from divine and human authority. Nonetheless, Natural Law contains important aspects that helps us
understand morality and law.
Natural Law should be approached by conceiving that existence is not just the maintenance of
existence but as the growth or development from a simpler state to its optimum state. This is regarded
as the teleological conception of nature.
Teleology then determines in existence what generally occurs and what ought to occur. The
latter is more important as it generally leads to the optimum state, specifically the end or goal.
Man differs from animals because he is conscious of what ought to be his telos or end. Not only
that he is conscious, he also desires it. Yet even so this optimum state is not mans good or end
because he desires it because it is already his natural end.
Survival is the lowest form of telos for man. For some thinkers like Aristotle, it is the cultivation
of the human intellect. For Aquinas, it is the knowledge of God. For Hobbes and Humes, they stick to
survival as this activity best adheres to Natural Law. According to Humes, Human nature cannot by any
means subsist without the association of individuals: and that association never could have place were
no regard paid to the laws of equity and justice.
Universally recognized principles of conduct which have a basis in elementary truths
concerning human beings, their natural environment, and aims may be considered the minimum
content of Natural Law, in contrast with the more grandiose and more challengeable constructions
which have often been proffered under that name.
II. The Minimum Content of Natural Law
This subchapter is about the prominent characteristics of human nature, which this minimum
content of Natural Law is based. The general form of the argument is simply that without such a
content laws and morals could not forward the minimum purpose of survival which men have in
associating with each other. In the absence of this content men, as they are, would have no reason for
obeying voluntarily any rules, and without a minimum of cooperation given voluntarily by those who
find that it is in their interest to submit to and maintain the rules , coercion of others who would not
voluntarily conform would be impossible.
The first of these truisms is human vulnerability. Both law and morality do not require actions to
be done, but forbearances which are constructed in the negative as prohibitions.
The second is approximate equality. Humans have varying levels of physical strength,
intellectual prowess, and so on. Although that is the case, there is no superman who can dominate
everybody else as it is in our nature that we need rest, food, and other nourishments in order to regain
strength. In these stages, the superiority is temporarily lost. This establishes the fact that everyone is
approximately equal to each other. This brings to the necessity for a system of mutual forbearance and
compromise which is the base of both legal and moral obligations.
The third is limited altruism. Men are neither angels nor devils. With that, human altruism is
limited hence there are chances when men get into conflict and these moments present harm to the
society if they are not controlled. Because of that a mutual forbearance is necessary.
The fourth is limited resources. It is an established fact that men need water, food, shelter,
clothing and other necessities. These resources are scarce. This then requires a concept of private
property that is needed to be respected.
The fifth is limited understanding and strength of will. Rules that respect private property,
persons and contracts are necessary for the achievement of a society in which members mutually
benefit from each other. Although men generally respect these by sacrificing their short-term to long-
term interests, some men may want to satisfy their immediate interests. Without an organization that
imposes punishment to those who disrespect private property and so on, there will be no control on
these acts of immediate satisfaction of interests.
III. Legal Validity and Moral Value
There are six forms of the claim that there is some further way in which law must conform to
morals beyond that which [is] exhibited as the minimum content of Natural Law.
The first of these six forms is power and authority. A moral obligation should be the backbone of
every legal system as it is said that a legal system cannot hold its footing by employing force and power.
The second is the influence of morality on law. The law of every legal system consists of moral
values and principles. Almost all the provisions of the Penal Law, for example, are based on moral
standards.
The third is interpretation. As for every case, law is interpreted whenever it is applied. When
interpretation and application are done, the presumption that the law is created so as to not effect
injustice or offend moral standards.
The fourth is criticism of the law. Sometimes the claim that there is a necessary connection
between law and morality comes to no more that the assertion that a good legal system must conform
at certain points to the requirement of justice and morality. However, there may arise question on
standards of morality and required points of conformity.
The fifth is the principles of legality and justice. It may be said that the distinction between a
good legal system conforms at certain points to morality and justice, and a legal system which does not,
is a fallacious one, because a minimum of justice is necessarily realized whenever human behavior is
controlled by general rules publicly announced and judicially applied.
The last one is legal validity and resistance to law. What this form is concerned to promote [is]
clarity and honesty in the formulation of the theoretical and moral issues raised by the existence of
particular laws which were morally iniquitous but were enacted in proper form, clear in meaning, and
satisfied all the acknowledged criteria of validity of a system. [The] view [is] that, in thinking about such
laws, both the theorist and the unfortunate official or private citizen who are called on to apply or obey
them, could only be confused by an invitation to refuse the title of law or valid to them.