Tuesday, January 27, 2009

Morality and Law

I have some questions from a member of the studio audience to address.

One concerns a topic related to several recent posts – the relationship between law and morality.

I am used to thinking about it like this: "every law/everything that is legal should me moral, but not everything that is moral should be legal obligation" or if you prefer "everything that is illegal is immoral, but not everything that is immoral should be illegal"

I believe that this is true with respect to the criminal law. A person ought not to be punished unless he has done something worthy of punishment. If a person has not done anything wrong, then it is a mistake to say that he should be punished.

In other words, legislating morality is not only a legitimate function of the law, it is the primary function of the law. The thesis that it is objectionable to legislate morality substantially boils down to the thesis that there should be no relationship between punishment and the question of whether or not the person being punished actually did something wrong.

The specific difference between criminal law and morality is this:

Morality is concerned with altering a person's desires – so that they will do or forebear from certain actions even when nobody is looking over their shoulder. When society uses social forces to give people a moral aversion to taking the property of others, then those people will leave the property of others alone even when they have an opportunity to take that property.

Law, on the other hand, is concerned with getting people to perform or to abstain from certain actions by threatening to thwart the desires that already exist. "If we catch you performing action A, then we will create a state of affairs that will thwart many of your other desires – a state that you certainly have reason to avoid. You can avoid the realization of such a state simply by not doing A."

The problem with legal penalties is that the motivation only applies when the agent believes that he is at sufficiently high risk of being caught. If the threat of being caught is sufficiently reduced, then to that degree performing action A will not lead to the bad results that the agent has reason to avoid.

On the other hand, the law is a heavy, blunt weapon. To put the rule of law to work in all instances of wrongdoing (e.g., making it a crime for a child to lie to her parents) would be impractical at best.

Another class of immoral actions that should not be made illegal are those pertaining to certain rights such as the right to freedom of speech. No good person would stand before an audience and promote racial segregation, for example. However, the right to freedom of speech means that a person may go ahead and make statements that no good person would make, and the only legitimate responses are words and private actions.

Yet, there is also a class of legislation – other than criminal legislation – that is not concerned with immorality. This has to do with regulation – and, in particular, with standardization.

It is economically and socially beneficial for the country as a whole to adopt certain common common ways of doing things. For example, it is useful if everybody in a country drive on the same side of the road, and for pipes and bolts to have a common number of threads per inch. It is useful for reports to count like incidents as alike so that aggregators can focus on comparing apples to apples.

So, the state can designate a particular street to be a one-way street without appealing to a natural moral law that dictates an obligation to drive only one way on a particular street. It can demand that bolts contain one of two values for the number of threads per inch without proving that all other possibilities represent moral crimes.

We can still make something of a moral case for regulations and standardizations in general. People have a reason to promote conformity in some instances – such as conformity in which side of the road to drive on and conformity in the construction of certain types of tools.

It does not matter what standard everybody adopts, as long as everybody adopts a common standard. So, people generally have many and good reasons to promote a desire to conform to certain common standards, and an aversion to violating those standards.

Sometimes this moral case springs a bit, and we demand conformity even where conformity does no good – even where we would benefit by diversity rather than conformity. We end up demanding conformity in clothing, hair styles, hobbies, viewing and listening habits, and food preferences where there is no reason to argue for conformity at all.

However, the fact that a tool might be misapplied is no argument for throwing away the tool. The possibility that somebody might use a hammer to drive a screw is no argument for ridding the world of hammers or screws.

This, then, is a brief rundown of the relationships that I see between law and morality. Nothing should be made criminal unless it is immoral. Yet, it is not the case that all things that are immoral should be made criminal.

The law is far too unwieldy a tool to be used in cases of minor wrongdoing. Standards and regulations may be imposed even though they do not reflect a specific moral fact. However, we still have many and strong reasons to promote conformity to some standards – reasons to promote a desire to conform and an aversion to violating some standards. Yet, this is not an argument for universal conformity on all things.


.C. said...

I enjoyed reading this and am fairly reluctant to pass judgement until I have read some of your other posts. but for the time being I felt your statements on the actual relationship between morality and the law were lacking substance e.g legal things should be moral while moral things neednt always be legal.

I think that when you assess the morality of the law you should be careful to separate the issues more: You suggest that morality is upheld by laws but seem to forget that morality, as dictated by society, is more often than not in conflict with the law. Law being developmental building blocks and morality being a fluid social concept.

Furthermore as an atheist you should understand that the law often protects church morality even though this is not the morality accepted by the state as a whole. (bearing in mind that a lot of the legal institution rose out of the church).

And lastly if you suggest that criminal law is based on moral principles (or vice versa) you must account for how morality fits in with the penal system as a whole. capital punishment, terror laws and the failure of rehabilitation all suggest that the law can overrule moral judgement with relative ease.

Still, in spite of all of this i am pleased to have found someone prepared to write about things outside the ambit of mainstream blogging and look forward to reading through your other posts :]

Alonzo Fyfe said...


You suggest that morality is upheld by laws but seem to forget that morality, as dictated by society, is more often than not in conflict with the law. Law being developmental building blocks and morality being a fluid social concept.

Well, I disagree that law is a "fluid social concept" - unless you are talking about mere language and not things in the world.

If you are talking about mere language, "planet", "atom", and "malaria" are fluid social concepts, but this does not imply anything of substance about the sciences of astronomy, chemistry, or medicine.

If you are talking about things in the world, I hold that there are non-fluid facts of the matter regarding morality, just as there are with respect to planets, atoms, and malaria.

Furthermore as an atheist you should understand that the law often protects church morality even though this is not the morality accepted by the state as a whole.

You seem to be confusing a descriptive theory of law (what the law ought to be) with a descriptive theory (what the law is).

It is fully consistent with the view that the law should be just - that nothing be punished that is not immoral in fact, and the view that the law sometimes is unjust - that it punishes people for things that are not immoral in fact.

I offer a theory of what the law should be, but I am fully aware of the fact that it often falls short of these ideals.

.C. said...

Re your 1st point: I think my choice of words was bad - that law and morality have a relationship is in no doubt. That they are dependent on each other may also be true. The fluidity of morality was in reference to the ever changing status of what is considered moral or not. In contrast I see the law as incremental - building on a constitution which has certain aspects of morality running throughout - and thus is not free to change in the same way general social morality may be. This was therefore merely a point of circumstance rather than an attempt to discredit your assertions!

Re your 2nd point: You have clarified the idea that you are putting forward a potential theory rather than a theory of what might actually be. I did not infer this approach when I first read your post but a lot of my initial cynicism was based on this misunderstanding and I perhaps should have been clearer that I was criticising the reality rather than the ideology of the law/morality issue: and in neither instance therefore were my intentions different from yours.

Following therefore I should restate that without having read your other posts I am not able to directly comment on the relevance of your theory as I am unaware of the context or definition which you generally see fit to put on the otherwise intangible and abstract concept of morality :]