Law and morality: relationship and philosophical foundations

Law and Morality

Courts should refrain from imposing social values in their interpretation of the law, since doing so can have dangerous consequences.

The imposition of social values through the criminal system is a tempting, but unjustifiable, activity that should be guarded against at every level in the legal system. Generally social values are derived from belief systems, worldviews, or religious preferences. Although notions of right and wrong and moral preferences may be entirely reasonable at the level of the individual, or even a group, however a justice system based on equal treatment under the law has no room for justifying legal proceedings that are based on social values alone since social values are highly subjective to begin with. This analysis will outline some of the dangerous consequences that can occur when subjective interpretations are allowed into legal sphere. Although it can be argued that all judgments have some subjective component to them, those that are based upon moral or religious opinions have a much larger subjective component than those that are based on sole consideration of the public good and how best to maintain a functioning society with individual rights and freedoms.

Morality in Criminal Law

The temptation to use the legal system to impose social constructs that are deemed moral has been persistent ever since the first legal system was created. When power is concentrated then those in authority may wish to engage in social engineering to try to carve out the type of society that they personal deem as an ideal society. Unfortunately, when this is the case then the ideals of the lawmakers can be entirely based on unfair discrimination against various individuals or groups that practice beliefs or engage in activities that may seem morally offensive to those in a position of authority. However, at the same time these beliefs or activities may not cause any physical or other damage to the general public good. Thus the question become that of balancing individual rights with a set of rules that should ideal represent the minimal threshold of what is necessary to maintaining a functioning society.

Patrick Devlin (1965) proposes these questions as lines of investigations that should be answered in order to establish the balancing point between morals and the legal system (Devlin, 1965):

1. Has society the right to pass judgment at all on matters of morals? Ought there, in other words, to be a public morality, or are morals always a matter for private judgment?

2. If society has the right to pass judgment, has it also the right to use the weapon of the law to enforce it?

3. If so, ought it to use that weapon in all cases or only in some; and if only in some, on what principles should it distinguish?

The first question posed by Devlin is the most significant of the three. It is important to have a conceptualization of what is meant by the term "morals." Morals, as opposed to ethics, are ground in the beliefs of a certain group of peoples or a certain culture. While some morals may also represent ethical principles, not all morals are necessarily ethical.

The example of homosexuality is commonly provided to illustrate how some activities may be perfectly ethical yet entirely immoral as perceived through the lens of a specific belief system or culture that only applies to a certain group or worldview. For example, it is difficult to make a claim that homosexuality is unethical in any way if it is performed by two consenting adults. Homosexuality is commonly found in nature in many different species and there is ample evidence that it is a naturally occurring phenomenon. However, many people feel that homosexuality is immoral due to their religious practices or personal preferences about sexuality.

Homosexuality is a great example primarily because for many years the public opinion of the majority was against the practice of homosexuality. It hasn't been until fairly recently that public opinions have changed on the subject and have shifted to a majority with a more tolerant vantage point. This shift did not come about on its own. The homosexual community organized one of the most effective political and social efforts to create a sense of tolerance in society for their group that has ever been organized in American history. Yet before these efforts began to take hold, the practice of homosexuality was illegal in many areas and the marriage of homosexuals was illegal throughout the country.

Therefore, in a democracy, since public opinion is a primary driver of public policy, it is entirely feasible to draft laws that are based on the majority's take on what is moral. However, even if the majority finds something to be offensive or immoral, this does not necessarily serve as an adequate basis for legislation. Take for example the German culture during the reign of Hitler and the Holocaust. Public opinion was against the Jewish people and this set the stage for some of the most immoral acts that occurred in modern history. Although homosexual people are not being put to death like the Jewish people were in Germany in concentration camps, however they are denied many of the rights and the freedoms that are granted to heterosexual couples. Although many states have begun to allow for homosexual couples to marry, to deny them this right for any period of time could be considered unethical.

Furthermore, many of the moral arguments that are made presuppose not only moral principles that are generally ground in a religious dogma, but also abstract positions about moral reasoning that is often more of an effort to rationalize a certain belief rather than to make a coherent and logical case about why the moral argument is valid in the first place (Dworkin, 1977). Legislation that is grounded in concepts of morality is often inconsistent for this very reason. For example, while for many years it was thought immoral to be a homosexual male and there were laws enacted against males practicing homosexual acts, the same practices that occurred between homosexual females were largely ignored. Thus laws generated through the lens of moral beliefs, even if they represent popular opinion, are subject to inconsistencies and can represent a seemingly arbitrary set of rules with no logical basis for a foundation.

Despite the fact that a democracy must content with the tyranny of the majority in many cases, this can often be a difficult position for legislators. Although every citizen in a liberal democracy is award a set of basic rights, there are many cases in which these rights can be violated without receiving recognition from the public consciousness. It took many years and a significant effort from the homosexual community to make tolerance towards their group more of a mainstream occurrence.