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The issue of morality and unjustness in a conscientious society

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Morality and Law Rick Garlikov There are a number of issues about the relationship between morality and law in a pluralistic, secular democracy like the United States. Among them are whether legislation should reflect moral principles, whether judges should interpret laws in light of moral values and principles, whether laws should enforce morality, whether laws are binding if they do not reflect moral principles, whether it is moral or not to disobey bad laws, and what gives law its authority.

Sometimes morality is confused with religion and I have written about that elsewhere. But for purposes of this essay, it will not matter whether someone's moral principles are based on religious doctrine or commands or not.

The important traits will be the soundness, and perceived soundness, of any moral principles, not their genesis. I am also not trying here to write a definitive work about all the issues involving the relationship between law and morality, nor to restate all the points others have already made about the issues I do address.

Instead I hope to simply shed some additional light on aspects of the relationship between law and morality in a pluralistic democratic country with a secular government.

  1. Similarly with regard to scientific theories about, say, the origin of something. Other critics come from the ranks of just war theorists.
  2. Everyone who has played touch football in a small park or set of yards with bushes or trees or foreign objects, or who has played basketball in a weird shaped driveway or a driveway flanked by trees or foreign objects, is familiar with "local rules" designed to keep the game from being corrupted by trick plays that use some local peculiarity to an unfair advantage, or which take into account in some fair way any bizarre play that may occur by accident -- for example, what the baseball rule should be for a batted ball hitting a ceiling obstruction in a covered stadium.
  3. In reverse, saying something like "marriage at age 14 was socially acceptable in Elizabethan England" implies either that the speaker thinks that was a wrongful practice or at least that it was only right, if at all, because of circumstances of much earlier mortality or because 14 year olds at that time were far more relatively mature than 14 year olds of today. The eighth Amendment has a host of moral concepts embedded in it.
  4. Recreational golf uses a "handicap" system to make competition more interesting between players of unequal ability. Law could be more closely aligned with morality and still be objective.
  5. The relationship between law and justice is vital and needs to be properly understood.

Aspects of Law Not Based on Morality First, as has been said by many people, some laws are managerial or administrative in that they institute behavior for procedural purposes that could equally well, from a moral or socially useful point of view, have been written in a different, or even opposite way.

The common example is traffic rules about the side of the road on which one is to drive. Apart from consistency with bordering neighbors especially for safety purposes of driving across borders and in neighboring countriesit does not matter from a moral standpoint which side a country or a set of neighboring countries adopts, as long as the choice is made among equally right e.

These laws are not based on morality, in terms of their specifics. They are moral because they are a way of promoting social benefits of a certain kind in an optimal way. Second, some laws are immoral, usually because they are unfair but sometimes because they are counterproductive or harmful; in some cases, egregious and reprehensible. Many laws about Jews in Nazi Germany and many laws concerning women and blacks in early U.

Many apartheid laws in South Africa were morally wrong. But there have also been government programs set up by law that simply mistakenly harmed the people they were intended to help, such as aspects of the welfare rules that ended up trapping people in poverty rather than assisting them to escape it.

Laws, or a legal system with a lack of adequate laws, can also have wrong or immoral consequences even if the contents of particular laws are not unjust. For example, laws concerning evidence and procedure in courtrooms often lead to acquittals of obviously guilty defendants, and sometimes to convictions or continuing sentences and punishment of known or likely innocent ones. There is no reason to believe that just because a law passes, it is for the best or that it is right or moral, even if the people passing it think it is.

If one were to be charitable about legislators, one might perhaps be able to argue that they pass those laws they believe to be right, whether those laws actually are right or not, but I think there is sufficient evidence legislators the issue of morality and unjustness in a conscientious society often pass laws for political reasons -- to win or keep political support from those whom the law favors or to whom it panders -- even though they know the laws are bad or wrong.

Either way, however, sometimes bad or immoral laws get passed which are perfectly legal. Third, not all morality is enshrined in law because law is in a sense "incomplete". Many unfair and wrong business practices are not anticipated and therefore not made illegal until someone invents and uses them in a way that clearly mistreats others. These practices are wrong and immoral from inception, but not illegal until law "catches up" to them.

In a sense morality is "complete" and applies to all acts, but the law typically is "incomplete" and only applies to behaviors legislation has already addressed, or that the courts can interpret to have been addressed by implication in existing law. Law has to be "invented" or manufactured; morality only has to be recognized. And in the creating of specific laws with specific wording, loopholes creep in because it is difficult to predetermine and specify those and only those acts intended to be covered.

Morality does not have loopholes. It is probably impossible to make a complete set of laws that anticipate, enumerate, fully describe, and forbid every possible specific wrong behavior.

It might be possible to have general legal principles that distinguish all behaviors that should be legal from those which should not, in the same, or similar, way that correct general moral principles might distinguish between all morally right and all morally wrong acts, but it is not likely that either moral principles or legal principles can lead to a complete and specific predetermined enumeration of each and every right act in every circumstance.

Fourth, not all morality should be enshrined in law, because enforcing some morality would be far worse than not enforcing it. For example, even if it might be wrong for someone to lie in bed an extra half hour rather than having a good breakfast or getting to work on time, or even if is wrong for a child or husband to leave dirty clothes on the bed or floor, or even if it is wrong to break a prom date at the last minute for no good reason, those transgressions are not grounds for sending in the police.

Liberty and autonomy are important values and they sometimes require letting someone make a mistake or do the wrong thing -- as long as the wrong that is done is not so bad or so costly that civil society has a legitimate interest to prevent it.

While we have you...

There are sometimes disagreements about where the line should be drawn, but there are clearly some actions where autonomy is more important than being forced to do what is right by law, and there are clearly some actions where prevention of harm overrides autonomy and liberty.

While society has a legitimate right to enforce morality in preventing great harm or costit need not, and should not, make everyone do the right thing all the time. In cases where autonomy overrides prevention of wrongdoing, the law should not require people to do what they ought to.

While it is wrong for people not to do what is right, it is worse or "more wrong" for the law to get involved in those situations where either autonomy and privacy are more important than enforcing right behaviors, or in those cases where police or other government agencies will make things even worse by trying to enforce right behaviors.

There are some cases where even if a moral breach is bad for society, the social costs of trying to enforce morality in such cases would be worse than even the bad breach.

Hence, martial law is not the sort of thing democratic societies generally tend to have, even if it would make streets safer; wire taps are not permitted for just any speculative purpose; confessions cannot be coerced; and guilt must be proved by the prosecution beyond reasonable doubt, even if guilty people sometimes go free, because we have made the decision that it is better to free the guilty in cases difficult to prove reasonably than to risk convicting the innocent.

Again, people disagree about whether the social costs of enforcement of some potential moral breaches are worth it or not, but a guiding principle seems to be that the law should not try to enforce moral principles where the enforcement efforts are seriously worse than the breach of principles would be, even when the original infraction itself is seriously bad.

Fifth, people disagree about moral issues. People also sometimes disagree about which laws should be created or kept, sometimes on moral grounds, sometimes on merely prudential or practical grounds where different consequences are predicted. When moral viewpoints conflict or are contradictory, law, unless it is to be contradictory itself, cannot reflect the morality of different people. Moreover in the United States, Constitutional rights will sometimes even prevent law from conforming to the wishes of a simple even substantial majority of people or their representatives.

How can laws conform to morality when people disagree about what is morally right or wrong, or when their collective wishes are "thwarted" by the Constitution and by whatever minority is sufficient to prevent amending the Constitution? This is sometimes stated as "morality is subjective.

Disagreement, even unresolvable disagreement, does not necessarily make an issue subjective. I will say more about this later. Sixth, a special case of the above is that it is often normal for people to believe that the status quo and traditional practices are what is morally right. It often is very difficult, especially for those who benefit from current practice, to notice or see there is something wrong with it, let alone agree with that assessment.

Hence, they tend to see efforts for reform as unnecessary, destructive of a well-functioning system and social order, or even morally wrong. It is one view of law that it tends to favor existing power structures and relationships, not necessarily or not only through some sort of Machiavellian attempt to maintain power through evil means, but because existing systems seem to work well enough and because they seem psychologically to be normal and reasonable, especially to those in power.

Nevertheless, in spite of all the above, there seems to be some relationship between law and morality, or at least it seems there ought to be because we talk about unfair or unjust laws, laws that are immoral, laws that ought not to be obeyed or enforced; and we typically do not mean just that they are unconstitutional, but that they are counterproductive to their intended purpose or that they are bad or harmful or morally unfair or unjust laws.

We also deliberate about what the law ought to be and about which laws ought to be written, which the issue of morality and unjustness in a conscientious society passed or amended, and we believe that it matters that we try to get it right, not that any law will do as well as any other or that it does not matter what the law is. We say "there ought to be a law" about some behaviors that we think are wrong to permit. Law does not seem to be just the occasional coincidental similarity or accidental overlap with moral principles or with descriptions of ethically right acts that would follow from moral principles.

Laws are not generally just randomly chosen out of a set of all possible behavioral proscriptions or prescriptions, though it sometimes seems that some particularly flawed or foolish laws may have originated that way. Normally laws are desired to be crafted carefully and with regard for our moral notion of justice and fairness, where those concepts apply, and with utilitarian regard to their fostering good, rather than harmful consequences.

For example, the Preamble to the U. Constitution, in giving the purpose of that document, and therefore of the government legislation, administration, and judicial system it establishes, says: Most of the major purposes of the Constitution are to help us be law-abiding so that we are a better country, not just an orderly or merely obedient or efficient country. Hence, it would be remiss, and wrong, to make laws or to try to interpret laws in court written under the umbrella of the U. Constitution, and deriving their legal authority ultimately from it without any regard to their moral meaning, moral significance, or moral consequences insofar as these impact justice, liberty, general welfare, the common defense, and domestic tranquility.

And it would seem that any constitution without a moral purpose, even if one different from the U. Constitution, would be merely an arbitrarily pointless or meaningless formal document establishing an equally pointless formal system. There could be such a system of law and those who pronounce judgments, but it would not be a system of "justice.

  1. They feel loyalty to their country, to the military institution of which they are members, and to their comrades in arms. It might be that many different places will have equal affordable costs and benefits, and it might come down to where the person or the family just simply prefers to go.
  2. The "veil of ignorance" in regard to what position you would be born into in society does not help you create the best laws if you do not truly understand the limitations and barriers different positions impose no matter what underlying qualities of character or latent talent one might possess.
  3. In such a situation people quickly sense that laws are not serving higher values justice, truth, the common good - but are simply manipulated measures at the service of particular interests.
  4. For example, when University of North Carolina's Dean Smith invented what was called the "four-corners" offense, and had recruited and developed a team that was suited to play it, the NCAA changed the rules the following season to include a "shot clock" so that teams could not just hold onto the ball once they got somewhat ahead. The end of conscription came as a relief to most peopleā€”to young men, their parents, and eventually the leaders of the military services, which had been plagued by internal dissent and a lack of professionalism, partly as a result of having so many unwilling members.
  5. Many laws about Jews in Nazi Germany and many laws concerning women and blacks in early U. Normally laws are desired to be crafted carefully and with regard for our moral notion of justice and fairness, where those concepts apply, and with utilitarian regard to their fostering good, rather than harmful consequences.

Moreover, many of the clauses of the Constitution have moral implications: Clause 18 in section 8 of Article 1 states that Congress is "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The fourth Amendment seems to have moral elements with regard to "unreasonable" and "probable cause" when it says: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The eighth Amendment has a host of moral concepts embedded in it: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The irony is that the reason stated for giving little judicial credence to the ninth amendment is that it is not specific enough, when its very point is that enumerating specific rights is too narrow a way to think of "rights" because rights do not come from being named by the government.

This goes back to the point I made near the beginning of this essay that morality is complete whereas law is almost always bound to be incomplete by the very nature of its specificity in trying to enumerate those acts which are right or wrong. The authors of the Bill of Rights were clearly concerned that government not abrogate moral rights that were not specifically listed in the Bill of Rights, and they were concerned that moral rights not specifically listed were known to be still outside the province of government interference or usurpation.

This essay is an attempt to cast some light on what the relationship is and ought to be between law and morality.

Given that some laws are immoral, that some laws reasonably are neutral with regard to morality, and that there are institutional limitations to enforcing some aspects of morality, the interesting question should be, not what the relationship is between law and morality, but what it ought to be. Some Preliminaries First, even procedural laws may have practical consequences that make seemingly equal options not actually be equal. If, for example, it turned out there was some reason or even just statistical confirmation that people drove significantly better and more safely on the left side of the road than on the right, public safety would dictate that the law especially when the issue is first decided ought to require driving on the left side of the road.

But this essay will not otherwise address procedural or managerial laws where alternative choices otherwise seem to be equally optional and to have no preferable moral significance between each other. It is primarily a factual issue, not a philosophical one, as to whether the consequences of seemingly equal options are actually equivalent from the point of view of utility, such as safety.

Second, even if morality "trumps" law, as I would claim it ought to, it might be important to obey some bad laws, under certain circumstances, until they can be changed because the fairness and consequences of doing so might outweigh the justice or consequences of moral disobedience in those cases.

If, for example, some system is established for distribution of resources that is arguably not the best system, but which works to some extent, chaos might result in trying to implement a better system on one's own or in some fragmented or rebellious way.

In such cases the morally right act, given the bad system that has grown into place, is different from the morally right act if there were no such system to begin with and a society were trying to begin one.

In the driving case, for example, even if you knew it would be far safer for everyone to drive on the other side of the road, and even if you worked diligently to change the side of the road your country required drivers to use, it would be madness, and morally wrong because it endangered people unjustifiablyfor you to simply begin to drive on the opposite side on your own.

The Moral Responsibility of Volunteer Soldiers

Nor would it likely be safe for the legislature to pass a law requiring an abrupt change on a certain date, if that does not allow time for changing road signs to the other side of the road or doing any of the many other things that would be required to make the switch feasible. Or even if it makes more sense to use the metric system than the English system of measurements, one cannot just switch to metrics overnight, because, flawed and difficult as the English system might be, it is the one most people in America and England know how to use.

And it is the one for which recipes and other kinds of directions are given, measuring devices calibrated, etc. Hence, the remedy for any bad law under which a somewhat complex system of operation has arisen, should not be worse or more unfair than the law itself. Bad laws and bad administrative practices, though, do not justify their continuation without remedy just because some remedies might be difficult.

Optimally fair and beneficial remedies to achieve optimally beneficial and fair laws should always be the goal. I say that morality trumps law in that I think doing the morally right act is always at least our prima facie obligation.

And I hold that obeying some bad laws in some circumstances is a worse breach of morality and duty than obeying them until they can be changed. And in those cases, the law ought not to be obeyed.