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In the modern world, morality and law are almost universally held to be unrelated
fields and, where the term "legal ethics" is used, 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 reflection 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 relativise 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" [1].
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" [2].
Morality
Ethics or morals is the study of what we ought to do; i.e. what is the right way to
relations must work from the basic principle of justice: "to each his due". Hence
arises the fundamental question of what is due to each one, and from this the
further question of human rights.
To each his due. Something is due to each. This is the sense of equality before the
law. "The possibility of giving his or her due not only to a relative, friend, citizen or
fellow believer, but also to every human being simply because he is a person,
simply because justice requires it, is the honor of law and of jurists. If there is an
expression of the unity of the human race and of equality between all human
beings, this expression is rightly given by the law, which can exclude no one from
its horizon under pain of altering its specific identity" [4].
Even for those who see law and freedom in mutual opposition, the whole concept of
law is essentially connected with that of justice. The ancient principle lex iniusta
non est lex (an unjust law is not a law), is at the basis of so many modern protests
in the name of freedom. "This law is discriminatory, therefore it is not just". But
justice is a moral concept; so these protests bear out the intrinsic connection
between law and morality,
"There is another crucial link between the virtues and law, for knowing how to apply
the law is itself possible only for someone who possesses the virtue of justice" [5].
'The law must respond to "living situations"...' Very good, but not in the sense that
it must take the situation as its norm. Justice must remain the norm, and
sometimes the law must regain ground for justice.
Basis and justification of law and authority
Social harmony, among persons capable of free choice, and hence of justice or
injustice towards each other, is not possible without law. But whence do we derive
the authority of the law?
a) does its force come simply from itself, from the fact that it "is there", legislated
or imposed by the powers that be? or:
b) can one find a principle by which to show that its authority comes also from
within, and so its force can be interiorised?
The first view has been proposed since ancient times. In Sophocles' Antigone,
Creon, the king, wishing to justify his tyranny: "whomsoever the city may appoint,
that man must be obeyed, in little things and great, in just things and unjust".
Hobbes held that: "Auctoritas, non veritas facit legem" (Authority, not the truth,
makes the law) (Leviathan, ch. 26). This is reflected in the program for life which
Goethe's Mephistopheles, the demon-spirit, proposes to men: "You have the Power,
and thus the Right" (Faust, Pt. II, Act V). In this view, law loses all interior force, it
becomes essentially coercive; its force deriving mainly from the threat of its
sanctions.
This view is held by those who profess an extreme positivism, rejecting any concept
of a natural law binding on all men. In a well-known lecture in 1897, Oliver Wendell
Holmes (1841-1935) [6], then a justice of Supreme Court of Massachusetts, sought
to reduce the whole function of the law to a simple indication of what the courts will
do, or a person may have to suffer, in the event of a particular mode of conduct. "A
legal duty so called is nothing but a prediction that if a man does or omits certain
things he will be made to suffer in this or that way by judgment of the court... The
prophecies of what the courts will do in fact, and nothing more pretentious, are
what I mean by the law... The duty to keep a contract at common law means a
prediction that you must pay damages if you do not keep it - and nothing else" [7].
This immanent view makes the law justify itself. What is enacted in law must be
obeyed. This leaves one without any grounds for objecting to a law, except one's
personal dislike. There is no common court of higher appeal.
An apparently "democratic" version of this is that the authority of the law comes
from the people: i.e. from the majority. But this still leaves minorities with no basis
for any rights except those that the majority (or the manipulators of the majority)
grant them [8].
Natural Law
The only true alternative to positivism is the view that the authority of the law
derives from what man is; and that man can find within himself a measure of the
rightness or wrongness of the law.
This view of the law goes back to the most ancient times; it has been the common
wisdom of the ages. Among the Romans, Cicero taught: "The rule of law is to be
drawn from the inner nature of man" [9]. And so St. Thomas Aquinas: "Every
humanly conceived law has the true character of law insofar as it is derived from
the law of nature. If in some respect it diverges from the natural law, it is no longer
a law but a corruption of the law" [10].
The Nuremberg trials after World War II seemed to promise a revival of the notion
of the Natural law, standing higher than any state law. But this tendency was soon
strongly countered by the positive school dominant in modern jurisprudence,
perhaps because it was realized that the natural law necessarily points to a higher
authority than man himself, governing all the affairs of mankind.
The Encyclopedia Britannica, in an article entitled "Law, morality and natural law",
treats of the natural law very marginally and almost dismissively. "The attempt to
base norms on some such category of facts [about the nature of man and his
adjustment to the world] has for two millennia been associated with the concept of
natural law... It has always been possible to trace a mainstream of natural-law
thought, flowing from Aristotle's premise that the "nature" of any creature, from
which obligations must be derived, is what it will be in its fullest and most perfect
development. For man, this means what he is when the powers and qualities
distinguishing him from other creatures, namely, his reason and his impulse to
social living, are fully developed. Natural law embodies those obligations that will
appear if mankind's reason and sociality are fully unfolded. A major difficulty
presented by this attempt to develop normative standards appears to be that it is
very difficult to demonstrate, let alone create a sense of obligation towards values
that are only immanent".
Comment: the implication - that it is easier to demonstrate the worth of material
or external values - is not evident. One simply cannot prove by any empirical
means the worth of values nor can one demonstrate which are higher among them.
Either one holds that any scale of values is entirely subjective, or else allows that
certain immanent values or norms (the desire for truth or justice, the sense that
the truth can only be one, and that justice means "to each his due") are present,
connection between the two, and illustrate the difficult questions that may arise
from this necessary relationship.
The answer given to the first question will depend on one's notion of the nature and
purpose of law. Here the thomistic understanding differs very fundamentally from
the notion inspiring much of Anglo-Saxon jurisprudence. "Thomists believe the
purpose of law is to promote virtue: in the social contract theory underlying AngloSaxon jurisprudence, the law represents the minimum infringements on personal
liberty necessary to regulate social life" [13].
Is there a moral duty not to exceed the speed limit in all circumstances? Is there a
moral duty to pay all of one's taxes if one knows that part is used to support
immoral public programs (abortion services, etc.)?
The answer to the third question is clear: one must obey God (and one's
conscience) rather than men.
The fourth question is really if and when there may be a duty to overthrow an
unjust regime. The answer will depend principally on the degree of injustice and on
whether it can be changed by other non-violent remedies, bearing in mind that
violent remedies tend to lead to other injustices and further violence.
Hadley Arkes, Professor of Jurisprudence and Political Science at Amherst College,
offers a very logical criticism of the position that would totally detach law from
morality. I will quote the Introduction at length, inserting at some point just a brief
comment:
"In the opening passage of the Politics, as Aristotle begins to explain the nature and
ends of a polity, he takes care to make the elementary point that 'men do all their
acts with a view to achieving something which is, in their view, a good'. Whether
we seek to change any state of affairs or to resist change..., all of our actions imply
at least a rough understanding of the things that are, in general, good or bad,
better or worse. When we contemplate those things that stand, universally, as good
or bad, justified or unjustified, we are in the domain of morals (or ethics); and as
Aristotle understood, the matter of ethics is, irreducibly, a practical concern: ethics
involves an understanding of the standards that ultimately guide our practice or the
activities of our daily lives.
Those standards, of necessity, are abstract; if they were not, they could not be
universal in their application. There is nothing "empirical" about them, and yet no
practical action may be taken in our daily lives, no decision may be made between
one course of action or another, without looking outward [or also inward?] to these
general understandings about the things that are right and wrong, just and
unjust...
But as Aristotle recognized, [certain moral presuppositions] also constitute the
foundation of politics and political understanding. It was the mark of Aristotle's own
understanding that his work on the Ethics immediately preceded and formed the
groundwork for his treatise on politics. At the end of the Ethics, Aristotle derided
those Sophists who sought to teach what was desirable in politics simply by making
a compilation of all existing laws and constitutions and affecting to choose "the
best" - as though the choice of the best would well up from the list, without any
need to reflect on the principles of judgment. For it was only from the principles or
standards of judgment that the distinction between the good and the bad could
finally be drawn. In politics we are faced with the task of legislating, of making laws
that are binding on whole communities. The act of legislating would stand out as a
massive act of presumption unless it were understood that there are in fact
propositions with a universal reach, which can define what is good or bad, just or
unjust, for people in general. If that were not the case, if those principles of justice
did not exist, it would be impossible to show why it should ever be justified to
restrict the freedom of individuals and displace their private choice with the
imposition of a common law.
The central questions in politics [and in jurisprudence] are questions about the
nature of justice, and the people who spend their lives talking about political events
- whether they are historians, economists, citizens, or philosophers - all find
themselves casting judgments. They will offer judgments about the kinds of public
policies that are right and wrong, about the revolutions in this world that are good
or bad, and about the kinds of political regimes that are just and unjust. And yet, to
place one set of laws or one political order above another, to arrange things in a
hierarchy of preference or desirability, is to render a judgment that is distinctly
moral...
In short, the judgments on politics that seem to be offered so widely and
emphatically today would have to imply the existence of moral principles, the
principles on which moral judgments would have to be founded if they are to be
regarded as valid or comprehensible. But ... the paradox of our own day is that
these political judgments are offered most intensely at a time when more and more
literate people have become convinced that there are no principles of morals and
justice in the strictest sense. They have become convinced, that is, that there are
no propositions about the nature of right and wrong which are both universal and
true, and which therefore hold their truth across cultures. Anyone with experience
in the academy will recognize that moral "relativism" has become the secular
religion these days among those with a college education. In this persuasion, moral
understandings are replaced by "values," which are regarded as "good" and valid
only because they are "valued" by the person or the culture that holds them."
Comment: Some people would see in a "value system" a possible replacement for
a "moral system". This is to confuse notions. A value system implies an order of
goods, whether subjectively or objectively appreciated, whether derived from
reason or faith, or from both. In itself it does not enter the field of morals, though it
may lead to it. A moral system, which must accompany any belief in free choice,
implies the possibility of acting "rightly" or "wrongly", for or against one's personal
system of values (however subjectively these may be held). If, say, friendship or
sincerity forms part of one's "value system", it takes only elementary selfawareness to realize that one can treat the value as it deserves, i.e. as one should;
and that is to step from the mere intellectual awareness of something to be valued,
to the moral awareness of how it can be treated well or badly, rightly or wrongly. If
one has no sense of duty towards one's values, no sense that one should be a
reliable friend or a sincere companion, then one cannot claim to possess any real
"value system" at all.
Law is an enactment made by the state. It is backed by physical coercion. Its breach is punishable by
the courts. It represents the will of the state and realizes its purpose.
Laws reflect the political, social and economic relationships in the society. It determines rights and
duties of the citizens towards one another and towards the state.
It is through law that the government fulfils its promises to the people. It reflects the sociological
need of society.
Law and morality are intimately related to each other. Laws are generally based on the moral
principles of society. Both regulate the conduct of the individual in society.
They influence each other to a great extent. Laws, to be effective, must represent the moral ideas of
the people. But good laws sometimes serve to rouse the moral conscience of the people and create
and maintain such conditions as may encourage the growth of morality.
Laws regarding prohibition and spread of primary education are examples of this nature.Morality
cannot, as a matter of fact, be divorced from politics. The ultimate end of a state is the promotion of
general welfare and moral perfection of man.
It is the duty of the state to formulate such laws as will elevate the moral standard of the people. The
laws of a state thus conform to the prevailing standard of morality. Earlier writers on Political
Science never made any distinction between law and morality.
Plato's Republic is as good a treatise on politics as on ethics. In ancient India, the term Dharma
connoted both law and morality. Law, it is pointed out, is not merely the command of the sovereign,
it represents the idea of right or wrong based on the prevalent morality of the people.
Moreover, obedience to law depends upon the active support of the moral sentiments of the people.
Laws which are not supported by the moral conscience of the people are liable to become dead
letters.
For example laws regarding Prohibition in India have not succeeded on account of the fact that full
moral conscience of the people has not been aroused in favor of such laws.
As Green put it, "In attempting to enforce an unpopular law, a government may be doing more harm
than good by creating and spreading the habit of disobedience to law. The total cost of such an
attempt may well be greater than the social gain."
Although law and morality arc interdependent yet they differ from each other in their content,
definiteness and sanction.
Some points of distinction between law and morality may be brought out as follows:
Law:
1. Law regulates and controls the external human conduct. It is not concerned with inner motives. A
person may be having an evil intention in his or her mind but law does not care for it.
Law will move into action only when this evil intention is translated into action and some harm is
actually done to another person.
2. Law is universal in a particular society. All the individuals are equally subjected to it. It does not
change from man to man.
3. Political laws are precise and definite as there is a regular organ in every state for the formulation
of laws.
4. Law is framed and enforced by a determinate political authority. It enjoys the sanction of the state.
Disobedience of law is generally followed by physical punishment.
Morality:
1. Morality regulates and controls both the inner motives and the external actions. It is concerned
with the whole life of man.
The province of law is thus limited as compared with that of morality because law is simply
concerned with external actions and docs not take into its fold the inner motives.
Morality condemns a person if he or she has some evil intentions but laws are not applicable unless
these intentions are manifested externally.
2. Morality is variable. It changes from man to man and from age to age. Every man has his own
moral principles.
3. Moral laws lack precision and definiteness as there is no authority to make and enforce them.
4. Morality is neither framed nor enforced by any political authority. It does not enjoy the support of
the state. Breach of moral principles is not accompanied by any physical punishment.
The only check against the breach of morality is social condemnation or individual conscience.
'Moral actions are a matter of choice of inner conscience of the individual, laws are a matter of
compulsion'.
5. Morality is studied under a separate branch of knowledge known as Ethics.
We may conclude the discussion in the words of Gilchrist, "The individual moral life manifests itself
in manifold ways. The state is the supreme condition of the individual moral life, for without the
state no moral life is possible.
The state, therefore, regulates other organizations in the common interest. The state, however, has a
direct function in relation to morality."