Law
Law and Morality
Law and morality are interconnected concepts that influence each other. While law is a set of rules and regulations enforced by the state, morality refers to personal or societal principles of right and wrong. The relationship between law and morality is complex, as laws often reflect moral values, but may not always align with individual moral beliefs.
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eBook - PDFPolitics, Law, and Morality
Essays by V.S. Soloviev
- Vladimir Soloviev, Vladimir Wozniuk(Authors)
- 2008(Publication Date)
- Yale University Press(Publisher)
Obviously, the relation between Law and Morality is too complex for the principle of division to be settled here by a simple characterization alone. In proceeding exclusively from an opposition of the legal and moral realms and neglecting their commonality, attempts to insti-tute this principle turn out to be unsuccessful. It remains to try out the reverse path—going from the common to the diverse. 4. Human speech in all languages indisputably attests to the core intrinsic con-nection between Law and Morality. The concept of “right” and its correspond-ing concept “duty” enter into the realm of moral ideas so much so that they can directly serve for their expression. Everyone understands and no one will dis- Law and Morality 145 pute such ethical assertions as: I see my duty to refrain from everything odious; or, out of human dignity I recognize (in my person) a right to be respected; I am obliged, according to the extent that I am able, to assist my fellowman and to serve the common good; that is, my neighbors and the whole of society have a right to my assistance and service; finally, I am obliged to adjust my will to that which I regard as absolutely supreme, or—in other words—this absolutely supreme thing has the right to a pious attitude on my part (hence, the idea of sacrifice—the main basis of every divine worship). In all languages, moral and juridical concepts are expressed either by identi-cal words or derived from one root. The Russian dolg , like the Latin debitum — from which come the French devoir and the English duty —and in like manner the German Schuld, Schuldigkeit have both a moral and a legal meaning; dikhe and dikhaiosune, jus and justitia, just as in Russian pravo and pravda, in German Recht and Gerechtigkeit, in English right and righteousness, differentiate these two meanings only by prefixes (compare also the Hebrew, tsedek and tsedeka ).
eBook - PDFThe Impact of the Law
On Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies
- John Witte, Michael Welker, John Witte, Michael Welker(Authors)
- 2021(Publication Date)
- Evangelische Verlagsanstalt(Publisher)
Part One: Does Law Teach Values and Virtues? Law, Morality, and the Fragility of the Western Legal Tradition Patrick Parkinson Is Law Inherently Moral? It is a defensible proposition in Western societies that law plays a role in character formation, ethical education, and the communication of values in late modern plu-ralistic societies, and that it should continue to do so. Law has played a quite fun-damental role in social ordering, providing a framework for the relationship be-tween government and governed, between husband and wife, parent and child, and employer and employee. More generally, law orders the relationships among citizens who must coexist in the villages, towns, and cities of our shared commu-nal life. Law also establishes a framework for society ’ s mediating institutions such as corporations, schools, universities, and community organizations. At least to some extent, universally accepted moral norms of conduct are em-bedded in the law as forms of legal obligation or prohibition. The law which is written on people ’ s hearts (Romans 2:15) is also to be found in the statute book. Prohibitions found in the Ten Commandments against such wrongs as murder, theft, and perjury are both moral and legal norms in all Western societies. The overlap between religiously inspired moral codes and legal obligations is of course far from complete. To honor one ’ s father and mother is a moral obliga-tion that is given weak effect in terms of legal (and financial) obligation in many Western societies, although at least some jurisdictions give some effect to the no-tion of “ solidarity ” between generations. 1 The moral prohibition against adultery no longer has a place in most Western legal systems. Even so, the average citizen would be likely to affirm that the most basic legal rules of a society have their basis in shared moral values that are reflected in the law.
eBook - ePub- Jean Piaget, Leslie Smith(Authors)
- 2013(Publication Date)
- Routledge(Publisher)
Are these moral or legal? And the various types of vengeance and reprisals? And the rules relative to the sexual act, etc. etc.? All of the intermediate cases tie together the extreme poles, which alone are well defined. An essential theoretical problem is thus immediately posed for the sociology of law, namely, how to distinguish Law and Morality. Even in the matters that concern contemporary Western societies, the ease of making this distinction in practice in no way does away with the very great difficulty of formulating it in theory. This difficulty is attested by the multiplicity and diversity of conceptions that have been proposed by the best [p. 178] authors. We will now expound some of these conceptions, because this discussion, even in a summary form, will permit us to bring to light several of the essential aspects of this formidable question. A first group of doctrines can be characterized by the conception of a commonality of nature between Law and Morality: they differ only in their greater or lesser degree of collective or public coordination. This is in summary form the opinion of Duguit as well as the view of Durkheim and his school. According to Durkheim, law, like morality, is characterized by the existence of obligatory rules, sanctioned by the collective. But legal sanctions are organized into rule systems 11 whereas the sanctions that define morality are ‘diffuse’ – that is, not codified. Besides the prohibitory sanctions common to morality and law, it should be added that law also knows ‘restitutive’ sanctions unknown to morality. (There is no blame attached to restitutive sanctions; they simply compensate for damages of a material order, as in a civil case.) But since the degree of codification concerns only the external form of rules, moral and legal realities are fundamentally identical. Both proceed from the same constraint that the group exercises on individuals
eBook - PDFLegal Thinking
Its Limits and Tensions
- William Read(Author)
- 2016(Publication Date)
Chapter Five TENSION BETWEEN LAW AND MORALS Tension between structures and freedom about what the law re-quires would exist even if the law were a closed system isolated from outside influences. But, of course, legal systems (unlike games and some religions) are not closed; and external forces, both normative and factual, are at work creating their own ten-sions with the law. To the extent that these external forces are normative, the terms morals and moral norms are here used to designate them. Chapter 2, in describing the materials for legal thinking, listed several sources of moral norms: attitudes actu-ally prevailing in particular communities (mores); obligations as-sumed by those in positions of trust (ethics); obligations assumed by individuals for their own reasons, religious or otherwise (con-science); and ideals of right and wrong for governments in gov-erning and subjects in dealing with each other (justice and fairness). Tension between legal norms and norms generated by moral attitudes, obligations, and ideals—and not yet given the status of legal norms—can be characterized as tension between following legal procedures and paying attention to moral substance. Stated 102 TENSIONS IN LEGAL THINKING another way, it is tension between the substantive arbitrariness of law, which assumes that by legal fiat shades of gray can be di-vided into black and white, and the procedural arbitrariness of morality, which assumes that usable norms can be directly de-rived from such elusive standards as public attitudes, the ethics and consciences of individuals, or the ideals of justice and fair-ness. Legal norms are by definition parts of a specific legal sys-tem.
eBook - PDF- Suri Ratnapala(Author)
- 2017(Publication Date)
- Cambridge University Press(Publisher)
I am liable to heavy penalties if I make a mistake in the declaration. If the tax manual is too complex and unclear, it will not only defeat the aim of efficient tax collection, but will also deny my moral right to know how to do what is right and avoid penalties. In this case clarity is both a managerial and a moral demand. The connection of internal and external moralities The external morality of law concerns the moral content of the rules. A law that authorises torture is bad and a law that bans torture is good. The internal 216 Law and Morality morality is about the qualities that make the law serve the general social purpose of human coordination. It provides stable rules of the game. Fuller conceded that a law that complies with internal morality may yet be unjust. The law in the People’s Republic of China that, until recently, prohibited parents from having more than one child was general, prospective, promulgated clearly, and so forth. Yet it has been widely condemned as unjust. Internal morality is logically consistent with external injustice. This does not mean that the internal morality is not true morality. Consider the frequently used example of two bad regimes, A and B. Regime A operates by clearly declared prospective and general rules that are consist- ently and scrupulously enforced, while regime B operates through ad hoc commands, retrospective laws, secret laws and extra-judicial punishment with- out charges or trial. Is there any moral difference between the regimes? Clearly there is. Regime A provides a degree of order that allows citizens to avoid official retribution and go about their lives even within the confines of harsh laws. In regime B nothing is certain and people are in constant jeopardy. History demonstrates repeatedly that the internal and external moralities of law are symbiotic.
eBook - PDF- Lindsay J. Thompson(Author)
- 2006(Publication Date)
- Information Age Publishing(Publisher)
35 Understanding Morality Morality is a framework of values, principled reasoning, and agency that is tested through performance in conditions of risk, danger, and uncertainty. • Leaders model morality, create moral climate, and make decisions involving others in response to competing values and moral claims. • Leaders are accountable for their exercise of power, the morality they model, the moral climate they create, and the moral quality of their decisions. 36 L. J. THOMPSON As you reflect on this definition of the term, “morality,” what associations and ideas come to your mind? What elements of this definition would you like to affirm? Why? What elements of this definition would you like to challenge? Why? How would you define morality? How does your definition compare with the one used in this book? The Moral Compass: Leadership for a Free World 37 What do you think is the purpose of morality? Why is morality important (or not)? Think about the way you answered these questions. On what foundation did you base your answers? How certain do you feel about the rightness of your answers? How comfortable would you feel explaining your answers to people you don’t know? Or to people you know very well? 38 L. J. THOMPSON WHAT IS MORALITY? If you read literature on morality, you will probably find it defined in several ways, although most of the definitions will have a lot in common. For this book, we are going to use a working definition of morality: Morality is a framework of vision, rules, fitness, and performance that defines and shapes character, especially in conditions of danger, risk, and uncertainty. This definition can certainly be contested, but as you read through the rest of the book you will find a reasonable case for its use. PERSPECTIVES ON MORALITY By origin, the difference between [morality and ethics] is that between Latin and Greek, each relating to a word meaning disposition or custom.
eBook - PDF- Suri Ratnapala(Author)
- 2013(Publication Date)
- Cambridge University Press(Publisher)
Yet it has been widely condemned as unjust. Internal morality is logically consistent with external injustice. This does not mean that the internal morality is not true morality. 198 Law and Morality Consider the frequently used example of two bad regimes, A and B. Regime A operates by clearly declared prospective and general rules that are consistently and scrupulously enforced, while regime B operates through ad hoc commands, retrospective laws, secret laws and extra-judicial punishment without charges or trial. Is there any moral difference between the regimes? Clearly there is. Regime A provides a degree of order that allows citizens to avoid official retribution and go about their lives even within the confines of harsh laws. In regime B nothing is certain and people are in constant jeopardy. History also demonstrates repeatedly that the internal and external moralities of law are symbiotic. One does not live long without the other. This is why the internal morality of law, under its other name, ‘the rule of law’, is widely regarded as a moral imperative. Ronald Dworkin and the integrity of law Ronald Dworkin, like Lon Fuller, advanced a theory of law that asserted a nec- essary connection between Law and Morality. There are similarities between the legal philosophies of these two Americans, though Dworkin hardly mentioned Fuller’s work. I will say something about these similarities in the course of this discussion. Dworkin is considered by many as the leading contemporary Amer- ican legal philosopher. He succeeded Hart in the chair of jurisprudence at the University of Oxford in 1969 and later held the WN Hohfeld chair of jurispru- dence at Yale University. He held chairs at University College, London and New York University. Dworkin’s philosophy was developed over two decades. Its most definitive statement is found in his book Law’s Empire.
eBook - ePubThe Logic of Choice
An Investigation of the Concepts of Rule and Rationality
- Gidon Gottlieb(Author)
- 2019(Publication Date)
- Routledge(Publisher)
IXLAW AND THE CONFLICT BETWEEN Law and MoralityThe demarcation between legal rules and other rulesThe concept of rule is not as perplexing as Hart suggests when studied in a functional setting. Rules, alongside with commands, orders, instructions, regulations, principles and the like are designed to guide and direct inferences leading to judgments and decisions. The identification of legal rules as a sub-species of rules advances our understanding; it calls for the articulation of a demarcation line between legal and non-legal rules. This demarcation is required not for abstract taxonomic reasons but for the practical purpose of telling which rules are applied and enforced by the machinery of a state. Hart succinctly illustrates in the Concept of Law the variety of laws, and the difficulties of compressing them into a single mould; legal rules which provide for the exercise of private or public legal powers, like the formation of contracts, the preparation of wills and the enactment of legislation, are very different indeed from the rules of criminal law which are more like orders backed by the threat of sanctions. On the other hand, rules such as the rules of statutory interpretation have no clear sanctions contemplated to secure their enforcement. The English system of common law also recognises certain species of custom as incorporated into the body of law applied by courts, so that the demarcation between law and non-law cannot be formulated in terms of the existence of a rule-making organ. The demarcation has for a long time been attempted – and criticised – in terms of the coercive nature of the legal order. Such demarcation is certainly not used by the law-applying organs themselves, and suggests a criminal law paradigm of law generally. But the demarcation problem is transformed when viewed in the context of the concept of rule. It is then no longer a question of defining law, but of identifying the rules which are considered by the state organs to belong to the system it administers. This function of identification is discharged by special rules which govern the recognition of legal rules as legal or at least as rules of the system. These rules of identification, or rules of recognition, are significantly resorted to only when the legal character of a particular rule is challenged. They are rules about the status of rules. In revolutionary situations like the Rhodesian rebellion, citizens and judges alike are torn between two rival authorities asserting legislative prerogatives, one in Rhodesia, the other in London. What this situation represents in jurisprudential terms is a competition between two sets of rules of recognition primarily for the loyalty of judges and other state organs. A revolution often involves the modification of the rules of recognition of a state system otherwise than in conformity with a prior set of secondary rules.1 The change of secondary rules generally affects the legal status of only a few enactments. They act on the periphery of a legal system. These rules of recognition play, therefore, a peculiarly circumscribed role: Graham Hughes has clearly indicated the limited impact of such rules in territories like Norway under Nazi domination where the obedience of the bulk of the population to the general body of the laws of Norway was in no way affected by the imposition of the despised Quisling regime and the rule of recognition characterising certain acts of his regime as legal acts.2
- Patrick Capps(Author)
- 2009(Publication Date)
- Hart Publishing(Publisher)
Instead, it establishes that the omnilateral will, expressed through legal norms and which delimit the domain of freedom for each member of a community, is isolated from morality. Law is, on this account, best described as a version of the bare-AT for this reason. The conflicts and disagreements which emerge in human communities over what morality requires and which ‘stand as obstacles to social co-operation’ are solved by law characterised in this way. 46 Now it may be that for Kant, like Hobbes, our capacity to reason morally is just too loose and variable (i) to establish determinate moral rules or rea-sons for acting, or (ii) to determine what the proper moral content of laws ought to be for both law-makers and citizens. 47 Clearly, Kant does not accept (i). I want to show that he must reject (ii) if he rejects (i). This argu-ment, then, implies that Kant cannot sustain the claim that the content of legal norms need only be conventional. To explain, Kant rejects (i) because he does think that moral reason can be employed to determine which, from a variety of possible actions, is morally preferable. He also thinks that general moral norms are explica-ble, such as the prohibition on lying. 48 This claim is so obviously a feature of Kant’s moral philosophy that it does not need further substantiation. 49 But if the moral correctness or otherwise of our actions is determinable for Kant, then so it is equally determinable when wrongs are committed against us by others. Crucially, then, such a determination would be Justification of the Integrated-Autonomy Thesis 175 46 Postema, above n 1, at 80. 47 See M Ridge, ‘Hobbesian Public Reason’ (1998) 108 Ethics 538, 543–5 for a discussion and critique of Hobbes’ views on this matter. 48 H Paton, The Moral Law (London, Hutchinson, 1948; translation of Kant’s Groundwork of The Groundwork of the Metaphysic of Morals , first published in 1785) 67–8 [4:402–3].
eBook - PDF- David Ingram(Author)
- 2006(Publication Date)
- Continuum(Publisher)
CHAPTER 2 Law and Morality The Nuremberg Tribunal and the war in Iraq suggest that morality might play some role in our understanding of what law is. Even if international law does not apply to these two events, moral (natural) law might. For, one might argue, even if no settled human-made laws were violated by the Nazis or by the invasion, moral laws might have been. But is natural law in itself enough to give us a complete and legitimate idea of law? If not, is it at least one necessary part of the law that needs to be weighed against other necessary parts? Or are legal positivists right in maintaining that we are obligated to obey the law independently of whether it is morally just? 2.1. NATURAL LAW THEORY: AQUINAS The idea of natural law – that there are universal principles of justice intrinsic to human nature and that human-made law must adhere to them – goes back to ancient Greece. Aristotle o ff ers an early formu-lation of it as follows: ‘If the written law tells against our case, clearly we must appeal to the universal law, and insist on its greater equity and justice’ (Aristotle 1941: 1375a). Aristotle’s idea was later devel-oped by a philosophy known as Stoicism, whose most famous legal theorist was the Roman philosopher, Cicero (106–43 bc ): ‘There will not be one such law in Rome and another in Athens, one now and another in the future, but all peoples at all times will be embraced by a single and eternal and unchangeable law’ (Cicero 1998: Bk III. 33). Cicero claims that natural law designates an unchanging and universal principle of nature – superior to any human-made law – whose authority comes from the ‘one lord and master of us all – the god who is the author, proposer, and interpreter of that law’. 16 Elsewhere Cicero goes on to argue that ‘inherent in the very name of law is the sense and idea of choosing what is just and right’, so that ‘in a community a law of just any kind will not be a law, even if the people .
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