Law and Morality

(A response to a discussion on law and morality)

You seem to suggest morality is divorced from rationality, that one cannot rationally explain one's morals or discuss morality in a rational way. But the truth is that most contemporary moral philosophers find that rationality plays a central role in the creation of morality. (See Jeffrie Murphy, Moral Reasons and the Limitation of Liberty. 40 Wm and Mary L. Rev. 947, at 955) . I agree that discussions of morality can be “emotionally charged” and our beliefs are often deeply “ingrained,” but that doesn’t necessarily divorce them from rationality. In fact, “[P]hilosophers generally see the place of reason in ethics to be an issue of central importance.” (id. at 955).

You also state that morality is a morass of relativism. Quite the opposite. When all the empirical data has been observed and all the questions have been answered, morality is in fact the only thing we as a people can go to that won’t change. Scientists and statisticians will be the first to tell you that everything in the universe is in a constant state of flux, including what we understand about the very foundations of the laws of science. Copernican systems were replaced by Newtonian systems were replaced by Einsteinian systems which today are being questioned. Do they have their place? Most certainly. Can they tell us if the sun will most likely rise tomorrow? Yes. But can they tell us what is “right” and what is “wrong”? That isn’t even their purpose. Even the most hardcore scientist will tell you that.

Which leads us to your suggestion of utilitarianism. Well, you actually seem to make my point for me, though you may not yet realize it. It makes me think that we may actually agree on some of the issues we are debating (though please correct me if I’m wrong). Utilitarianism cannot make normative judgments without another system deciding first what is right and wrong, i.e. a moral system. By saying, “People should be able to choose their own morals to the extent that it does not harm others,” you are making a moral statement.

“Why then does the law protect citizens against, among others, injury, harm, offense and indecency? Surely it is because for someone to inflict these one another without adequate justification and excuse is to act wrongly, i.e. immorally. Indeed, if one begins to examine some of the more specific categories, the most prominent of which is ‘harm,’ one reaches the conclusion that the term itself is a normative one.” (Gerald Dworkin. “Devlin was Right: Law and the Enforcement of Morality, 40 Wm and Mary L. Rev. 927 (1999).)

At some point, one has to take a stand above and beyond empiricism and say simply "this is wrong." One can use utilitarianism or empiricism to work through the data and have brilliant conversation, but there has to come a point where you cannot explain why you believe something without resorting to moral reasoning (or circular logic). There has to be a foundation of moral normative judgment for empirical data to stand on. Otherwise, it is arbitrary information with no value to it.

The foundation of our laws and our society must be a cannon of commonly held beliefs and sense of morality if we are to have any sense of stability or any sense of what is truly right and wrong. Utilitarianism may be a "means" just as you pointed out, but it has to be a "means" to some appointed goal. The goals of Happiness, of Social Harmony and Lack of Harm are all rife with moral undertones. Their very definitions beg the question that there exists a moral system to describe them.

Now does every law have to deal strictly with morality? Does every moralism have to be codified in our law? Do we have to pull out the Bible or the Koran or the Torah every time someone comes before our tribunals? I hope that I don’t even need to answer this question. If this is the caricature that you have painted in your mind of my position, than either I have poorly explained it or you have poorly understood it.

My position is simply this: We must have an underlying foundation of common morality if our society is going to survive. Basic moral beliefs of freedom, justice, liberty, tolerance, self-determination and priority to the family must stand at the center of our existence (This list is not exhaustive by any means but represents a small cross-section)

From these common beliefs, we build our laws and system of government, referring back to our common beliefs when new situations arise that seemingly question who we are. As far as we are capable, we allow our consciences dictate to us what is right and wrong and only involve law when the infraction is so heinous as to threaten the structure of our society.

My original posting last week posited that criminal law is the last battleground on which we want to fight questions of morality. I still believe that. Because our society is SO strong and SO free, most of our debates on morality, utility, and other belief structures don’t have to be immediately translated into legal terms. I think you would agree that they shouldn’t be. If we are living our lives in a moral fashion, we can come to conclusions as a society much sooner than we can through our laws. If our society is adequately built on common core moral beliefs, then the multiplicity of opinions that remain should have the adequate breathing space in which to thrive and find purchase.

But if that small core of common beliefs are constantly disrupted and called into question, then we have no starting point from which to grow. The entire stability of our way of life is constantly threatened. It’s like pulling up the plant every 20 minutes to clip a bit at the roots. It’s just not going to work.