Relationship between Law and Morality
The relationship between law and morality is one of the thorniest problems in political theory. Philosophers have long been taxed by questions related to the nature of law, its origins, and its purpose.
Is the law, for example, simply the application of a set of higher moral principles, or is there a clear distinction between law and morality?
How far does or should the law of the community seek to enforce standards of ethical behavior?
Such questions go to the heart of the distinction between two contrasting theories of law: natural law and positive law.
On the surface, the law and morality are very different things. “Law” refers to a distinctive form of social control backed up by enforcement; it, therefore, defines what can and cannot be done.
On the other hand, “Morality” concerns ethical questions and the difference between “right” and “wrong”; it thus prescribes what should and should not be done.
In one crucial respect, however, the “law” is a more clear concept to grasp than morality. While the law can be understood as a social fact, it has an objective character that can be studied and analysed.
In contrast, “morality” is by its very nature a subjective entity, a matter of opinion or personal judgement. For this reason, it is often unclear what the term “morality” refers to.
Are morals simply the customs and conventions that reign within a particular community, its mores?
Does morality need to be based upon clearly defined and well-established principles, rational or religious, which sanction certain forms of behaviour while condemning others?
Is it right for each individual to impose moral ideals on themselves, or, in other words, is morality only concerned with the individual?
Those who believe the law is or should be rooted in a moral system subscribe to some form of “natural law” theory. Theories of natural law date back to Plato and Aristotle.
Plato believed that behind the ever-changing forms of social and political life lay unchanging archetypal forms, the ideas of which only an enlightened elite, the philosopher-kings, had knowledge.
Therefore, a “just” society was one in which human laws conformed as far as possible to this transcendental wisdom.
This line of thought was continued by Aristotle, who believed that the purpose of law and organised social life was to encourage humankind to live in accordance with virtue. In his view, there was a perfect law, fixed for all time, which would provide the basis for citizenship and all other forms of social behavior.
Medieval thinkers such as Thomas Aquinas also took it for granted that human laws had a moral basis. Natural law, he argued, could be penetrated through our God-given natural reason and guides us towards the attainment of the good life on earth.
Relationship between “Natural Law” and “Natural Rights”
The demands of “Natural law” come to be expressed through the idea of natural rights. “Natural rights” were thought to have been invested in humankind by God or nature.
Thinkers such as John Locke and Thomas Jefferson proposed that the purpose of human-made law was to protect these God-given and inalienable rights.
However, the rise of rationalism and scientific thought served to make natural law theories distinctly unfashionable in the nineteenth century. Nevertheless, the twentieth century has witnessed a revival of such ideas, precipitated, in the cloak of legality, behind which Nazi and Stalinist terror took place.
The desire to establish a higher set of moral values against which national law could be judged was, for example, one of the problems which the Nuremberg Trials (1945–46) had to address.
Major Nazi figures were prosecuted for war crimes, despite the fact that they had acted legally in the eyes of the Nazi regime itself in many cases.
This was made possible by referencing the notion of natural law, albeit dressed up in the modern language of human rights. Indeed, it is now widely accepted that national and international law should conform to the higher moral principles set out in the doctrine of human rights.
The central theme of all conceptions of natural law is the idea that law should conform to some prior moral standards and that the purpose of the law is to enforce morality. This notion, however, came under attack in the nineteenth century by what John Osbourne called “the science of positive law.”
Positive Law – a Challenge to Natural Law and Morality
The idea of positive law sought to free the understanding of law from moral, religious, and mystical assumptions. Some of the well known advocate and thinkers of the positivism were Thomas Hobbes, John Austin and, H.L.A. Hart.
Thomas Hobbes’s Command Theory of Law
Many have seen its roots in “Thomas Hobbes’s command theory of law”:
“Law is the word of him that by right hath command over others.”Thomas Hobbes
In effect, the law is nothing more than the will of the sovereign.
John Austin’s Theory of Legal Positivism
By the nineteenth century, John Austin (1790–1859) had developed this into the theory of “legal positivism,” which saw the defining feature of law not as its conformity to higher moral or religious principles but in the fact that it is established and enforced by a political superior, a “sovereign person or body.” This boils down to the belief that a law is a law because it is obeyed. One of its implications is, for instance, that the notion of international law is highly questionable.
If the treaties and UN resolutions that constitute “international law” cannot be enforced, they should be regarded as a collection of moral principles and ideals and not a law.
H.L.A. Hart’s Concept of Law
A modern attempt to refine legal positivism was made in H.L.A. Hart’s The Concept of Law (1961). Hart was concerned with explaining the law not in terms of moral principles but by reference to its purpose within human society.
The “law”, he suggested, stems from the ‘union of primary and secondary rules’, each of which serves a particular function.
- The role of primary rules is to regulate social behavior; these can be thought of as the “content” of the legal system, for instance, criminal law.
- Secondary rules confer powers on government institutions; they specify how primary rules are made, enforced, and adjudicated and thus determine their validity.
While natural-law theories are criticised as being hopelessly philosophical, positive-law theories threaten to divorce law entirely from morality.
The most extreme case of this was Hobbes, who insisted that citizens had an obligation to obey all laws, however oppressive since to do otherwise would risk a descent into the chaos of the state of nature. Other legal positivists, on the other hand, believe that the law can and should be subjected to moral scrutiny and that it should be changed if it is morally flawed.
Their position, however, is that moral questions have no bearing on whether a law is legal. In other words, whereas natural law theorists seek to run together the issues of “what the law is” and “what the law ought to be,” legal positivists treat these matters as strictly separate.
However, an alternative view of the law emerged in the early part of the century, associated with the ideas of the famous American jurist Oliver Wendell Holmes (1809–94).
This is “legal realism”, the theory that it is really judges who make law because it is they who decide how cases are to be resolved. In this sense, all laws can be thought of as judge-made.
However, as judges are, in the vast majority of cases, non-elected, this view has disturbing implications for the prospect of democratic government.