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To What Extent if Any is Morality Linked to Law?

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Law is an assortment of legal rules that are used to regulate individuals behaviours whereas, morality is a set of values that separate good from bad behaviours. Morality does not play a huge part in aspects of law; however, moral principles may still be adopted regardless, hence to some extent morality may be linked to law. ‘The place and function of morals in the law has always been a focal concern of legal and political philosophers, and it is no exaggeration to say that it has become one of the most significant questions, indeed the fundamental question, that animates the debates of today’s jurisprudence’. There are two opposing approaches when faced with the association between morality and law. The first is referred to as ‘moral realism’ which relates closely to natural law and claims our moral values are linked to law. And then there is the opposing side which is used mostly by utilitarians and positivists who argue there is no existence between morality and jurisprudence.

Natural law according to a natural lawyer ‘is that it provides a name for the point of intersection between law and morals’. In Ancient Greek law, Plato and Aristotle played a significant part in examining values. Plato believed that absolute values exist that can be emulated and that only laws that truly serve justice can be considered right. Whereas, Aristotle believed that human nature is a source of justice and therefore stated ‘we are social animals and therefore in order to flourish we require family and social groups’. He considers justice to be divided into general justice and particular justice. Aristotle claims ‘our actions are generally just when we are wholly virtuous in all matters relating to others’. And particular justice relates to people treating others fairly. From these concepts political justice is formed, focusing on distributive and corrective justice. Additionally, Ancient Greek law influenced Roman jurists and jurisprudence, and Romans sought to promote harmony through reason. As history proceeded the medieval era began to adopt a Christian view towards natural law.

After medieval natural law saw a development towards Christian views Thomas Aquinas developed his own natural law theory of morality. He believed that God instilled us with the ability to recognise what is good and evil is a derivative of nature from human beings. Hence, he established four categories of law being (eternal, divine, natural, and human law). He, therefore, considered any laws that are unjust is not an acceptable law as good was to be achieved and evil evaded, which also allowed us to see the good in different situations.

The Renaissance which ended the medieval era and saw philosophers delivering a non-religious foundation for natural rights and law and an intellectual basis for positivists. Philosophers such as Thomas Hobbes and Immanuel Kant although had different views on natural law, still believed that morality shared a link in the law. Hobbes stated that humans are all equal and that life before the social contract was ‘poor, nasty, brutish and short’, he based his law off of nature and a group of principles. His principles were ‘people should pursue only their self-interest, the equality of people, the causes of quarrel, natural conditions of war, and the motivations for peace’. He states that only after these factors have been achieved only then are, we able to judge what is right and wrong. Kant while sharing similar views stated that morality can be determined without relying on reference from god.

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No amount of law can cover every moral consideration and therefore morality may not demonstrate a relevant relationship in the validity of the law. John Locke and Jean-Jacques Rousseau both share a concept that morality is not linked to law. Locke believed that humans, when external from society were able to enjoy freedom yet, were a key focus on natural law and therefore peace and property were not sufficiently protected. He thought that humans had to give up freedoms under social contract in order to resolve conflicts, and natural law cannot adequately enforce rules inside a society. Rosseau based his philosophy on sovereignty built on the foundations of the American and French revolution. He believed that a general will is different from an individual will hence he did not engross himself with natural law. However, his philosophy did highlight areas of natural rights such as freedom and equality.

Conversely, philosophers such as Jeremey Bentham and John Austin (also utilitarianisms), hold a completely different opinion on the relationship between morality and law. The rise in legal positivism confronted natural law formations and influenced multiple factors such as separation of churches from state, written constitutions, codification of law, and the idea of judicial activism and judicial restraint. Bentham proclaimed that law is merely a command of the sovereign and that rights are only able to survive through the creation of law. Bentham was always highly judgemental of Blackstone’s natural law concepts such as stare decisis creates a higher chance in the creation of equity, laws should be codified to make them clearer and judges are discriminatory, and their legal jargon is purposely unclear. John Austin, on the other hand, deemed law social facts that are experimental and therefore there was no clear link between morality and law. He also believed that laws were commands of the sovereign and laws are ‘properly so-called’. Positive law was separate from religion and included declarative laws, Austin was the first person to apply the scientific approach to legal theory. This theory included reasonable conclusions, which were a result of experimental remark.

Many theorists regard law and morality to be connected as a valid law would be founded on morality. HLA Hart developed an approach that separated legal rules into two separate categories; primary and secondary rules. He claims that for any legal system to be proved successful natural law is required, and despite morality having no direct correlation to law, moral principles may still appear. The primary rules are focused more on morals (e.g. do not drink and drive), and secondary rules were divided into three categories (rules of change, rules of adjudication, and rule of recognition). Modern positivism holds three key theses’ which include (the separability thesis, the pedigree thesis, and the discretion thesis). Other theorists such as Joseph Raz share a common idea that natural rights are vital for a legal system to be successful however morality is irrelevant to the law. Raz developed a completely different theory known as hard positivism which claimed ‘morality is firmly distinct from law, but laws may refer to moral values’. He believed legal systems could be separated by three key factors which were (efficacy, institutional character, and sources). Positive sources applied certain aspects of morality to law and proclamation of law does not incorporate any other factors such as morality. Despite this theory law and morality are often intertwined even if it is not intentional.

According to Hart and Ronald Dworkin, the law is assumed to be an ‘ethical minimum or the law as a minimum of morality’. Dworkin argued that law is not separate from morality however law does not operate separately from society. Laws must be understood according to political and moral standards, judges also do not make laws in hard cases they simply attempt to construe and apply it. In simple terms, there is always a correct legal answer as laws follow basic rights and fundamental principles of justice (fairness, access, and equality). Dworkin and Hart often showed a disagreement towards law and morality in terms of ‘intolerance, indignation, and disgust’. Furthermore, Lon Fuller also believed that the purpose of the law is to achieve a social order through regulating general rules, and unless these laws challenge a law’s key function there is a duty that must be followed. Fuller, similar to Dworkin and Hart considered the law to not have a substantive morality however thought an internal procedural morality existed. Some of these principles included; prospective, honesty applied, free of contradictions, and relatively constant.

In conclusion, there is no doubt that law and morality share the common goal of reducing social harm or evil however, morality does often not need to be considered when determining the validity of the law. To some extent, morality may be linked to law unintentionally as it follows the fundamental principles of natural law and justice. However modern positivism concerns itself with disapproval towards any link between morality and law and rather focuses on the process of law-making. Hence, proving the law does not need to focus on morality in the law-making process.

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