U.S. Jurisprudence: A Brief Study of Morality and Law
To dissect the distinctions of morality and law, we must separate them as isolated yet crucially important to one another. Law is not morality but it reflects the morals of those who put forth the laws and implement the laws. If laws reflect morality, laws themselves cannot be good or bad intrinsically. Thus it is in fact the law-makers who may be doing the evil or good. St. Thomas Aquinas (1225-1274), widely regarded as a high scholar in philosophical and theological studies, invests that laws may only be considered just or unjust, not moral or immoral as if the law itself had some existing, inherent behavior. John Austin (1790-1859), who has been considered by many to be the creator of analytical jurisprudence will append Aquinas’ distinction saying that for the simple fact that a law exists, doesn’t mean it is right, fair or even just. Austin believes that if a person attains sovereignty over a group of people, whether or not it is deserved of that ruler, he has the command to rule over the people. He can choose to abuse the power or rule in the group’s best interests. If he chooses to rule in a tyrannical sense, the laws put forth by the ruler, albeit not embraced by his people, those are the rules and punishment will be applied if the rules are not abided. Here lies the fundamentals of how laws do not have to be “just” to be laws.
One cannot technically define moral legislation since legislation cannot be moral. There can be no explicit justification for morality. The intent of governors who create legislation comes from their morals and personal experiences. The statute as a result stands as legislation to be obeyed until it is either considered unconstitutional or until the general consensus decides to remove it. Naturalists contest the argument that morality and law are to be defined separately. But naturalists further the argument by saying that the laws are uprooted from a “natural moral order” that exists universally. Legal positivists such as Austin, dispute this by stating that morality is uniquely separate from legislation. H.L.A. Hart (1907-1992) believes that one can still adhere to the separability thesis and reject the idea of formalism, the belief that laws can be written in an exact sense so as to avoid no discretion or interpretation of the law. Hart asserts that this can be left up to the judge to decide the logistics of the law and thus appellate courts are conceived for this explicit purpose.
Then comes the question of whether an act by a law-maker is considered good. One could take the question in a broader sense and ask if all moral acts are considered good or if all good acts are considered moral. What about the double effect? If someone intentionally acts in a criminal or evil manner but conversely somehow the result turns out to be positive or good, is there a penalty to be paid or is it cause for reward? Or do both need to be instituted? If so, how does one determine the excessiveness of the penalty and how revered will the reward be?
Distributive justice can help answer some of these questions. Distributive justice relies on jurisprudence; who gets what, where, and how? It is the jurisprudential behavior that answers this question. This is the stance taken by legal positivists. In what ways is an individual deserved of benefits or compensation or not deserved? From a national scope, an example could be whether to nationalize health care. If health care was to be nationalized, how does one distribute certain benefits? If the health care is centralized, who pays the most and who benefits the greatest amount?
Classical Liberal and Utilitarian, John Stuart Mill (1806-1873), introduces in his essay, On Liberty, what he calls “the harm principle”. This is simply a notion that is justified on libertarian theory that as long as an action does not “harm” anyone else, it is ok to go through with the action. Mill holds a couple of exceptions to this theory, but in my opinion not enough. Mill explains that children and, what he notes as “backward” people, are excluded from this principle. He defines children not as a matter of state dictation but rather as one who is still under the general protection of their parents or guardians. They “must be protected against their own actions as well as against external injury.” He explains that this is also true for the backward portion of society, which is why they are exempt from this principle. Mill would focus more on the consequences of morality although he is not firmly confident with peoples’ inert virtues and morals. He does lay claims, though, that a better society will divulge from people being more truthful and more forthright with one another. He stresses freedom of association, freedom of lifestyle choices and freedom of thinking. He welcomes a plethora of ideas in order to make a better society in general. Freedom of speech will allow people spouting falsehoods to be corrected and also to dispel any biases a person may have been taught or experienced.
British judge Patrick Devlin disagrees with Mill’s theory. Devlin performs the basic “ordinary person” test. If an average, level-headed lay person would ordinarily find something repulsive, then it can’t be tolerated by society as a whole. Prejudices or biases must not come into play. Rather, a conclusion of whether an action or an occurrence is unlawful must be concluded by a rational and calm person who has collected all the facts. There are things that the general public can agree that they would consider obscene. He would say that Stern’s actions were outlandishly unacceptable and should be punished in some manner.
H.L.A. Hart says that it is not so easy for a society to collectively agree on right and wrong. He states that their public morality would then constantly be destroyed and rebuilt up again. Any change in this fact would allow for a new society. So therefore one society cannot judge public mores since society, as one unit, cannot concur altogether.
Ultimately, one must decide as to how the law pertains to a given society and therefore justify its morality accordingly. It can only be determined within the confines of our own platform of standards. Unjust laws may come and go but moral and immoral lawmakers will stay present as long as there is a society. The debate lives on…
