The issue of law and morality relationship

Necessary Connection between Law and Morality | Oxford Journal of Legal Studies | Oxford Academic

the issue of law and morality relationship

On the one hand, legal positivism suggests that the boundary between law and morality is strict and exclusive. That is, the question of what the law is and the. The right relationship between law and morality . Hence arises the fundamental question of what is due to each one, and from this the further. delimitation of the jurisdictional competence of the institutional custodians of law and morality, viz: the State and the Church. When this question was put to our.

Relationship Between Ethics and Laws March 1, by wat? Here I am going to share some thoughts of mine on how ethics and laws are related, as well as the differences between these two. Ethics, also described as moral philosophy, is a system of moral principles which is concerned with what is good for individuals and society. In general, laws are made based on moral values of a particular society. They describe the basic behavior of human beings. In another word, laws represent the minimum standards of human behaviors, that is, ethical behavior.

They both provide people guidelines of what may do or what may not do in certain situations. This is dramatically illustrated in Sophocles' tragedy Antigone, in which the heroine defies the decree of the king the source of "legal right" in the circumstances and buries her brothers an act the audience would assume was morally right.

the issue of law and morality relationship

The contrast between what the state demands and what the gods demand is not the only way that this legal v. We find it also in the important Greek philosophers, who frequently discuss the distinction in terms of appearance and reality, or between what superficially seems or appears to be the case and what a thorough rational investigation reveals. Plato, for example, holds that knowledge of what is just or moral, and the ability to distinguish true justice or morality from what is merely apparently just depends on the full development and use of human reason.

According to Plato, there is a very close connection between true justice or morality and human well-being or flourishing. Legal and political arrangements that depart too far from true justice should, if possible, be replaced by arrangements that better promote justice and thus well-being.

Ethics, therefore, has claimed a right to criticize legal arrangements and recommend changes to them. I think now in terms of my own rights, not those of others. The fundamental orientation of justice has been reversed: Justice no longer implies a quality of soul, a movement outward toward others; it concentrates on the defense of external rights.

In this sense it is a matter of taking rather than giving.

Relationship between law and religion, morality and culture | Justice Micar - express-leader.info

The change accelerated with a new conception of the person's relation to society. This was no longer based on a natural human inclination but became instead an artificial creation, set up to meet human needs and to prevent destructive rivalry.

Under these conditions the relation between justice and charity degenerated, with consequent serious problems. Since the two were now moving in opposite directions, the one giving and the other taking, these virtues could no longer operate harmoniously. Justice, with its stronger, more immediate claims, left little to charity but a supplementary generosity, which could easily be included among the duties of justice as far as the law allowed. As a result, Christian terms such as charity, bounty, mercy, benevolence, and almsgiving were considerably devalued" [12] Pope John Paul II, in Evangelium Vitaesays that in order to save true democracy and freedom, "there is a need to recover the basic elements of a vision of the relationship between civil law and moral law, which are put forward by the Church, but which are also part of the patrimony of the great juridical traditions of humanity" no.

The denial of any common natural law utterly undermines any philosophy of human rights. Pope John Paul insisted that it can lead to "totalitarianism [which] arises out of a denial of truth in the objective sense. If there is no transcendent truth, in obedience to which man achieves his full identity, then there is no sure principle for guaranteeing just relations between people.

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. 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.

the issue of law and morality relationship

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.

the issue of law and morality relationship

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 essay

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.

Ethics, morality, law – what’s the difference?

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.

Categories: