respect the eight principles of the rule of law, their laws can influ- ence the . significant aspect of morally healthy relationships between citizens and officials. B. Legal Principles as the Joint Product of Legal Rules (and possible relationship between a norm's having the status of a legal norm and that. The popular conception of the connection between law and morality is that in morality, and identifies the rules of law with the principles of abstract justice.
Clearly the explanation of "law" has to account for its use in all these contexts and equally clearly any explanation which is so wide and general can be of very little use to legal philosophers.
Only one assumption can the explanation of "law" hope to provide the answer to the legal philosopher's inquiry into the nature of law. That assumption is that the use of "law" in all its contexts but one is analogical or metaphorical or in some other way parasitical on its core meaning as displayed in its use in one type of context and that that core meaning is the one the legal philosopher has at the centre of his enquiry. Unfortunately, the assumption is mistaken. Its implausibility is best seen by examining the most thorough and systemic attempt to provide an analysis of "law" based on this assumption, that proposed by John Austin in The Province of Jurisprudence Determined.
The Lawyers' Perspective Many legal philosophers start from an unstated basic intuition: Quite naturally and imperceptibly they adopted the lawyers' perspective on the law.
Lawyers' activities are dominated by litigation in court, actual or potential. They not only conduct litigation in the courts. They draft documents, conclude legal transactions, advise clients, etc.
From the lawyer's point of view the law does indeed consist of nothing but considerations appropriate for courts to rely upon. Hans Kelsen says he follows a combination of the linguistic approach and the institutional approach: In defining the concept of law we must begin by examining the following questions: Do the social phenomena generally called law present a common characteristic distinguishing them from other social phenomena of a similar kind?
The clue to the methodological approach Kelsen was in fact pursuing is in his insistence that legal theory must be a pure theory. Kelsen regarded it as doubly pure. It is pure of all moral argument and it is pure of all sociological facts. Kelsen indicates his belief that the analysis of legal concepts and the determination of the content of any legal system depends in no way at all on the effects the law has on the society or the economy, nor does it involve examination of people's motivation in obeying the law or in breaking it.
For Kelsen, it is self-evident that legal theory is free of all moral considerations. The task of legal theory is clearly to study law. If law is such that it cannot be studied scientifically then surely the conclusion that if the law does involve moral considerations and therefore cannot be studied scientifically, then legal theory will study only those aspects of the law which can be studied scientifically.
Since Kelsen has no good reason to insist that legal theory should be free from moral consideration, he has no good reason to delimit the law in the way he does. The international Approach It is the lawyer's perspective which delivers the verdict.
Yet there is something inherently implausible in adopting the lawyer's perspective as one fundamental methodological stance. There is no doubting the importance of the legal profession and of the judicial system in society.
It is however, unreasonable to study such institutions exclusively from the lawyer's perspective. Institutional approach seems much superior to its rivals. The institutional approach strives to present an analysis of a central political institution should be accepted as the analysis of law. From the institutional point of view, the basic intuition is the starting point for further critical reflection.
It is entirely plausible to regard the notion of law as bound up with that of a judicial system but what are the essential characteristics of a court and why are they important to the political organization of society?
Three features characterize courts of law: They deal with disputes with the aim of resolving them. They issue authoritative rulings which decides these disputes.
In their activities they are bound to be guided, at least partly, by positivist authoritative consideration. At the highest level of philosophical abstraction the doctrine of the nature of law can and should be concerned with explaining law within the wider context of social and political institutions. It shows how the inclination to identify the theory of law with a theory of adjudication and legal considerations with all those appropriate for courts is based on a short sighted doctrine overlooking the connection of law with the distinction between executive and deliberative conclusion.
Clearly, a theory of adjudication is a moral theory. It concerns all the considerations affecting reasoning in the courts, both legal and non-legal. When the doctrine of the nature of law is identified with a theory of adjudication it becomes itself a moral theory. The doctrine of the nature of law yields a test for identifying law the use of which requires no resort to moral or any other evaluative argument. But it does not follow that one can defend the doctrine of the nature of law itself without using evaluative arguments.
Its justification is tied to an evaluative judgment about the relative importance of various features of social organizations and these reflect our moral and intellectual interest and concerns.
Law and Morality 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.
Relationship between Law and Morality or Ethics 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. 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. The total cost of such an attempt may well be greater than the social gain. Some points of distinction between law and morality may be brought out as follows: The Oxford English Dictionary defines the law as: The central themes of positivism are the contentions: In this essay I will examine the positivist assertion that law is identifiable independently of morality, with a particular focus on the theory of H.
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. All the individuals are equally subjected to it. It does not change from man to man. Political laws are precise and definite as there is a regular organ in every state for the formulation of laws.
It enjoys the sanction of the state. The fear of punishment acts as a deterrent to the breach of political law. It is concerned with the whole life of man. Their self-interest as a class, group or nation would inevitably set them in opposition to one another. If one does not acknowledge transcendent truth, then the force of power takes over, and each person tends to make full use of the means at his disposal in order to impose his own interests or his own opinion, with no regard for the right of others" Centesimus Annus, We see this illustrated, for instance, in Rousseau's philosophy.
He bases society, not on man's nature, but on a concurrence of individual wills becoming the general collective will his "contrat social". This type of liberalism has in it the roots of democratic totalitarianism.Utilitarianism: Crash Course Philosophy #36
Alistair McIntyre says that any sincere claim that the institutions of law embody the virtue of justice "represents the appeal to an absolute standard that lies beyond all secular and particular codifications.
On this medieval view, as on the ancient, there is no room for the modern liberal distinction between law and morality, and there is no room for this because of what the medieval kingdom shares with the polis, as Aristotle conceived it. Both are conceived as communities in which men in company pursue the human good and not merely as - what the modern liberal state takes itself to be - providing the arena in which each individual seeks his or her own private good" After Virtue, p.
Right or wrong have to be proposed, proved, judged upon. According to what standard? Simply according to what the law has to say? But then can a law itself be judged right or wrong? We are always brought back to the question of the legislator's or judge's standards. If he cannot find them in the written law itself, then he necessarily derives them from other discipline or mental position.
Either one comes back to a truth, true for all; or there is no such thing as truth or justice or objective right or wrong; and there is no basis, except force, to resist positive law. St Thomas taught that men have a connatural inclination to understand what is right and wrong according to their nature. This he called "synderesis". The Encyclopedia Britannica objects: But natural lawyers faced with the fact that men's consciences do not coincide explain that conscience may err and reason be corrupt.
Invocation of synderesis is in fact helpful not as an account of how one may arrive at actually based normative standards but as an illustration of the psychological tendency of men to assert values".
The relationship between law and morality The positivist school would maintain an absolute separation, holding there is no relationship. The Encyclopedia Britannica sidesteps this issue. In a section "Law, Morality and Natural Law", it states: The importance of the distinction is illustrated by the main questions to which it gives rise: The questions listed are important and well put.
But, rather than rising out of the "distinction" between law and morality, they presuppose the essential 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.
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: 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: Whether we seek to change any state of affairs or to resist change 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: 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? 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.
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. 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 self-awareness to realize that one can treat the value as it deserves, i.
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. But let us continue with Professor Arkes' Introduction: In the circles of those who discuss high-minded things, the most widely traveled fallacy these days seems to be the notion that the presence of disagreement on matters of morals must indicate the absence of universal truths. Yet, it is not uncommon for mathematicians to disagree over proofs and conclusions, and nothing in their disagreement seems to inspire anyone to challenge the foundations of mathematics or to call into question the possibility of knowing mathematical truths.
The challenge is not offered, the doubts are not registered, because it is understood that mathematics rests on a body of axioms that guarantee the existence of some right answers.
It seems to be merely assumed, without critical reflection, that mathematics is somehow different in that way from moral understanding. In that respect, our modern outlook depends on a critical act of forgetting The central problem, of course, involves the ground on which we can claim to "know" the existence of morals or any truth of moral standing. That question is posed to us in the most dramatic and consequential way in politics, because in politics people are being committed through the exercise of authority: That state of affairs presents the sternest test of the question of whether those who make law for others are acting merely on the basis of their own self-interest, or whether they are legislating on the basis of propositions that are indeed valid and binding for everyone.
But there is always the possibility of a tension between self-interest and morality, between the things that may give us pleasure and the things that we are obliged to do out of a respect for the commands of moral reason.
In fact, there would be no real meaning for morality in our language and our lives if morals were reduced simply to those things which accorded with our own self-interest Any moral principle will come into conflict, at one point or another, with someone's self-interest. And that is the perennial problem for the polity as it faces the need to legislate on any matter, not merely on questions of war and abortion But that is simply to recall the connection between morals and law that was made at the very beginning of political philosophy: In the first pages of the Politics, where Aristotle set out to explain why a polity is necessary, he explicitly rejected the rationales that were to become familiar and dominant in our own day.
He rejected the contention that a polity can be justified by the need to provide security against assaults and to promote commercial intercourse.
What he argued instead was that the case for polity arose decisively, preeminently, from the existence of morals itself - and from the nature of a being who had the capacity for morals.
It is a measure of the erosion in our own intellectual tradition that this original understanding of the foundations of law and polity may come as a surprise to most of our educated classes today, even though it was firmly settled among the literate in the middle of the last century. What is even more sobering is that this ancient teaching is likely to be quite as unfamiliar to most of the men and women who fill out the judiciary.
It would be no small step toward the restoration of our own, best tradition - and no mean entry into the "first principles" of morals and justice - if we recalled, in the first instance, this original case for polity and the classic understanding of the connection between morals and law" .
Now, with many thanks to Professor Arkes for that rich contribution, let us develop some further reflections. The clash of law and morality Such a clash is not logical among jurists. The logical thing is for the jurist to seek the moral basis at least in terms of justice to every law, for without that basis, it cannot be a just or legitimate law. It cannot mean "to each what he holds or claims as his due". Society is not possible if "rights" are defined subjectively, and law courts tend to uphold such subjective definitions.
But this is the current trend. A dominant principle underlying much of modern popular psychology is that man identifies himself in complete freedom; he is a subject of "self-identification" or "self-definition". This tends to permeate education, and is reflected at the highest level of contemporary civil jurisprudence, being set forth as a basic principle of the majority judgment in the U.
Supreme Court Case, Planned Parenthood v. It follows that every individual is his own project: He builds from scratch, as he chooses, freely using the materials and situations of life so as to achieve his own project. One of the sayings of Oliver Wendell Holmes was, "the only rule of the law that I know is the will of the majority".
But majority rule is already a relativization of the rule of law. Why should not every minority claim to have their minority rights respected, even to the extent of having their own minority laws? And why should this not apply even to a minority of one? It is inevitable that we reach such a position once every objective and universal concept of truth, morality and justice is rejected. We are reaching it today.
The greatest degradation and instrumentalization of the law is shown in the "principled" rejection of the need to base law on morality. A jurist - lawyer or judge - without a principled sense of justice cannot be a good jurist.
Responsibility of civil authorities towards public moral order Such a responsibility exists, although some would deny it.
Because there is a public moral order just as there is a private one.
Law and Morality | posavski-obzor.info
Today everyone accepts that governments and laws must be directed towards preserving a healthy environment that does not harm or contaminate men's physical state. It is becoming more than appropriate to appeal to "ecology" defined as "study of relationships between organisms and their environment" to help people reflect that man's interior state can also be contaminated and needs a non-contaminated and non-exploitative moral environment.
Civil law penalizes theft or arson because they are "wrong", they infringe the rights of others. It similarly treats blackmail, where the harm threatened may be more interior.
Theory of Relationship between Law and Morality
Most legal systems still penalize the teaching of e. The same should be true of the peddling of pornography; its harm is not simply that it "shocks" some people, but that it obsesses and takes away freedom, especially the freedom to love. The law is on the side of freedom - of freedom to know the truth that liberates Hence the challenge to all thinking jurists: What must be sought is a basis which can be seen to be common to all men, and which carries with it is own internal appeal.
This is an attractive goal. Here it is so important to believe in the power and attraction of the truth. That great jurist, Sir Edward Cokewho may well be considered the founder of English common law, once spoke of "the gladsome light of jurisprudence".
A phrase to be borne in mind by all who love both truth and law. Hence it is legitimate to speak of the splendor of justice splendor iustitiae and of the splendor of the law splendor legis as well: