Basic_Observations_on_Law_and_Morality

Basic Observations on Law and Morality Most recent alteration: September 10, 2001 At first there seems to be no distinction between law and morality. There are passages in ancient Greek writers, for example, which seem to suggest that the good person is the one who will do what is lawful. It is the lawgivers, in these early societies, who determine what is right and wrong. But it is not long before thoughtful people recognize the difference between what is actually legal, or legally right according to the political authorities and what should be legal. What should be legal roughly corresponds to what is really right or just, that is, what we would call morally right. We find, for instance, the distinction between what is legally or conventionally right and what is naturally (or as we would say today morally) right. Sometimes this is expressed as an opposition between what the gods command (i.e., what is morally right) and what the political authorities command (i.e., what is legally right). 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 contrast between what the state demands and what the gods demand is not the only way that this legal v. moral distinction is expressed. 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. Many debates about the law, when they are not merely debates about how legal precedent mechanically applies in a particular situation, are also ethical debates. Let's summarize the relationship between morality and law. (1) The existence of unjust laws (such as those enforcing slavery) proves that morality and law are not identical and do not coincide. (2) The existence of laws that serve to defend basic values--such as laws against murder, rape, malicious defamation of character, fraud, bribery, etc. --prove that the two can work together. (3) Laws can state what overt offenses count as wrong and therefore punishable. Although law courts do not always ignore a person's intention or state of mind, the law cannot normally govern, at least not in a direct way, what is in your heart (your desires). Because often morality passes judgment on a person's intentions and character, it has a different scope than the law. (4) Laws govern conduct at least partly through fear of punishment. Morality, when it is internalized, when it has become habit-like or second nature, governs conduct without compulsion. The virtuous person does the appropriate thing because it is the fine or noble thing to do. (5) Morality can influence the law in the sense that it can provide the reason for making whole groups of immoral actions illegal. (6) Law can be a public expression of morality which codifies in a public way the basic principles of conduct which a society accepts. In that way it can guide the educators of the next generation by giving them a clear outline of the values society wants taught to its children. BBC Morality can be roughly described as a set of values common to society, which are normative, specifying the correct course of action in a situation, and the limits of what society considers acceptable. Law can be seen as the state echoing, and seeking to uphold, these values. These descriptions can be seen to be, however, not entirely correct, and the issue of law and morality is undeniably complex. It is this, therefore, that we shall be examining in this essay. What is the law and what is moral' One of the major problems which arises when law attempts to take the above approach with regard to morality is the dynamic nature of any moral code. It will consistently change with time, to reflect a change in attitudes, and the law must attempt to stay abreast of the situation. An example of this can be seen in R v R (1991), which changed the law, so that rape within marriage became a crime. Previously, the law had seen this as impossible, since the wife was legally seen as being almost the property of the husband via the marriage agreement. Morally, this view had long been seen as outdated and wrong, yet the law was slow in adapting. This problem can further be seen in the area of embryology, where scientific advances have happened so swiftly that the law has trouble keeping pace with the new moral issues raised by in vitro fertilisation, cloning, stem cell research etc. In R v Human Fertilisation and Embryology Authority ex parte Blood (1997), the Court of Appeal forced a change in the law, due to circumstances unforeseen at the time the relevant statue was passed, providing another example of disparagement between the law and contemporary moral views. Emile Durkheim highlighted another problem with law echoing morality when he espoused the problems, in a modern, complex society of finding a moral code which all would agree on. Different groups have different attitudes, and as Jock Young pointed out, these attitudes are value judgements based on what an observer sees as being normal in society, and will, like all morals, change over time. If the law is to enforce morals, then it is faced with the problem that what one person considers immoral, another might not, so which viewpoint should it sanction' This can be seen in the case of Gillick v West Norfolk and Wisbech Area Health Authority (1986), where Mrs Gillick sought a declaration that what she saw as an immoral activity (making contraceptive advice and treatment available to girls under the age of consent) was, by the nature of its immorality, illegal. There was great moral conflict, as some saw this as immoral (as it would encourage underage sex) whilst others felt that it was moral (as underage sex would occur anyway, but the measures would prevent unwanted pregnancies). The question for the law was which moral viewpoint it would support. After a protracted battle, the House of Lords ruled 3-2 against Mrs Gillick, but stated that they acted due to what was legal under the relevant statutes, rather than because of moral arguments. This leads us on to the matter of what exactly the relationship between law and morality is, but another issue must be addressed first. If such conflict can arise between law and morality, then the two can clearly not be synonymous. What then are the similarities and differences between the two' As we have already seen, morals can be seen as a set of values which are enforced by law. Morals change over time (in fact some, such as Friedrich Nietzsche, went as far as to say that morals are little more than contemporary prejudices that suit people’s needs at a given time), but nevertheless, contain some basic elements. They are primarily voluntary and subjective, and whilst certain views may be persuasive, one is under no obligation to hold them. They define not how one ‘must’ act, but how one ‘ought’ to act, and whilst they are not subject to moral enforcement, they can be informally imposed by, for example, ostracising someone who doesn’t follow a particular belief. Morals tend to develop slowly, often over hundreds of years, and are thus deeply influenced by the development of local culture. Thus western morals owe a great deal to Judaeo-Christian beliefs, while those in the east are more Islamic based. In comparison to this, whilst law can be related to this culture (e.g. Lord Atkins’ ‘neighbour principle’, the basis of the tort of negligence, is derived from the biblical command to ‘love thy neighbour’) it can also be completely secular, and is introduced almost immediately. Whilst actions like theft and murder are generally condemned by both law and morality, crimes such as parking violations are not seen as immoral, whilst immoral acts such as adultery are not criminal under UK law (although it is grounds for divorce). Laws are also fully compulsory (one ‘must’ obey them) and are formally enforced through the court system. Law and morality can therefore be seen to be particularly different, and one would thus expect their relationship to be similarly separate. They are, however, intertwined, an example of which being the ‘vote of conscience’. When MPs debate a law involving strong moral points, they are permitted to vote as their moral belief dictates, as opposed to party will, so laws can therefore have a moral nature in their existence. We therefore return to the earlier question of the relationship between the law and morality. Theories on the Relationship There are various theories on what the relationship should be, and we shall look at these and examine further how far the law upholds the moral values of society, having already seen the difficulties in defining what these values might be, if they exist. The first theory to be looked at is that of natural law, espoused by St Thomas Aquinas, and more recently Professor Lon Fuller. This states that there is a higher law (reflected possibly by a moral code) to which law must conform. One should disregard a law which is at odds with this natural code, unless doing so would lead to social unrest. The problem arises in establishing what this higher code is, although it would seem to be based on human rights. Aquinas saw it as coming from God, whilst Fuller (in The Morality of Law) stated that a legal system would only conform to this higher order if it followed eight principles; Generality (using rules rather than random judgements), Promulgation (making the rules known), Non-retroactivity of rules, Clarity of rules, Consistency, Realism, Constancy, and Congruence. Another theory was first proposed by the lawyer, Jeremy Bentham, and later refined by John Stuart Mill. This theory, utilitarianism, proposed that the moral action was the one that produced good for the many, even if it was at the expense of the one (i.e. ‘the greatest good for the greatest number). Mill’s refinement of the idea argues that whilst this idea is true, the individual should not have to follow society’s morals, and should be free to act as they wish, provided their acts do not harm others. Problems arise, however, in defining who these others are (do they include embryos for example) and what is defined as harm (does it have to be direct interference)' An extension of this idea can be seen in the ‘victimless crimes’ debated by Edwin Schur in Crimes Without Victims. He argues that criminal acts such as homosexuality (illegal when he was writing), abortion, and drug abuse do not harm innocents, only those who partake of their own free will. Since prohibition only pushes such activities underground, they should be decriminalised and left alone. A major criticism is, however, that not only can the nature of harm and others be questioned (as with utilitarianism) but it is difficult to argue that someone with a powerful drug addiction, for example, is acting of their own free will. The Hart/Devlin Debate The debate over the relationship of law and morality was brought to the fore in the famous Hart/Devlin debate, which followed the publication of the Wolfenden report in 1957. The committee behind the report contained Lord Devlin, a prominent judge, and the academic Professor Hart. The report recommended the legalisation of prostitution and homosexuality on the particularly utilitarian basis that the law ‘should not intervene in the private lives of citizens or seek to enforce any particular pattern of behaviour further than necessary’ to protect others. Hart, who was influenced by the theories of Mill, supported the report’s approach, stating that legal enforcement of a moral code was unnecessary (because a pluralist society won’t suddenly disintegrate), undesirable (as it would prevent development of morality), and in fact morally unacceptable (as it interferes with individual liberty). Devlin, on the other hand, was strongly opposed to the report, on what might be cited as a natural law approach. He felt that society had a certain moral standard, which the law had a duty to support, as society would disintegrate without a common morality (a point which, as we have seen, Hart disagreed with). Devlin felt that this morality should be based on the views of the ‘right-minded person’, and that the legislature should adhere to three basic principles: Individuals should be allowed as much freedom and privacy as is possible without compromising this morality; Parliament and the judiciary should be very cautious about altering laws concerning morality, and that punishment should be used to prevent actions abominable to ‘right-minded people’; the law should also only state the minimum of acceptable behaviour, society should have far higher standards. Hart objected to this view, questioning what the ‘right-minded’ view was. He argued that objections to another morality were more often due to prejudice, fear, ignorance, and misunderstanding rather than the rational approach necessary for law. He gave four reasons for not criminalising that which the ‘right-minded person’ objected to. Firstly, punishment of someone does harm to them, and if their actions have done no harm to anyone else, then this surely cannot be correct. Secondly, free will is very moral, so undue interference with it would be immoral. Thirdly, this free will can allow learning through experimentation, and fourthly, legislation suppressing an individual’s sexuality will harm them, as it can affect their emotional nature. Conclusion In conclusion then, we can see that there are various theories on how law and morality should relate to each other. Whether or not the law should uphold the moral values of society is still debated, and is made more difficult as, in a pluralist society, it is difficult to know what moral values should be supported, or should the issue be left alone to preserve individual liberty' The current approach by the legal system seems to be that a common morality, based on traditional, ‘right-minded’ values should be maintained by the law, as espoused by Devlin. This may be due to a backlash against the liberalising values of the Wolfenden report. Cases such as Shaw v Director of Public Prosecutions (1961) and Knuller v Director of Public Prosecutions (1972) made use of the offence of conspiracy to corrupt public morals (which had not previously been used since the nineteenth century) and signalled that the law would attempt to uphold society’s ‘moral values’ according to Devlin’s doctrine. This approach has continued, as the more recent case of R v Brown (1994) shows. The defendants had willingly consented to various sado-masochistic practices, and none of them had complained to the police. Nevertheless, they were prosecuted, and their convictions were upheld by both the House of Lords and the European Court of Human Rights, based on public policy to defend the morality of society. The law is therefore seen to attempt to uphold what it considers to be public morality, even if some may dispute the correctness of that moral code. Table of Contents Chapter1 Introduction Chapter 2   plight of law and moral in theory 2.1 Essence of law and moral 2.2 Common of the law and morality 2.3 The distinction between law and morality 2.4 dilemma of Legal and moral Chapter3   plight of law and moral in reality 3.1 Homosexuality 3.2 Qualification certificate of prostitute 3.3 Euthanasia 3.4 Having the concubine Chapter4 conclusion   1.Introdunce   Socrates in prison persuade students who persuade him to break the prison that although the Swedish legal is injustice he can not break the prison  because breaking is also unjustified .he insist in obey the law even the law is unmoral.[1]. However, During World War II, the Gestapo in 1945 in accordance with the elements of Nazi Germany during the emergency decree, shot and killed the fugitives without trial  after the Germany surrender, the deceased‘s wife take the Gestapo to the court with the elements of intentional murder, but the Gestapo refused to admit their own guilty , claiming that he perform the official duties, and then put out a legal document. However, the German Federal Court denied the decrees at Nazi period in Germany. The court said, those laws and run counter to the most basic human justice, it should not be a legal justification for any act, any person of conscience. can not implement this Decree. Should we obey the unmoral law' What is the essence of the legal and moral' What is the relationship between the moral and law' And whether the hot issues such as Euthanasia, homosexuality, Abortion should be regulation by law or by moral'    2.plight of law and moral in theory   2.1 Essence of law and moral Augustine advocated：“The law is justice” ，and  Aristotle said that the practical significance of the law should be able to contribute to the promotion of all the people in the justice system”.Grotius pointed out: "The law is a legitimate and rational order.” The idea of Augustine and Aristotle underline that justice is the essence of law. And the idea of Grotius underline that order is the essence of law. If the justice is the essence of the law , there must be the relationship between the moral and justice ,because the justice and kind is also the essence of moral. However, once law is incline to the order, whether the unmoral law is worth to be obey.   The relationship between the law and moral has always been an eternal problem in legal areas especially the legal philosophy. A famous jurist in Germany, Rudolph Jhering once said: "the relationship between law and moral is just like the Cape of Good Hope of the Law; as long as the sailors conquest the danger of it , they will no longer subjected to the risk of the drowned. "[2] Pound ,a American famous Social Jurist ,have Said: " in the past century ,there are three issues being highlighted in the literature :The legal nature ,the relationship between law and morality, as well as the solution Release of the legal history"[3].the relationship between law and morality is related to the regulating area of law and morality, which is more important to decide whether the unmoral phenomena such as having the concubine ,euthanasia  should be control by law. 2.2Common of the law and morality From the occurrence of the legal and moral, as the adjustment of social relations, both the legal and moral are the production of the regulation to the greed of people. All of the People have the survival instinct, the tendency for happiness, the desire to pursue self-interest and more or less of the animal character.[4] according to Maslow's hierarchy of needs, people's dissatisfaction with such a desire will never adequate and ever-expanding and upgrading. And a certain community resources (interest) is limited The individual pursuit of self-interest is bound to greatly affect the interests of others, so a variety of Disputes and conflicts  have produced, thereby they affected the social stability and order. Then prevention, mitigation and resolution of such conflicts become necessary, and moral and legal is developing gradually[5].   The value of morality is the basis of legislation .the morality is essential to law enforcement and law-abiding .Legal ethics should be subordinated to check the value of justice. Human moral constraints, is from the inside out; the law's constraints, is from outside to inside, which is a combination of organic and complementary   2.3The distinction between law and morality law and morality have different assumptions of human nature .the morality Originally derived from the religious and moral habits, and it  help educate the heart, the main Conscious. people have to rely on public opinion and social pressure to implement., assuming that people can be good or of human nature. for the assumption of human nature, the law  declared a series of control orders and  Prohibitions designed after a series of corresponding penalties for breaches of regulations if  the reality of the existence of morality is based on the Original Goodness of Human Nature or  the expectations of the good of human, the law is based on the assumption of human evil nature.   The function of Law and morals is different .The function of legal is mainly is to regulate people's external behavior and guild them the in right way by the instruction and the indication, but the morals adjust human's behavior from people's innermost feelings, and its adjustment is self-consciousness, manifests certain intrinsic quality and the civilized degree .the Manifestations between legal and moral are also dissimilar, the law is on the behalf of the dominant class and rule the people directly by the visible form , but the morals always adjust people by hide way and control person's external behavior from the outside to inside.   2.4dilemma of Legal and moral Hart, the most famous representative of Analytical Positivism Jurisprudence ,made a clear distinction between "practical law" and "proper law"  He insisted there is no inexorable connection between laws and morals[6].     In 1944, a German soldier went home when he carried on the orders on duty period .One day, he said in secret to his wife his disaffection to some of his leaders ,Hitler and nazi party. His wife had told what he said to local Nazi party chieftain when He left, because his wife had gone “to go to another man's bosom “during the period of his military service and wanted to remove her husband. Finally, his husband has encountered the military special court interrogation and condemned the death penalty. After the short period of captivity, the soldier had not been executed and delivered the front.  after the Nazi regime downfall, that wife was delivered the court because she tried to make her husband to encounter the captivity .She contradicted that According to the effective law at that time, her husband constituted the crime for speaking bad words about Hitler and the Nazi party .Therefore,  she accuses her husband. This case as well as the series of similar cases caused the trial fell the key problem is about the law and the moral. if people persisted strictly the positivism viewpoint speech of " law was the [...] What is the difference between law and morality or what happens when they conflict' I believe that this is a very important question for today because of the economic situation. People all around the world are losing their homes and have large debt collectors showing up in their yard. It is a bad time for nearly everyone and it is in these times that people neglect common behaviors such as grace and mercy in support for their basic Darwinian interest of survival of the fittest. It is a time where I need to get mine and you have to find a way to fend for yourself. The question becomes are we neglecting the common law of morality' We all have different names and phrases for it. We call it the golden rule and say “do unto others as you would do unto yourself” and “love your neighbor as yourself”. This is an easy thing to believe when times are good. You feel secure in your job and you have a sizeable savings account then of course you will try to help out a man who is struggling to make ends meat. But the problem becomes when you are struggling just as much as your neighbor… and you both have a family to feed. What do you do in these situations' This is a hard thing to answer. I believe many of you are like me. We would neglect our own basic physical needs if we saw a an entire family on the street looking for food and shelter. There wouldn’t be any doubt in my mind that I would help this family as much as I possibly could. It goes beyond any moral law or code. I believe it is human nature to neglect one’s own needs for the sake of an entire family. But what about when you have a family of your own' Do you neglect your own family’s need for anothers' Moral Banana I often joke around with a youth group that I help teach. I theoretically ask them if they were on a deserted island with someone else and all food is gone but one banana. You find the banana first and you can easily eat the banana without the other person realizing it. Do you eat it' Of course this is a silly and completely unrealistic moral philosophical scenario. They all see through it but it is funny how some teenagers are brutally honest.. They admit that they’d eat the banana. But what if the scenario wasn’t too far off base. I’m not going to ask you whether the moral thing to do is to give up a banana or eat it yourself, but then again I wouldn’t be surprised if some of you were willing to be brutally honest and admit to eating the banana. What I am going to ask if you would obey the law of the land or would you rather do the moral thing of following the golden rule. Story of Morality and Law Imagine that you are a proud working parent. You’ve gone to college and got a good job at a bank. You go to church and raise a good family. By everyone’s standards, you are leading a life that you should be proud of. Then tragedy strikes. Your spouse loses his or her job and now you are the sole supporter of your family. Bills are starting to mount as you try to manage the life you had while your family’s income got split in half. You had best find a way to keep your job.. but the problem is your bank as hit hard financial times. You know the economic situation is bad around the world, but you don’t really have time to think about it. You have a moral obligation to worry about the financial situation at your house. The banks have been hit the hardest and you fear everyday for your job. Your boss says that you need to start collecting on some people who are really behind on their house payment and if they can’t catch up that you need to foreclose.  You hate this part of the job so you sort through the list of people. You try to make a list of people who are least deserving to receive mercy and most deserving as though your moral obligations will allow you to choose who receives the grace. You get near the bottom of the list and the name reads “Jonathan Meyer”. This is your neighbor a few houses down and across the street. Your kids routinely go over there to play and you always smile and make small talk about the rain or the stock market. He was an electrical engineer several years back before his company shut down. He hasn’t been able to find a job recently. Now you have to call him and tell him his house is likely to be foreclosed on.. Where is the law or morality in that' You know that if you do not call that you will lose your own job. You realize that you have a moral obligation to your own family. You already have collectors breathing down your own neck about the cars. There is no way your family could sustain itself if you didn’t make the phone call. You also realize that you can get into legal trouble if you descriminated between different families. All people are created equal or something like that. If you do choose to make the call then you are within the right of the law to foreclose and every judge will be on your side, but which do you follow.. law of Country or law of morality' You reach for the phone and wrap your fingers around the cold receiver.. What do you do' I am not going to answer this question for you nor do I believe that I would definitely make the right decision. Right or wrong, I know what my instincts would tell me to do. I can’t say for sure that I would do it, but I’m pretty certain that I would follow my gut. I would make the call. Choice of Law of Society or Moral Right It is in these types of situations where the relationship between law and morality can become difficult. Whatever choice you make, you can justify it as a moral decision because it is. You are generally obligated to follow the law of your country. They are put into place to protect  those who would likely get hurt and are usually a good thing. But sometimes our laws can conflict with what we believe as moral. There are a few times in our lives where we must rebel against the rules of our country or even the company that we work for. In those times, we have to judge whether we have a bigger obligation to follow the laws set out before us or the larger laws that govern society and our beliefs. We will have to sacrifice a large piece of our lives if we choose to follow those larger laws which Jesus beautifully said, “Love your neighbors as yourself”. You might have to risk your career by rebelling against the unethical standards placed by your boss. You might have to risk your life by ignoring loved one’s pleas to save a young child in the road. or you might risk living everyday in the shame and disrespect of the entire society around you because you stood up for a friend when everyone else had thrown him away. Many scenarios, it is easy to judge which action is the Moral choice to make. It is the one which follows the law most of the time.  In these situations, your choice isn’t choosing between which one is right. It is choosing whether you want to make the moral choice or not.