Morality Versus Law Essay ⋆ Criminal Justice Essay Examples ⋆ EssayEmpire

Laws are enacted by a legislature. Moreover, in a democracy, by virtue of being laws passed by the duly elected representatives of the people, laws reflect the will of the citizenry, or at least this is so by the lights of the standard theory of representative democracy. On that account, although the law directly reflects the will of the legislators, it indirectly reflects the will of the citizenry who elected the legislators to govern in accordance with their will and, for that matter, their interest, that is, the interests of the citizenry.

In practice, of course, since in most elections there are many citizens who vote for candidates and parties that do not garner enough votes to be elected, there is a question as to whether or not laws even indirectly reflect the will of all the members of the citizenry. This point is strengthened when one considers that many laws are in large part reflective of powerful sectional interest groups who successfully lobby, or are otherwise able to influence, democratically elected governments. For example, perhaps laws in the area of white-collar crime have historically been less stringent than they ought to have been.

Regardless of whether and in what sense laws are reflective of the will of the citizenry, laws do undergo change as a result of moral progress (and, for that matter, moral regress) among the citizenry and/or the legislators. For example, pollution and health and safety infringements were formerly breaches of civil or administrative, rather than criminal, law.

This raises the question of whether laws are morally good or bad, irrespective of whether they are reflective of the will of the citizenry. It also raises the question of the interpretation of laws and whether or not judges, for example, should strictly adhere to the original intention of legislators or seek to relativize legislation to current circumstances; if the latter, then there is a lacuna to be filled in part, presumably, by a judge’s discretionary moral judgment.

It is often held that criminal laws in particular, and unlike many other laws, reflect the will of the legislators and those who elect them but also social morality; that is, it is claimed that criminal laws embody central socially accepted moral norms of the community, for example, norms proscribing murder, rape, theft, and so on.

Evidently, the criminal law and social morality are closely related. However, there is a distinction between objective and subjective social morality. Subjective social morality is simply whatever putative moral principles and values the members of some social group happen to believe in and comply with, such as the social morality of contemporary Western society or that of cannibalistic tribes in Papua New Guinea. Objective morality is the structure of moral principles and values that the members of a given society ought to believe in and comply with because it is objectively correct.

The notion of objectivity pertains to the truth/ falsity or correctness/incorrectness of judgments, beliefs, claims, statements, principles, theories, and the like, and stands in contrast with the notion of subjectivity (or relativism). Roughly speaking, subjectivism or relativism holds that there is no truth or correctness to be had in relation to some class of judgments or claims. Such classes of statements might include moral statements, empirical statements, mathematical statements, and so on. Some social scientists, for example, reject the objectivity of moral statements but accept the objectivity of empirical statements made by scientists.

The subjective social morality/objective morality distinction is related to, but is not the same as, the so-called positive morality/critical morality distinction. Subjective social morality is roughly the same as positive morality; but critical morality is the structure of moral principles and the like that a society uses to critique its prior beliefs and behavior. However, critical morality is not necessarily objective in character; moreover, some elements of positive morality will be elements of objective morality (namely, those that are objectively correct).

Laws against murder, rape, theft, and fraud support the view that the criminal law, in particular, does indeed reflect to a considerable extent at least subjective (and, presumably to some extent, objective) social morality rather than the reverse. Certain acts are made unlawful—specifically, count as breaches of criminal codes—because they are regarded by the community as being serious forms of immorality; that is, the criminal law reflects social morality. Thus murder, rape, and so on are unlawful at least in part because they are regarded as profoundly immoral. Again, bribery is unlawful in most modern democracies because it is now widely regarded as a serious moral infraction, albeit this has not always been the case and is not even now everywhere so. Moreover, such is the moral weight of these laws, reflecting as they do the moral seriousness of violations of the underlying moral principles, that their enforcement (e.g., by police officers) is morally justified.

The Distinction Between Morals and Laws

Many people conflate the law and morality, especially criminal law and morality; they think that every act of compliance with a criminal law is morally right, and every act that is morally right is an act of compliance with the criminal law. So if A assaults B without justification, then A’s act is both unlawful and immoral. And if C bribes D to win a large government contract, then this act of bribery is both unlawful and immoral. Moreover, it is held that what makes such acts immoral is the fact that they are unlawful, rather than the other way around. Perhaps this view is particularly prevalent among people whose task it is to make or uphold the law, such as lawyers and police officers. It is, however, a view which should be resisted: first, because law and morality are not the same thing and, second, because law to some extent reflects morality rather than the reverse.

Law and morality are not the same thing. Laws have properties that moral principles and values do not necessarily have. Thus, for something to be a law, whether it be a criminal law or some other kind of law, it must have certain institutional properties not necessarily possessed by moral principles and values. For example, laws are enacted by some institutional authority (e.g., a parliament), in accordance with some valid institutional process (e.g., the legislative processes of the Australian parliament), and laws typically have an explicit formulation in a specified location (e.g., a law that is an explicit directive in the English language in the statute books of the Australian parliament).

Because law and morality, specifically objective morality, are conceptually distinct notions one finds that not all laws are morally right. This is probably most clear in the case of repressive states such as Nazi Germany or South Africa in the Apartheid era. In these states laws were enacted that discriminated against people on racial grounds. For example, blacks could not vote or own property. These regimes passed many laws that were valid qua laws, that is, they were passed by the legislature according to the proper procedures, yet were morally abhorrent. One also finds that not all morally good actions are legally enforced and, indeed, not all morally good actions should be legally enforced. Parents should be kind to their children, but there is no law to this effect—nor should there be.

So law and objective morality are not the same thing; nor, for that matter, are law and subjective social morality the same thing. From this it follows that sometimes the requirements of law and morality can pull in opposite directions. This potential conflict between the criminal law, on the one hand, and social morality and/or objective morality, on the other, raises issues of profound importance. Consider the laws prohibiting voluntary euthanasia or ones instigating mandatory sentencing of juveniles for minor crimes. There is a widespread view in many communities that doctors should be allowed to engage in voluntary euthanasia in some cases, for example, terminally ill patients suffering great pain; there is evidence, in fact, that some doctors do just this in violation of the law. Public opinion is divided on whether judges, lawyers, and police should exercise discretion in relation to crimes that they know are subject to mandatory sentencing; police officers on occasion turn a blind eye to an offense, if they know that the outcome of making an arrest will be worse for all concerned, including the community.

Notwithstanding the fact that law and morality are not necessarily the same thing, it is nevertheless true—at least in the case of the criminal law—that law and morality often coincide. There are laws against murder, rape, and fraud because these actions are widely believed to be morally wrong. Indeed, presumably these actions are morally wrong as a matter of objective truth. Certainly, the criminal justice system is predicated on this latter assumption.

This coincidence between much of the criminal law and central moral principles suggests that an important purpose of the criminal law is to maintain a community’s minimum moral standards. Naturally, some of these are contentious, and as society undergoes change some of these hitherto socially accepted, moral norms change—for example, moral attitudes in relation to homosexuality have changed. However, there is evidently a core of widely accepted, moral norms which there is reason to believe will never change or ought not to change, for example, the right to life and physical security, and freedom of thought and speech; presumably, these are in part constitutive of objective morality. The task then is to decide which moral norms ought to be criminalized and to do so on an objective basis.

One historically important attempt within the liberal tradition to delimit on an objective basis the sphere of moral norms that ought to be enshrined in the criminal law does so by recourse to the principle not to harm others. It is assumed with some plausibility that the notion of harm can be objectively specified—physical harm, for example, certainly can be, as can some forms of psychological harm. Thus, a form of behavior ought to be criminalized only if it consists in harming others and, specifically, seriously harming others and doing so deliberately (or at least recklessly or negligently). Naturally, others might consent to being harmed (e.g., professional boxers), or the harming in question might be morally justified (e.g., harming in self-defense). If so, then the harming in question presumably ought not to be criminalized. So let society restrict the “Do not harm others” principle to acts of moral wrongdoing that consist of seriously harming (nonconsenting) others, albeit one cannot here embark on the project of specifying what counts as serious harm.

This view has been subjected to various criticisms, including the need to criminalize behavior that consists of failing to assist others who are suffering severe deprivations (as opposed to harming them), for example, refraining from paying taxes, the purpose of which is to provide medical and other welfare benefits to the needy. In short, the criminal law should attend not simply to serious harm-causing but also to omissions in respect of serious deprivations.

The Moral Obligation to Obey the Law

In the case in which a law violates (or even infringes) some central moral principle or right (e.g., an inhumane law enacted in a repressive state), then perhaps there is no moral obligation to obey the law. In these cases the correlation between law and morality is not consistent.

There are other laws that evidently neither coincide with nor infringe important moral norms or objective moral principles (e.g., laws regarding incorporation or zoning ordinances). Lawmakers and others would maintain that there is a moral obligation to obey these laws, notwithstanding that they do not coincide with moral norms or objective moral principles.

Historically, social contract theorists, notably John Locke and Jean-Jacques Rousseau, have in one way or another argued that if laws reflect the will of the citizenry, then the citizens are morally obliged to obey them, since they have in effect consented to these laws.

It is evident, however, that most citizens have not explicitly consented to all these laws; at best, their consent is indirect through their elected representatives. The absence of explicit consent led some of these theorists, notably Locke, to fall back on some notion of implicit or tacit consent.

L. A. Hart and John Rawls developed the so-called argument from fair play. Roughly the idea is that (many) laws should be construed as mutually beneficial cooperative schemes. If so, it is unfair to disobey the law when one has accepted its benefits; as a beneficiary one is under a moral obligation to obey the law, even if it is not in one’s interest to do so. However, the argument from fair play has come under attack, including from Robert Nozick and John Simmons, and these attacks have in turn provoked a reworking of the argument by David Luban.

Luban argues that the justification for a moral obligation of citizens to obey at least some laws— laws that are not evil, unfair, or hopelessly stupid—lies in the fact that each of these laws constitutes an important, or at least reasonable, cooperative scheme for the members of the citizenry, and that to break such a law is unfair to those who obey it. It should be noted that even if Luban’s argument demonstrates that there is an obligation to one’s law-abiding fellow citizens to obey these laws, he has not shown that these law-abiding citizens have a right to enforce compliance with these obligations.

Luban mentions four conditions in his discussion of the moral obligation to obey a law: (1) the law is generally beneficial—the so-called generality requirement to the effect that the law benefits citizens and does so in a fair and nondiscriminatory way; (2) most citizens comply with the law; (3) citizens accept the benefits of the law; and (4) the law is an important, or at least reasonable, cooperative scheme. Luban claims that conditions (1), (2), and (4) are jointly sufficient to establish an obligation to obey a law. Luban also argues against Simmons’s claim that condition (3) is necessary. That is, Luban rejects the claim that there is an obligation to obey a law only if the person thus obligated had an opportunity to decline the benefit arising from that law, and chose to accept the benefit. Simmons thinks (3) is necessary because being an active participant—as opposed to merely conforming to the law—is necessary, and (3) is a necessary condition for being an active participant.

Luban argues that there are cases in which it is unfair to free-ride even though there is no opportunity of declining benefits. In such cases, one is under an obligation not to free-ride. Luban’s argument, if valid, would show that being in a position to decline benefits is not a necessary condition for having the appropriate obligation. Luban puts forward a number of cases in order to try to demonstrate this point. One such case is that of failing to help clean up glass on one’s street, and then making full use of the fact that the street has been cleaned up by others. (The street will be cleaned up by others whatever one does.) This case is different, he suggests, from failing to assist others to plant and to tend flowers on the median strip of the street. (The case is similar to the street cleaning example in that the others will plant the flowers whatever one does, and one is not in a position to decline this benefit.)

Luban suggests that the difference is that in the first example it is essential that the street be cleaned. That is, Luban at this point introduces condition (4). More precisely, Luban suggests that the more important or reasonable a co-operative scheme is, the less it matters if the benefit received is actively accepted. Acceptance does not matter in the glass example, but does in the gardening example. In the glass example, but not the gardening example, free-riding is unfair and disrespectful to one’s fellows.

Condition (4) rules out trivial benefits. However, there is evidently nothing in the other three conditions to rule out the possibility of an agent who does not want to contribute to a cooperative scheme because he wishes to pursue some other individually attainable benefit that is of greater importance to him.

Suppose, for example, that the roads in a neighborhood become snowed over. The members of the community regularly go out and clear the snow off the roads. There is a somewhat reclusive composer who is actually prepared to forgo driving during the relatively short winter rather than see to it that the roads are passable. The composer’s life would be made fairly difficult by impassable roads. For example, he would not get any fan mail, and would have to stockpile food. However, he would rather endure this than have to regularly perform the somewhat arduous and time-consuming task of shoveling snow.

Sometimes an agent or agents have an obligation to conform to a scheme that burdens that agent or agents, but which significantly benefits another agent or that. But such an obligation has little to do with the fairness of a cooperative scheme. Rather it concerns the importance or moral value of the collective end realized by the cooperative scheme. Such obligations arise, especially, in cases of need—as opposed to desire for a benefit—and the greater the need, the greater the disadvantage one ought to be prepared to suffer in order to help fulfill that need. The need in question may belong to a majority or a minority of the participants in the scheme. In the latter case the collective end of the scheme does not consist in a collective good or benefit.

Suppose that in the snow-clearing example it was known to the composer that some other members of the community needed access to a hospital in the city. There would now be an obligation on the members of the community, including the composer, to ensure that the roads were kept clear. But this has little to do with the fairness of contributing to a scheme from which one benefits. The composer is obliged to help the infirm, irrespective of the fact that to do so does not benefit him.

In the case of some cooperative schemes, there is no moral obligation to become a participant. However in some of these, if one is a participant, fairness demands that one contribute. In other cases it is morally incumbent on agents to secure some collective end, irrespective of whether the cooperative scheme that secures this end is a fair one. In still other cases considerations of both fairness and the moral value of the collective end of a cooperative scheme generate obligations to contribute.

If the moral obligation to obey laws is to be properly understood whole structures of laws— whole structures of cooperative schemes—need to be considered. For if this is done it becomes clear that in many instances the apparently bona fide nonparticipant is actually a participant in the overall structure of co-operative schemes, but is nevertheless unfairly trying to opt out of certain individual constituent schemes. He is in reality a free-rider. He wants to opt out of those individual constituent schemes that benefit others but not him, while he expects others to participate in individual constituent schemes that benefit him but not them. In such cases the free-rider is involved in an inconsistency, and hence unfairness, across individual cooperative schemes.

Many laws only benefit some individuals. However, the issue is whether the whole system of laws on balance benefits everyone and to a reasonable extent. If so, then failing to contribute in the case of a particular law may well be inconsistent and unfair to law-abiding citizens. Breaking the law is simply a special case of unfair free-riding in a cooperative arrangement. As such, breaking the law will constitute a failure to discharge a moral obligation.

It may be that the collective end realized by the whole structure of laws, say the collective end of good order, may be so important that everyone is under an obligation to obey the law, even though the structure of laws is unfair—that is, unless the collective end of the system of laws is outweighed by the unfairness of that system.

Law Versus Morality

In some cases, the law and morality are inconsistent, or at least stand in some tension to one another. Good laws ought not to be overturned, even in instances where the law evidently proscribes actions that are morally permissible to some people or prescribes actions that are morally impermissible to others. Law and morality come apart and necessarily so.

The explanation for this phenomenon is that the law in particular, but social institutions more generally, are blunt instruments. They are designed to deal with recurring situations confronted by numerous institutional actors over relatively long periods of time. Laws abstract away from differences between situations across space and time, and differences between institutional actors across space and time. The law, therefore, consists of a set of generalizations to which the particular situation must be made to fit. Hence, if a driver exceeds the speed limit he or she is liable for a fine, even though the infraction was only 10 miles per hour above the speed limit, the driver had a superior car and was a superior driver, there was no other traffic on the road, the road conditions were perfect, and therefore, the chances of having an accident were actually less than would be the case for most other people most of the time driving at or under the speed limit.

By contrast with the law, morality is a sharp instrument. Morality can be and typically ought to be made to apply to a given situation in all its particularity. Accordingly, what might be the morally best action for an agent to perform in some one-off situation might not be an action that should be made lawful.

Torture is a further example and one that has received a great deal of attention in the philosophical literature. Many of the theorists who oppose the legalization and institutionalization of torture also (at least implicitly) reject the possibility, let alone actuality, of one-off emergencies in which torture is morally justified (e.g., in so-called terrorist ticking time bomb scenarios). However, the argument has been accepted by many that there may be such one-off extreme emergencies in which torture is morally justified. Even so, it does not follow that because torture may in some extreme emergencies be morally justified that it ought to be legalized or otherwise institutionalized. What morality requires or permits in a given situation need not be identical with what the law requires or permits.

It is not the case that legal punishment necessarily ought to precisely track individual moral desert. In general neither institutional benefits nor institutional burdens precisely track morally right/morally wrong actions or individual desert. Rather, institutional benefits and burdens typically track institutional role performance in the service of institutional ends. Thus, the head of state might live in a luxurious abode and wear fine clothing; on the other hand, the head of state might have to attend a steady stream of tedious meetings and be careful what he or she says; but it is not the case that he or she as an individual necessarily deserves any of these benefits or burdens. Rather, the nature of the role is such that it requires this structure of benefits and burdens being attached to it. A soldier does not morally deserve to die fighting for his country. It does not follow, however, that he is not obligated to go to war on the grounds that he may not get his individual deserts. The soldier is legally obligated and, therefore, morally obligated to serve. The particular circumstances of the soldier (e.g., he morally ought to stay home and look after his sick wife) may put him in a moral quandary, but this will not necessarily relieve him of his legal responsibility to go to war.

Fritz Allhoff embraces the legal principle of necessity in order to establish his claim that morally permissible torture ought to be, at least in effect, legally permissible. His view is that morally permissible torture can and should be rendered legally permissible by means of the legal principle of necessity, which provides for an ex post facto justification for infringements of some laws. The legal principle of necessity, however, is inherently (and intentionally) vague. It typically applies to situations in which someone has infringed a law, but did so only to avert a greater evil that is otherwise unavoidable. The notion of averting a greater evil is, to say the least, underspecified and highly problematic. For example, is killing one innocent person to save two others justified by the lights of this principle?

Moreover, given its inherent lack of specificity, the notion of greater and lesser evils in the context of an application of the legal principle of necessity is inevitably provided with substantial additional interpretative content by the courts. The discretionary judgment of judges comes into play in the application of a principle that is in itself substantially underdetermined, both legally and morally. Moreover, judges are institutional actors serving the ends of the institution of the law—ends that on occasion are in conflict with the dictates of morality. Accordingly, the decisions of judges in their application of the legal principle of necessity are unlikely to precisely track the dictates of morality.

The attempt to utilize the legal principle of necessity as a means to ensure that some cases of torture by state security agencies are legally justified is fraught with danger. The danger in question is that the balance of power between citizens and the state will be tipped in favor of the latter with a consequent and unacceptable increase in the threat to individual human rights emanating from state security agencies. Consider a judge adjudicating a case in which a citizen has been tortured by members of a security agency acting under the authority of the president of the United States for the purpose of saving lives. Since ex hypothesei the security personnel in question have the legal defense of necessity available to them, neither they nor their authorizing agent have necessarily violated any law. It all depends on whether their infringement of the law against torture is deemed by the courts to have been justified. Yet, what counts as a legal justification (avoiding the greater evil) in such contexts is inherently vague and, as a consequence, there is considerable discretionary room available to the presiding judge. Further, the judge is legally obligated to serve the law and all it stands for, including the maintenance of the state composed of the executive, the legislature, the courts, the security agencies, and so on, and, of course, the rights of citizens insofar as they are protected by the law. But the legal protection of the rights of citizens—in this case, the right not to be tortured—is significantly reduced if there is a legal justification for torture available to security agencies. Moreover, what the judge is not legally authorized to do, let alone legally obligated to do, is to determine whether or not the torture in question was morally permissible. Rather, the judge is required to comply with the underspecified and inherently problematic principle of avoiding the greater evil.

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