potentially legitimating grounds for legal coercion Legitimate basis for coercion? Harm to Others? Offence to Others? Harm to Self? Legal Moralism?
Proponents of the harm principle often proceed without supplying any definition or understanding of “harm”. Mill himself gives no explicit general definition of what he means by the word, satisfying himself with various examples, contextual stipulations and hints:
he seems throughout to think no further explanation is necessary, and to count on any literate speaker of English to accept his application of the word or of some proxy for it. (Brown 2017: 411)
As we will see, other writers consider they can detect in Mill one or more ways to define or understand the term. Perhaps, as well as relying on general linguistic intuitions, one can simply cite paradigm cases. These come easily to mind; harm as “broken bones and stolen purses” as Joel Feinberg puts it (Feinberg 1984: 214). Certainly, one harms others, on any folk understanding of the term, by killing, raping, beating, defrauding, or stealing. But the ordinary sense of harm may also suggest that a transitory pain is a harm and may also have rather porous borders with other normative concepts such as “wrong”, May there, then, be trouble ahead developing a sufficiently determinate, discriminating, and workable conception of harm for purposes of applying the harm principle?
Various definitions and understandings of “harm” have been offered. One derived from Mill takes harmful conduct to be “other-concerning” or “other-regarding conduct” and, conversely, harmless conduct is “self-regarding” (Mill On Liberty , ch. 1, para 9). Accordingly, if some actions have no social consequences, they affect only the actor and are therefore harmless. Hart seems discomforted enough by “critics” of this Millian suggestion to have been unwilling to adopt it himself across the board. He surely had James Fitzjames Stephen’s critique of Mill in mind among others (Stephen 1873 [1993]). These critics, he says,
have urged that the line which Mill attempts to draw between actions with which the law may interfere and those with which it may not is illusory. “No man is an island”; and in an organised society it is impossible to identify classes of actions which harm no one or no one but the individual who does them. (Hart 1963 [1982: 5])
Despite seeming to take Stephen’s point against Mill, however, Hart goes on to adopt the other-regarding/self-regarding understanding in a limited context: so far, he says, as the “special topic of sexual morality” is concerned there may exist a realm or area of conduct that is harmless; here it does seem, “prima facie plausible that there are actions immoral by accepted standards and yet not harmful to others” (Hart 1963 [1982: 5]). It is not, however, clear how this understanding of harm is to be reconciled with Hart’s other uses of the term. For example, he discusses (sceptically) whether the “moral distress” of persons occasioned by the moral wrongdoing of others should count as harm to them (Hart 1963 [1982: 46]); cf. Waldron 1987 [1993]); and he asserts that animal cruelty should be criminal, not pace Devlin to “enforce a moral principle”, but on account of animal suffering. If there is a coherent way of bringing these various understandings of harm together, Hart does not himself supply it.
Another understanding of “harm” again takes its cue from Mill, this time from his many references to the “interests” of persons—for example: “insofar as these concern the interests of no person but himself” and “such actions as are prejudicial to the interests of others” (Mill On Liberty , ch. 5, para 2). The important distinction is not that which regards others versus that which regards oneself. It is that which is in the interests of others versus that which is in the interests of oneself. The seminal essay for this reading is from 1960 by John Rees (Rees 1960; cf. Saunders 2016), though Hart appears not to have been aware of it. Rees paved the way for Feinberg’s development of harm as “the setback of interests”. Hence, in addition to Feinberg’s addition of wrongfulness commented on above, Feinberg’s defines harm as “those states of set-back interest that are the consequence of wrongful acts or omissions by others” (Feinberg 1984: 215).
This Mill-inspired move of Rees and Feinberg, of defining harm in terms of interests, smacks of defining one unclear concept in terms of another unclear concept (Miller 2010: 119). The question of what is in a person’s interests—what is at stake for her—is itself a question that requires considerable elucidation. In Derek Parfit’s terms should we understand “interests” in “desire-fulfilment” terms, in “hedonistic” terms, or in accordance with an “objective list” which holds
certain things are good or bad for people, whether or not the people would want to have the good things, or to avoid the bad things? (Parfit 1984: 499)
Might one reasonably think that adjudicating the conflict between hedonistic, desire-fulfilment and objective list understandings of interests is an undertaking no less complex than the harm principle/legal moralism conflict itself? Take an “objective list” understanding of a person’s interests. According to Parfit this might include—as good for a person—“moral goodness, rational activity, the development of one’s abilities” and so on; and it might include—as bad for a person—being “deprived of dignity” (Parfit 1984: 499). If this is always or sometimes the best account of interests, the whole question of “moral harm” that the harm principle aims to expel is potentially reintroduced. The question of which account, or combination of accounts, is the most compelling is very much a live issue (Fletcher 2016).
Another influential understanding of “harm” is that initially proposed by Raz: “To harm a person is to diminish his prospects, to affect adversely his possibilities” (Raz 1986: 414; Gardner & Shute 2000; Simester & von Hirsch 2011; Edwards 2014, 2019). Harm is essentially understood not as a setback to interests, but a setback to autonomy. Autonomy is essentially understood as the ability to choose between an adequate range of valuable options, while in possession of the appropriate capacities to make such choices and while sufficiently independent of others. There are plainly numerous ways one can set back such autonomy. The problem of explaining why pain is harmful raises its head again. Many would take the infliction of pain on another to be harmful, without waiting to ask if the victim has suffered any setback in her ability to choose between an adequate range of valuable options, which surely, she will often not have done. And what of Devlin’s case of harm to animals? Devlin is likely to pop up at this point to repeat his view that the reason we criminalize cruelty to animals is that it is morally wrong and no potential defeating factor is strong enough to overturn that judgement for purposes of criminalization. There is no need to establish any harm in the first place. Hart, as touched on above, while accepting harm must be part of the story, offered the avoidance of “suffering” as the ground for criminalizing animal cruelty. Setback to autonomy or prospect-harm, however, looks like a non-starter, for animals, though beings that can be harmed, are not autonomous beings, at least on any standard account. Similarly, severely mentally disordered persons may in some cases lack the capacity for autonomy, but it is plain as day that they can be harmed, something the “setback to autonomy” or “prospect harm” conception seems ill equipped to account for (Stanton-Ife 2010: 157–162; Tadros 2011).
One upshot of the varying, sometimes implicit, understanding of harm is surely that anyone propounding an argument based on the harm principle needs to be clear about how they are using the term “harm”. For the term may hide a host of questions that themselves need to be resolved.
Moving on from questions of definition, what are the foundations of the harm principle? Mill, together with Jeremy Bentham and Henry Sidgwick, was one of three giants of nineteenth century utilitarianism. He declared utility to be the ultimate appeal on all ethical questions. Speaking of his harm principle, he also declared:
I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent from utility. (Mill On Liberty , ch. 1.11 [1993: 79])
The harm principle sounds rather like the (foregone) stuff of abstract right, so how is utility to give any support to the harm principle? At first sight, the principle of utility looks like a straightforward rival to the harm principle, not its sturdy foundation. Mill held of the principle of utility that
actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. (Mill Utilitarianism , ch. 2.2 [1993: 7]
This last formulation seems to counsel states to keep their options open in their law-making. “Do what you can to reverse unhappiness”, the advice seems to be, “and do what you can to promote happiness”,
Coerce to prevent harm to others if that will reverse unhappiness; coerce for some other end if that will equally do the trick.
But as we have just seen, coercion to prevent harmless wrongdoing is ruled out by Mill, irrespective of whether such an action is the state’s best bet for reversing unhappiness.
The path to reconciling the harm principle with utilitarianism is often thought to be some form of indirect utilitarianism (Gray 1996; Mulgan 2007: 117–119). The distinction is drawn between a criterion of rightness and a decision procedure (Mulgan 2007: 117–119). Thus, on this indirect view the words “actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness” is not any part of a decision procedure; it is a criterion of rightness. Sometimes, perhaps often, a criterion of rightness will itself feature heavily in a decision procedure. But at other times a decision procedure will not contain the supreme criterion of rightness. Acting always to promote happiness or minimize unhappiness may be self-defeating for various reasons or impossible in the practical circumstances of ignorance that ordinary people face. Over the course of a lifetime and across all the activities of a legal system, more utility will be produced and disutility avoided if the harm principle has the place Mill argues it has, despite the fact that this will repeatedly require the sacrifice of some utility in day to day legal dealings. Much of this, for Mill, relates to the importance of human liberty to happiness (Gray 1996: 136). Demonstrating that one can really derive something as strong as the harm principle (“to govern absolutely”) in this way is a formidable challenge. It is subject, among other things, to scepticism about the workability of the distinction between criterion of rightness and decision procedure (Griffin 1994; Mulgan 2007). John Gray’s book-long attempt to spell out how the harm principle can be underpinned by indirect utilitarianism came to be repudiated by Gray himself (Gray 1996: postscript) . Contemporary consequentialism, however, continues to flourish (Sinnott-Armstrong 2019); and many accounts of the harm principle still see a form of utilitarianism as the best grounding for the harm principle (Sumner 2004, 2011). Moreover, there are non-utilitarian writers making related arguments in support of the harm principle. Les Green for example argues that
There can be reasons to promulgate, and attempt to conform to, an absolute norm even if the reasons that justify having a norm in that field are defeasible. (Green 2013: 191 )
Other accounts of criminalization maintain utilitarianism or a broad consequentialism but conclude the harm principle must be rejected (Petersen 2020a,b).
In recent years, value-pluralist perfectionism has been more influential than utilitarianism as a foundation for the harm principle, whether argued for explicitly or assumed (Raz 1986; Gardner & Shute 2000; Simester & Von Hirsch 2011; Edwards 2014, 2018 [2021]). Joseph Raz’s classic work The Morality of Freedom contains a defence of the harm principle (Raz 1986; cf. Raz 1989—other leading accounts of perfectionism include Hurka 1993 and Sher 1997). Raz claims that
the autonomy-based principle of freedom is best regarded as providing the moral foundation for the harm principle. (Raz 1986: 400)
At first sight this may be surprising, given the openness of perfectionists to moral reasons in general, an openness that might suggest legal moralism is its natural home so far as the limits of law are concerned. Raz asserts that there is “no fundamental principled inhibition on governments acting for any moral reason” (Raz 1989: 1230, emphasis added). Even reasons that are not “neutral”, or not “public” or some such are not in principle excluded by perfectionism (cf. G. Dworkin 2007). Again: “It makes no sense to say of a state of affairs that it is good, but that fact is no reason to do anything about it” (Raz 1989: 1230). By the same token, presumably, one could substitute the word “bad” for “good” in the previous sentence and the proposition would remain accurate. Thus our starting point is that the law should have available to it any moral reason and has the function to promote the quality of life, including the moral quality of life, of those whose lives and actions the government can affect (Raz 1986: 415). This aspect of perfectionism is apt to make some fear the oppressive imposition of styles of life on unwilling individuals (Sher 1997: 106).
However, such alarmism cannot fairly be applied to a perfectionist view such as Raz’s. It is not that anything one might describe, rightly or wrongly, as a moral reason will do. Raz’s concern is limited to states with “autonomy-respecting cultures” and with what it is to live a good life in such societies. The key, as the phrase “autonomy-respecting culture” would suggest, is autonomy. It is a state’s primary duty in the relevant kind of society to promote, protect and foster the autonomy of all citizens . This requires—on Raz’s account—furnishing all with, or preserving for all, an “adequate range of valuable options”. It also requires seeing to it that persons have the appropriate mental and other capacities to be genuine choosers in conditions of freedom and independence (Raz 1986: 372–373).
Given, then, that Raz’s starting point is that there is no principled inhibition to the law deploying any valid moral reason, an account is plainly needed of how that can be reconciled with his support for the harm principle, a large part of the point of which is to rule out certain moral reasons. But before coming to that, it will be helpful to dwell on autonomy a little longer. In section 2.2 above, the familiar distinction between two kinds of liberty, negative and positive, and a similar distinction within liberal feminist writing, were noted. Autonomy-based accounts plainly go beyond negative liberty as the absence of obstacles, barriers or constraints, and embrace the notions of positive liberty, in terms of authorship (or part-authorship) of one’s own life, ability to choose between options, realize purposes within bounds as the case may be. Furthermore, autonomy is often contrasted with heteronomy. As Marilyn Friedman puts it,
heteronomy…involves behaving or living in accord with what is in some important sense not , or other than , one’s own. (Friedman 2005: 155, author’s emphasis)
There are at least two senses, as she continues, of heteronomy, one whose sources “arise within the self, considered in abstract social isolation;” the other whose sources “derive from interpersonal relations and the treatment of a self by others” (Friedman 2005: 155). The first sense is of course important. It relates, for one thing, to the very real problems that can emerge when an agent’s “desires, emotions, passions, inclinations, drives” are not in good order, or where the agent is addicted or in the grip or a compulsion (Friedman 2005: 155). However, for all its importance, Friedman argues that heteronomy in this sense has been the “almost exclusive” focus in mainstream philosophy. The sorts of heteronomy that are by contrast based on interpersonal relations and the way some agents are treated by others, has been largely neglected outside of liberal feminist circles, where “relational autonomy” has received considerable attention (Friedman 2005: 171; cf. Mackenzie & Stoljar 2000; Friedman 2003; Stoljar 2018). This has led to the underplaying of such phenomena of considerable importance to autonomy as male dominance. Interestingly, Friedman explicitly cites Raz’s account of autonomy as a rare exception to the neglect by the mainstream of the social or interpersonal aspects of autonomy ((Friedman 2005: 171).
Thus the criticism sometimes levelled at perfectionist accounts of the good life, government or law, that they imply the oppressive imposition of styles of life, looks unlikely to get much traction on a form of liberal perfectionism, such as Raz’s, with autonomy for all so embedded in it. This, however, does not explain how an account such as Raz’s can explain its adoption of an anti-moralist harm principle in tandem with its in-principle openness to all valid moral reasons. In other words, how can one derive an anti-moralist harm principle from a position that takes any valid moral ground as in principle available to the state and the law?
Raz’s answer focusses on the coercive means at the law’s disposal:
His autonomy principle “permits and even requires governments to create morally valuable opportunities, and to eliminate repugnant ones ” (Raz 1986: 417). It must, however, respect the harm principle in doing this. It must not use coercion to eliminate repugnant, wrongful opportunities if they are not also harmful in the relevant sense. Coercive interference is a special threat to autonomy. It often violates autonomy in two ways:
First it violates the condition of independence and expresses a relation of domination and an attitude of disrespect for the coerced individual. Second, coercion by criminal penalties is a global and indiscriminate invasion of autonomy. (Raz 1986: 418)
Let us consider both points, beginning with the second. In what sense is the use of coercion a “global and indiscriminate invasion of autonomy”? There is no doubt that sometimes it is. “Depriving a person of opportunities or of the ability to use them is”, as Raz says, “a way of causing him harm”. Again “frustrating [a person’s] pursuit of projects and relationships he has set upon” can cause harm (Raz 1986: 413). Raz alludes to the most common context for the invocation of the harm principle, namely the criminal law. Much behaviour that is criminalized is done under the threat of imprisonment and imprisonment can cut off a very large range of options; or it can reduce them considerably by various forms of disruption or destruction: of family life, deep personal relations, work opportunities, pursuit of valuable outdoor activities, political participation and so on. Richard Lippke distinguishes between the material and the symbolic dimensions of imprisonment. The symbolic dimensions relate to what message the fact of imprisonment conveys to the public and to the prisoner. The material dimensions break down into
Though only one of Lippke’s six material dimensions explicitly mentions autonomy, all have some significant effect on it. Moreover, a similar point applies to the compulsory detention in certain circumstances of mentally disordered persons under the civil law. All of Lippke’s material dimensions can be present there too; and, while the symbolic dimensions of a criminal conviction and punishment are absent, the often-attendant stigma can compromise the autonomy of the detained mentally disordered person in question still further (Stanton-Ife 2012).
Raz, then, is right that coercion by criminal penalties can be “a global and indiscriminate invasion of autonomy”, However, there seem to be two problems with this as a basis for reconciling perfectionism and the harm principle. First, the scope of the justification seems significantly limited; while the criminal penalties can have such an effect, they often will not. For there are many more forms of criminal law coercion in regular use than imprisonment: fines, community service orders and electronic tagging orders are three examples. These methods short of imprisonment can affect options, without necessarily leaving the convicted criminal short of an adequate range of valuable options—in Raz’s terminology; the assault on autonomy will not in most be total or near-total. Take the last-mentioned example: the mandatory wearing of electronic tagging devices. There have been several high-profile cases of sports stars and other celebrities being required to wear such devices. An early example is the English soccer player, Jermaine Pennant. He broke into the first team of a top professional team—the stuff that most English lads’ dreams are made of!—but, soon after, was convicted of a drunk-driving offence. His sentence required him to wear an electronic tag but allowed him to play in top division games with his tag under his sock. [ 12 ] Despite the cloud he was under he certainly did not appear to have an inadequate range of valuable options. The argument at best seems to support the deployment of the harm principle only where lengthy periods of incarceration are deployed or threatened.
Raz does acknowledge that “other forms of coercion may be less severe”. However, he adds that
they all invade autonomy, and they all, at least in this world, do it in a fairly indiscriminate way. That is, there is no practical way of ensuring that the coercion will restrict the victims’ choice of repugnant options but will not interfere with their other choices. (Raz 1986: 418–419)
Leaving the criminal law to one side, there are other legal contexts where Raz intends the harm principle to apply where this argument appears overstated. Consider tax. Of the operation of the harm principle in relation to taxation, Raz writes:
the measures I [support] avoid direct coercion for perfectionist causes. The coercion that they involve can be fully justified on the grounds of protecting and promoting individual autonomy. The simplest example is that of taxation. Taxation is coercive. It is justified in my view only inasmuch as it is useful for the promotion and protection of autonomy for all. (Raz 1989: 1232)
Raz takes taxation to be coercive (indirectly) and argues it should be raised only subject to the terms of the harm principle. But the derivation of a perfectionist harm principle here cannot be based on any “global and indiscriminate” invasion of autonomy, because tax—except in extreme cases where imposed oppressively—does not attack autonomy that hard and, if suitably progressive, should leave the person taxed with her abilities to choose between an adequate range of valuable options intact (Stanton-Ife 2017). Of course, taxation, conceived in this way, does not imply what Raz elsewhere describes as “a coercive imposition of a style of life” (Raz 1986: 161). This seems to reveal that a much more nuanced account of coercion, in its various manifestations, is required, not that coercion “in this world” is always “global and indiscriminate”,
The second problem with Raz’s (correct) observation that coercion by criminal penalties can on occasion be “a global and indiscriminate invasion of autonomy”, is summarized in the question “what follows when it is?” What does follow, surely, is that such coercion must shoulder a large burden of justification. What does not appear to follow is anything to do with what kind of valid moral reason—be it harm-based or wrong-based—should be doing the needed justificatory work. The perfectionist starting point, as we have seen, is that there are no principled limits to the pursuit of moral goals by the law. It is the job of the harm principle to provide them if the harm principle can be successfully derived. Pointing to global and indiscriminate coercion points us to something that requires justification, but not yet to what kind of justification is needed.
As noted above Raz has another argument for liberal perfectionism’s right to claim the harm principle for its own: namely coercion
violates the condition of independence and expresses a relation of domination and an attitude of disrespect for the coerced individual. (Raz 1986: 418)
Might this argument make up the slack? Gerald Dworkin counters that coercing someone based on their wrongful or immoral behaviour need not show disrespect for such a person, “but merely for his conduct” (G. Dworkin 2007: 447). Alternatively, if it be accepted that coercion is disrespectful and expresses a relation of domination, one might again ask why that is not true of someone one coerces out of harming others as much as it is true of coercing someone out of some morally wrongful conduct? In both cases, does the legitimacy of the coercion not turn on the presence of sufficient justification, be that harm-based or wrong-based? Furthermore, if the key argument for the harm principle is really based on respect for independence and opposition to domination, it may seem particularly puzzling to identify how it is really a harm -based argument at all. It is true that independence, is for Raz, part and parcel of his understanding of autonomy (Raz 1986: 377–378); and it is also true that he understands harm in terms of setbacks to autonomy. However, if the argument turns on independence alone, the question arises of whether it does not collapse into—or keep sufficient distance from—certain principles devised in explicit opposition to the harm principle, such as Arthur Ripstein’s “sovereignty principle”? Ripstein argues that conduct should not be legally coerced if it does not wrongfully interfere with the sovereignty of others (Ripstein 2006: 231; for critique, see Tadros 2011).
Raz’s “one simple reason” why “the harm principle is defensible in the light of the principle of autonomy”, viz. that “the means used, coercive interference, violates the autonomy of its victim” (Raz 1986: 418) runs into the difficulty that often coercion does not do that or does not do that very significantly, let alone globally and indiscriminately. Furthermore, where coercion does violate autonomy globally and indiscriminately, it is either wrongful all things considered or justifiable only on the basis of strong valid reasons, which may include (exclusively) wrongness-based reasons for all that is as yet established. Finally, to the extent that the argument turns on independence it is not clear that harm is really doing the work.
As we have seen, several leading legal writers—be they in favour or against—continue to take Mill’s harm principle in original or modified form to be “the dominant theory as to what limits on criminal legislation should be observed by liberal democratic states” (Moore 2017: 461). Katrina Forrester’s post-war history of liberal political thought, however, emphatically puts John Rawls, rather than Mill, at the centre (Forrester 2021); and Piers Norris Turner, in an essay on Mill and modern liberalism, opines that public reason liberalism—whose leading light is Rawls—has become the dominant tradition within liberal thought “over the past three decades” (Turner 2017: 576; cf. Turner and Gaus 2017; Rawls 1999; Quong 2018; Hartley & Watson 2018; Freeman 2020). However, the growing and highly sophisticated literature on public reason among specifically political philosophers has not yet—at least not to the extent that it has in relation to legal moralism and the harm principle—received the sustained study of writers as heavily steeped in the law as Feinberg, Hart or Devlin. Specific legal applications of the public reason approach are, however, already in existence (for example Flanders 2016) and the approach continues to develop.
The approach suggests a different limit of the law: that laws must in some sense be based on public reasons , not reasons harvested from, or based on, comprehensive moral, ethical or religious theories. We saw above that while Devlin, Moore and Hart all supported the decriminalization of gay sex, they did so on very different understandings. Devlin did not rule out circumstances, admittedly extreme ones, in which criminalization might be justifiable in virtue of the intensity and comprehensiveness of the beliefs of ordinary persons in a society. Moore and Hart, by contrast, did implicitly rule out criminalization in such circumstances. Moore because the moral truth of the matter is highly pertinent, indeed decisive —there being nothing morally wrong with gay sex—Hart, despite assuming the moral truth of the matter to be irrelevant— gay sex is not harmful, so the conclusion goes through whether such conduct is wrongful or not. Rawls for his part would no doubt agree with all three on the correctness of decriminalization. But he would seek to exclude, as did Hart and Devlin, any Moore-style or perfectionist appeal to a comprehensive moral understanding to determine the issue. Devlin for his part would have had Moore down as one of the “moral rationalists” whose views he wanted side-lined in favour of the reasonable citizen.
In one way, then, Devlin anticipates a major preoccupation of Rawls. Rawls did not, to be sure, take Devlin’s apparent view that the moral beliefs of a society constitute (its) moral truth. His was not a scepticism about the existence of moral truth, merely a determination to avoid “the zeal to embody the whole truth in politics” (Rawls 1999: 132–133, emphasis added). But both Devlin and Rawls demanded that political power and legal coercion should be justifiable to those subject to them, provided they are reasonable. Thomas Nagel similarly insists a state’s law must do better than just tell those with certain conceptions of the good that they are mistaken, which seems the implication of Moore’s and of the perfectionist view; something more must be offered to them relating, he argues, to the point of view of such persons. According to him we must support:
… the exclusion of certain values from the admissible grounds for the application of coercive state powers. We must agree to refrain from limiting people’s liberty by state action in the name of values that are deeply inadmissible in a certain way from their point of view. (Nagel 1991: 155)
Devlin and Rawls, however, differed in how justification to reasonable citizens should be spelt out and it is here that Rawls develops much of his account. Devlin’s model of the reasonable person was the jury. To the question how the lawmaker is to ascertain the moral judgements of society, Devlin answered,
the moral judgement of society must be something about which any twelve men or women drawn at random might after discussion be expected to be unanimous. (Devlin 1965: 15).
To insist, as both do, that justification must be targeted at the reasonable citizen is to idealize the agreement on which their views were based (Raz 1990 [1994]; Enoch 2013; Billingham & Taylor forthcoming), since neither is saying one should simply seek the acceptance of (all) the citizens as they are, reasonable or not. Insisting on the actual agreement of citizens as they actually are is likely to prove excessively demanding, since too much of the rough must be taken with the smooth, accommodating misanthropic, misogynistic, egotistical, anarchic etc views. Devlin does not idealize a great deal, or at least he does not spell out in any detail how he understands what “reasonable” means, beyond insisting the reasonable jury-member must not hold “irrational” beliefs, such as “homosexuality is the cause of earthquakes” (Devlin 1965: viii). In stating one can notionally pick “twelve men or women at random” he appeared to think that a sample of the population is an adequate pointer to the appropriate morality. Here there is a stark contrast with Rawls. For taking a random sample of the population is to underemphasise moral disagreement, as Rawls would see it. It is not reasonable to think that moral disagreement will disappear in the medium- or even the long-term. And much of this disagreement cannot simply be blamed on the bloody-mindedness of some or on those biased in favour of themselves, their families, or groups. Some of the disagreement is based, rather, on differences over what evidence is appropriate, how much weight should be given to the evidence where it can be agreed upon, how priorities and choices should be made among the vast range of possible values and so on. Rawls describes factors such as these as “the burdens of judgment” (Rawls 1993: 56–57). Hence Rawls idealizes the constituency to whom legal coercion must be justified inter alia as the persons who accept the burdens of judgement and the resulting fact of reasonable pluralism.
The idealization involved in the public reason approach is controversial. There is scepticism in some quarters that there really is any genuine “middle way” between “actual (including implied) agreement and rational justification” (Raz 1990: 46). If too many constraints are built in, the very idea of justification-to a given constituency disappears. The leading natural law theorist John Finnis, writes:
Natural Law theory is nothing other than the account of all the reasons-for-action which people ought to be able to accept, precisely because these are good, valid and sound as reasons. (Finnis 1996: 10–11).
Natural law, theory, is a paradigm “comprehensive” doctrine, however, precisely what is to be avoided in Rawls’ view. If justification-to ends up meaning only giving good reasons to a certain constituency, the idea has all but evaporated.
Another contrast with Devlin’s members of the jury, is that Rawlsian public reason is not simply a matter of getting a sample of the people into a notional room and waiting for them to agree, however that is to be done. Public reason is itself a substantive framework to be shared by everyone, a module, “a complete political conception” whose principles and ideals are to be elaborated and whose arguments are to be deployed in legal argument (Rawls 1999: 138). It has content, in other words, “given by a family of reasonable conceptions of justice” (Rawls 1999: 132). While, as we have just noted, a natural law or Roman Catholic world view cannot itself be adopted under public reason, its conception of the common good or solidarity when “expressed in terms of political values” can be one grounding for a political conception that gives content to public reason (Rawls 1999: 142). For interesting explorations of the relationship between religious comprehensive doctrines and public reason, see, e.g., An-Na’im 2015, Billingham 2021.
Two kinds of issue of special concern to questions of the limits of law concern, first, the scope of public reason and, secondly, its capacity to account convincingly for certain apparently easy cases of legitimate legal coercion. As for the first, Rawls restricts public reason to “constitutional essentials and matters of basic justice” (Rawls 1999: 133). Is it convincing to thus limit public reason? In the eyes of some Rawls is too permissive about important matters of (non-basic) justice and fairness beyond the constitutional essentials and the basic aspects of justice. Jonathan Quong for example objects to Rawls’ openness to perfectionist values so far as “large resources to grand projects in the arts and sciences” are concerned (Quong 2011: 281; Stanton-Ife 2020).
Secondly, how well does the public reason view handle certain obviously legitimate uses of legal coercion, such as the criminalization of murder and rape? While there is no doubt that a Rawlsian public reason module, duly developed, would straightforwardly deliver the bare bones of coercive laws against murder and rape, can this be done fully and satisfactorily without the sort of recourse to comprehensive moral and metaphysical doctrines Rawls wishes to rule out? Take murder as an example. Standardly murder requires proof of at least causation of death with an intention to kill and penalties are among the severest, stretching in various jurisdictions to mandatory life imprisonment or, in some, to capital punishment. But how is “death” in “causation of death” to be understood? It is common to understand it in terms of the cessation of brain stem functioning. But why this understanding? For some putative victim may have irrevocably lost the capacity for consciousness while his or her brain stem continues to function. Is not the wrong of murder truly captured not only when the brain stem ceases functioning, but (possibly before that) when there is such “irrevocable loss of the capacity of consciousness” (Persson 2002; De Grazia 2017: 4.3)? For, one might say, it is the latter that explains what is horrific about murder. Someone who intentionally brings about the permanent cessation of the brain stem functioning of another should not be thought of as a murderer, the argument goes, where the capacity for consciousness of the victim is already known to have been irrevocably lost. Perhaps such conduct ought still to be criminal and labelled as such, only not as murder meriting the mandatory life sentence. The point for present purposes is not to settle the question of what the best understanding of murder should be, or whether the imaginary case should count as murder, only to suggest that these issues are likely to turn, implicitly or explicitly, on comprehensive moral and metaphysical understandings. Public reason will be insufficient-or so the challenge would run (Tadros 2012: 77). Somewhat relatedly is Rawls’ account of abortion—he argues for a “duly qualified right” on the part of a woman “to decide whether or not to end her pregnancy during the first trimester” (Rawls 1993: 243). Whether Rawls is entitled to this conclusion on the basis of public reason has been hotly contested (see the varying perspectives of George 1997 [1999: 209–213]; J. Williams 2015; Kramer 2017: 92–155; Laborde 2018; Chambers 2018; Arrell 2019).
In the Introduction a distinction was drawn between conceptual and evaluative questions about the relationship between law and morality; and it was said that the limits of law is generally taken to be a strictly evaluative question. The term “law” is generally left largely unanalysed, with the emphasis on the law’s coercive means and the extent to which it may legitimately be deployed in the pursuit of moral ends. But will be seen, there are some approaches sceptical of the distinction’s importance to our understanding of the limits of law.
It is uncontroversial to say that a (further) kind of limit of law is that contained in the idea of legality. Lon Fuller famously identified eight “desiderata” for laws. Laws should be general; they should be promulgated to their norm-subjects; and they should be prospective. They should be understandable (perhaps with professional help); the obligations they impose should be susceptible to being jointly fulfilled; and they should not require anything beyond the capacities of their norm-subjects. Laws should be tolerably stable and, finally, they should actually be upheld by the relevant legal officials, rather than ignored, bypassed or replaced by what the officials applying them consider more congenial standards (Fuller 1964; Rundle 2012: Ch. 4; Waldron 2016 [2020]; Sunstein & Vermeule 2020). Kristen Rundle and Jeremy Waldron both argue that the legal positivism of Hart and Raz, as well as a broader instrumentalism that would take in Devlin, [ 13 ] is too casual and accommodating in allowing the designation “legal system” and “law” to systems and norms that fall short on the criteria of legality (Waldron 2008: 14; Rundle 2012: 202). This implies that one cannot simply take the question of the limits of law to be an evaluative question. This would underestimate the extent to which supposedly conceptual questions about the existence of legal systems and laws are themselves evaluative questions. Hence the limits of the law should be seen squarely as both an evaluative and a conceptual question. Against this, while granting that conceptual questions matter and are themselves a large focus in the philosophy of law, one might wonder how far they matter to the specific issue of the limits of the law. If it is accepted for example that Fuller’s desiderata for legality or something close to them are indeed desiderata as well as to some extent conceptual features of the law (as does Raz 1977), does it greatly matter that one might conceive of such features as conceptual to a still greater extent ?
It is widely said by those sympathetic to the instrumentalist understanding of law that law is a “modal kind” rather than a “functional kind”, distinguished by its means (or techniques) rather than its ends; the moral legitimacy of such ends being contingent (Green 1996: 1711). In the words of John Gardner:
[T]o say that law is a modal as opposed to a functional kind is merely to say that law is not distinguished by its functions—by the purposes it is capable of serving. It is distinguished rather by the distinctive means that it provides for serving whatever ends it serves. Law is what Kelsen memorably called a “specific social technique” (Gardner 2012: 195–220, 207; cf. Kelsen 1941; Summers 1971).
The idea of the legal techniques , developed by Robert Summers, from both the positivism of Hans Kelsen and the anti-positivism of Fuller, points however to a line of thought about the limits of the law that is surely due a revival. The debate as it is mostly prosecuted is too dominated by the one “technique” of coercion. While giving coercion its due Summers also emphasized
educational effort, rewards and other incentives, symbolic deployment of legal forms, publicity (favourable or adverse), continuous supervision, public signs and signals, recognized statuses and entities
grants with strings attached. (Summers 1977: 126)
There is also growing awareness at a theoretical level of the importance of expressive values in the law (McAdams 2015). It is something of a loss that the schema developed by Summers and his collaborators, dividing legal techniques into “grievance-remedial”, “penal-corrective”, “administrative-regulatory”, “public-benefit conferral”, “facilitator of private arrangements”, appears to have fallen largely into disuse (Summers et al. 1986). For it allowed various areas of potential legal concern to be examined against a background of various legal techniques, coercive and beyond. Rawls’ question of how far such techniques should be subject to public reason is a further issue that might helpfully be pressed.
The law’s task, put abstractly, is to secure a situation whereby moral goals which, given the current social situation in the country whose law it is, would be unlikely to be achieved without it, and whose achievement by the law is not counter-productive, are realized. (Raz 2003 [2009: 178])
This remark could be taken as the essence of legal moralism. The basic core of legal moralism, as we have seen, is a two-part structure, compounded of a wrong and a set of countervailing and potentially defeating factors, such as liberty and privacy. From within legal moralism there are controversies over how morality should itself be conceived and controversies over how the first part of the structure should be conceived—all moral wrongs or only a subset of them?—and the second part—which countervailing factors, for example, make the list? And what, if anything, unifies them? While Raz’s remark may serve as a pithy statement of legal moralism, Raz himself rejected legal moralism, in favour of a version of the harm principle. Mill’s original harm principle was based on a monistic utilitarianism. There remain adherents of such a utilitarianism, but more influential today is some version of value-pluralism, such as Raz’s liberal perfectionism. The derivation of the harm principle from such pluralistic premises, is as we have seen, a far from straightforward task. Adherents of the harm principle also manifest a strong divide between those who broadly inherit Mill’s principled anti-moralism without his anti-paternalism, such as Hart and Raz and those who inherit both Mill’s principled anti-moralism and his anti-paternalism, such as Feinberg. Into the mix comes Rawlsian public reason. Like one kind of legal moralist, there is an emphasis on steering the justification of legal coercion to the citizens subject to the coercion themselves and from this an aspiration to develop a “module” of political practical reasoning, the public reason of all subjects of a given legal system independent of the comprehensive ethical or religious commitments of some of their number. For the proponent of public reason it is the “zeal to embody the whole truth” that is anathema (Rawls 1999: 132–133). To legal moralists such as Moore, the moral truth, with due sensitivity to the countervailing factors, should rather be the point. The idea that the law has sometimes no limits to hold back the moral truth—which of necessity must lie in the mouth of some (fallible) human—can induce a feeling of vertigo. Perhaps the question ultimately turns on whether there is a genuine alternative.
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civil disobedience | coercion | consequentialism | constitutionalism | criminal law, theories of | death: definition of | feminist philosophy, interventions: liberal feminism | feminist philosophy, topics: perspectives on autonomy | homosexuality | justification, political: public | legal obligation and authority | liberalism | liberty: positive and negative | Mill, John Stuart | Mill, John Stuart: moral and political philosophy | nature of law: legal positivism | paternalism | perfectionism, in moral and political philosophy | pornography: and censorship | public reason | republicanism | Ross, William David | rule of law and procedural fairness | torture
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Law and morality are two normative systems that control and regulate behaviors in a human community so as to allow harmonious and effective intersubjectivity between individuals who recognize one another as bearers of rights. Both notions have their common foundation in the concept of individual autonomy and equal respect for everyone. They have a complementary relationship. Law compensates for the functional weaknesses of morality and morality tempers the mechanical implementation of positive law through the notions of solidarity and responsibility. Different legal thinkers have interpreted the relationship between law and morality in different ways. On the one hand, there are those who argue that law and morality are independent – though not unrelated. For this first group, a law cannot be disregarded merely because it is morally indefensible. On the other hand, there are those who maintain that law and morality are interdependent. For this second group, any law that claims to regulate behavioral expectations must be in harmony with moral norms. Approached from this perspective, the law must be enacted in such a way that it secures the welfare of the individual and the good of the community. Thus, the aim of all laws should be both the attainment of the end of the state and the common good of the community, both immediate and ultimate. For Habermas, law and morality deal with the same problem: legitimately ordering interpersonal relationships through justified norms.
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Charles E. Curran, The Development of Moral Theology (Washington DC: Georgetown University Press, 2013), 74.
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Alexy, “The Dual Nature of Law,” 177.
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John Paul II, Sollicitudo rei Socialis , #38.
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MCCA, 203–4.
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I.O, Introduction, xii.
Habermas, “The Concept of Human Dignity,” 84.
Ibid., 452.
Ibid., 451.
Thomas Aquinas, Summa Theologia , I–II, Q. 94, a. 2.
Ibid., 106.
Jürgen Habermas, “Law and Morality,”
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Exclusive positivism states that moral considerations must be excluded from the concept of law. As Didier Mineur notes, Raz contends that determining what the law is does not necessarily, or conceptually, depend on moral or other evaluative considerations about what the law ought to be in the relevant circumstances (Didier Mineur, “The Moral Foundation of Law and the Ethos of Liberal Democracies,” in Ratio Juris , vol. 25, no. 2, June 2012, p. 140). In line with Mineur, Michael Giudice notes that on Raz’s account it is never a condition of validity or existence of law that moral standards or considerations are satisfied. The existence and content of law always depend on what the official of the legal system actually practice as law (Micheal Giudice, “The Regular Practice of Morality in Law,” in Ratio Juris , vol. 21, no. 1, March 2008, p. 95).
Michael Giudice, “The Regular Practice of Morality in Law,” 99.
Honoré, “The Necessary Connection Between Law and Morality,” 494.
Habermas, “Law and Morality,” 259.
Ibid., 267.
Habermas, “Law and Morality,” 267.
Habermas, “Introduction to the Seminar on Jurgen Habermas’s Discourse Theory,” 331.
Ibid., 452–3.
Habermas, “Law and Morality,” 245–6.
Didier Mineur, “The Moral Foundation of Law and the Ethos of Liberal Democracies,” in Ratio Juris , vol. 25, no. 2 (June 2012): 142.
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Bickenbach, “Law and Morality,” 295.
Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), 223.
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I.O, Editors’ introduction, xii.
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Moka-Mubelo, W. (2017). Law and Morality. In: Reconciling Law and Morality in Human Rights Discourse. Philosophy and Politics - Critical Explorations, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-319-49496-8_3
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Understanding law and morality.
Law and morality are two guiding principles that govern our society. Law refers to the rules created by the state, enforceable through punishment. Morality, on the other hand, is personal or societal beliefs about right and wrong.
Law and morality often intersect, but they are not the same. Laws may be based on moral principles, but not all moral principles are laws. For example, lying is morally wrong, but not illegal unless it causes harm.
Both law and morality are essential for a harmonious society. Law maintains order, while morality guides personal behavior and social interactions.
Introduction.
Law and morality are two integral forces that govern society. They influence human behavior and maintain social order, albeit in different ways. While law is a formal mechanism imposed by institutions, morality is an informal social construct, often derived from cultural, religious, or philosophical beliefs.
Law versus morality.
Despite their overlap, law and morality are distinct. Law is objective, enforceable, and universal within a jurisdiction, while morality is subjective, personal, and varies across cultures. A conflict arises when a law contradicts personal moral beliefs. In such cases, individuals must decide whether to obey the law or their conscience.
In conclusion, law and morality are intertwined yet distinct forces that shape society. Their dynamic interplay creates a balance between societal order and personal ethics. Understanding this relationship is crucial in navigating the complexities of social life, and in fostering a society that respects both legal norms and moral values.
Law and morality are two powerful principles that govern behavior and social structures. They are distinct yet intertwined, each influencing the other in complex ways. The relationship between law and morality has been a topic of philosophical debate for centuries, with scholars examining their interplay and the tensions that often arise between them.
Law refers to the system of rules enacted and enforced by the state or a governing body to regulate behavior. It is a formal mechanism of social control, providing a framework for resolving disputes and maintaining social order. On the other hand, morality refers to the principles or values that individuals or societies regard as right or wrong, independent of legal considerations. Morality is deeply personal and often grounded in cultural, religious, or philosophical beliefs.
The law and morality intersect in many ways. Laws often reflect the moral values of a society, and moral principles can influence the development and interpretation of laws. For instance, laws prohibiting murder, theft, or assault are consistent with widely held moral beliefs about the sanctity of life and property rights.
Tensions between law and morality can arise when the law either oversteps or falls short of moral expectations. Overstepping occurs when laws attempt to regulate personal morality, infringing on individual freedoms. For example, laws that criminalize certain consensual sexual behaviors or personal drug use can be seen as an overreach into the private moral sphere.
When the law falls short of moral expectations, it can lead to perceived injustice. For instance, when corporations exploit legal loopholes to avoid paying taxes, they may be acting within the law but violating moral principles of fairness and social responsibility.
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Introduction, works cited.
The connection between the law and morality is rather controversial as, on the one hand, morality must be separated from law and on the other hand, morality is an inherent part of the law.
The problem of law and morality is rather difficult, as many believe that there are no explicit distinctions between them. There are cases when morals coincide with true legal laws since humans created them. The human reason here could subconsciously shape the morality of law. However, the existence of unjust laws proves that morality and ethics are not similar. Therefore, the connection between the law and morality is rather controversial as, on the one hand, morality must be separated from law and on the other hand, morality is an inherent part of the law. In that regard, the film Trial (1963) is the confrontation of the natural laws based on morality and the juridical laws. In addition, the film also shows how the city creates its vision of the law system.
Law and morality must be separated as legal and moral standards are from being identical.
There is an assumption that law must be separated from morality due to the fact that legal and moral standards could not be identified. Closer attention to these issues was given from the angle of legal positivism. In his article, Hart expresses his radical view on the notion of legality based on social factors but on its positive outcomes. The author insists on the fact that law is neutrally colored; it could not be referred as to something bad or good. Considering this, Hart mentions that, “to enable men to see steadily the precise issues posed by the existence of morally bad laws and to understand the specific character of the authority of a legal order” (Hart 63). The Harts premises are based on the historical background and his referring to Austin whose theory of sovereignty. However, he rejects his idea of law based on the threat of punishment as it already includes the moral aspect. The theory of legal positivism implies that in the eighteenth-century people regard the law as separate from morality.
Hart also argues that the necessity to separate the law from morality is based on the presumption that morality could negatively influence legal standards. The fact is that the notion of morality varies depending on the mentality and culture of individuals. Then the law is the universal notion that comprises a limited number of moral aspects. That is why, the legal deviations are inadmissible since could be reduced to the subjective trial, as depicted in the Welles film under the same name. Hence, the main hero of the novel Joseph K. was taken under open arrest where he was forced to recognize the crime he did not commit. The film shows what consequences could be revealed under the impact of morality under the law and vice versa. The film also represents the corrupt system of law, which is unfair and ineffective. Joseph becomes the victim of demoralized law where the trial justice is handled by the human factors. Considering the film from Hart’s point of view, it teaches that the law should and must be separated from morality. Hart admits certain moral rights to be inserted into the legal system. However, natural laws must be excluded from the process of the creation of the law, as they may have negative outcomes for society.
Further, the movie contradicts Harts’s vision on the faithfulness of the law as it reveals the idea that law should also function as a means of moral satisfaction. The trial is a justice aimed at satisfying moral issues. Hart states, “Whether every particular rule of law must satisfy a moral minimum in order to be a law, but whether a system of rules which altogether failed to do this could be a legal system” (Hart 65). In this respect, careful consideration must have the command theory of law that reveals the falsity of separation of law from morality. To explain such a contradiction, Hart divides the laws of primary and secondary obligations. The theory discloses that there are cases that refuse the logical approach but are based on social aims, which are different in certain societies. Therefore, the law directly depends on society and its peculiarities (Hart 70). In contrast, the problem of morality and law arises when the cases are resolved without consideration of social situation but simply based on rational thinking.
However, Hart in his article considers that if a law violates moral issues it could not be regarded as the standard law. The same is observed in the movie when the main hero is trialed according to the specific laws based on the morals of the citizen but not on the universally acknowledged legal norms. Relying on this, Hart constitutes, “It could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; and conversely, it could not follow from the mere fact that a rule was desirable that it was a rule of law” (Hart, 64). Consequently, the city with his own vision on “law” contains his own vision of morals that considerably deviates the conventional views on ethics and human morale. The main protagonist could not accept the new surrealistic world where he is forced to obey the newly established rules. In the world of the imaginary rules he is accused of an unspecified crime; he is also arrested but not taken in custody. Anyway, this point of view shows the negative influence of morals on the law; at the same time, morality, in its good sense, is an inherent part of the law serving the ground of the legal concepts. In other words, the film proves that law is unlikely to be separated from morals on the mere ground that they were created by humans.
Law is considered as integrity as it identifies moral constraints and political morality.
There is an opposite view, where the law is considered as integrity because it identifies the moral constraints and on political issues. In the article Morality of Law, Lon Fuller expresses his own alternative view on the morale within the legal system. According to his article, Fuller represents two types of the morality of duty and morality of aspiration. According to this, “morality of aspiration starts at the top of human achievement, the morality of duty starts at the bottom” (Fuller 5). The former enlarges on the fidelity to the law that coincides with the adherence to positive rules. Fuller rejects Hart’s ideas about the law principle of adjudication where the law is fully subjected to the state. Considering this, Fuller presents “the internal morality of law” that serves to create just laws pertaining to society. Fuller’s idea of inner morality is rather controversial, as it does not the moral norms as something negative, like in the movie Trial.
Thus, the characters of the film create their own moral system that allows them to interrogate the accused Joseph K. during daily routine. Anyway, the film shows internal morality here is based on corrupt morality that converts the legal system into the distorted juridical mechanism infected by morals. Throughout the movie, where Joseph’s life is a mere trial, the leading character is constantly trying to justify himself in front of the trial for the crime he did not accomplish. His strange feeling of guilt proves Fuller’s theory of internal morality and fidelity to the law. Fuller identifies eight features that make the law fail. In that particular film, the law is distorted due to making the rules that contradict each other (Fuller 33). By this, the author expresses the idea of the availability of law. Hence, the inspectors and a useless advocate serve as the guardians of law that are directed against the good principles of morale. The film shows that morality can destroy the adequacy of law thus supporting Fuller’s idea that the law originates from the moral norms of a particular society.
Due to the fact that morality constitutes the law, there must be corresponding constraints. According to Fuller, the neutrality of internal morality identifies the objectivity of law. In other words, the researcher addresses the legal norms from the retrospective of “morality that makes law possible”. Therefore, only morality of duty but not aspiration must be applied to the legal issues. Here, the Trial is bright evidence of inappropriate legal issues that are based on moral desires but not on obligation. To support the idea, Fuller writes “as a citizen or as an official, [a man] might be found wanting. But in such a case he was condemned for failure, not for being recreant for duty; for the shortcoming, not for wrongdoing” (Fuller 5). The movie manifests that Fuller’s concept of the morality of duty as the basic rules for a full-fledged and just society without which, it would turn out to be a mess. The thrust of the trial lies in the fact that Joseph’s morality of aspiration does not coincide with the social norms.
It is worth saying that Fuller associates inner morality with the morality of the Old Testament and the Ten Commandments (Fuller 6). The above mentions the humans’ obligations to live according to social norms. Fuller shows that morality constitutes a person’s affiliation to a certain society and his/her determination as to the refuge of the community. One could not but mention the connection of God as the creator of law. The movie reveals the impossibility to enter the reign of God, as a man is not worth being equal with God. To put in other words, it is God that could punish and justify whereas a man has to obey. Here, we could observe that God defines the inner morality of each person abused by the government.
In conclusion, the opposed theories of Hart and Fuller reveal several dimensions of the film. From Hart’s point of view, the film Trial teaches why the law should be separated from the law; it also manifests a rigid distinction between moral and legal standards. By means of Fuller’s theory, it is possible to highlight the ground of the trial and Joseph’s uncertain accusation. The theory of two morality uncovers the points of the corrupt legal system of the city is motivated by the morality of aspiration but not the morality of duty. Anyway, both Fuller and Hart do not fully exclude morality from the law because the law is an obligation but not a desire.
Fuller, Lon. L. Morality of Law. US: Yale University Press, 1969.
Hart, Herbert, “Positivism and the Seperation of Law and Morals”. The Concept of Law, 1961.
The Trial, 1963, Orson Welles, Anthony Perkins. DVD.
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Morality, law and conflicting reasons for action.
Published online by Cambridge University Press: 20 March 2012
In The Concept of Law, H.L.A. Hart suggested that four formal features of morality distinguish it from law: importance, immunity from deliberate change, the nature of moral offences and the form of moral pressure. On closer examination, none of these supposed features clearly distinguishes morality from law, at least in the broad sense of ‘morality’ that Hart adopted. However, a fifth feature of morality mentioned by Hart – namely the role that morality plays in practical reasoning as a source of ultimate standards for assessing human conduct – does illuminate the relationship between law as conceptualised by Hart and morality variously understood. Because morality has this feature, law is always subject to moral assessment, and moral reasons trump legal reasons. It does not follow, however, that law is irrelevant to moral reasoning.
1 A.W.B. Simpson, Reflections on The Concept of Law (Oxford 2011), 1.
2 H.L.A. Hart, The Concept of Law (Oxford 1961). References are to the 2 nd edition, edited by P. Bulloch and J. Raz and published in 1994. The 2 nd edition reprints the 1 st edition with the addition of a posthumous Postscript based on material written but by Hart but not published in his lifetime. The book has been translated into 17 languages, and more than 50,000 copies of the 2 nd edition have been sold since 1998.
3 The separation thesis must be distinguished from the thesis that there is no necessary conceptual connection between law and morality. Hart did not subscribe to the “no necessary connection” thesis. Indeed, it is inconsistent with the separation thesis, which entails that state law is necessarily subject to moral evaluation. Hart also believed that there is a “naturally” necessary connection between law and morality, which is found in the minimum content of natural law ( CL ch. 9). To mark the difference between the separation thesis and the “no necessary connection” thesis, some scholars now associate Hart with the “separability” thesis to the effect that law and morality are “separable” rather than separate. Concerning Hart's motivation in adopting the separation thesis see CL 207–212; see also Soper , P. , “ Choosing a Legal Theory on Moral Grounds ” ( 1986 ) 4 Philosophy and Social Policy 32 CrossRef Google Scholar ; F. Schauer, “Fuller on the Ontological Status of Law” in W.J. Witteveen and W. van der Burg (eds.), Rediscovering Fuller: Essays on Implicit Law and Institutional Design (Amsterdam 1999); L. Murphy, “The Political Question of the Concept of Law” in J. Coleman (ed.), Hart's Postscript: Essays on the Postscript to the Concept of Law (Oxford 2001).
4 The leading modern exponent of this approach is John Finnis: J. Finnis, Natural Law and Natural Rights , 2 nd edn. (Oxford 2011).
5 E.g. N. Simmonds, Law as a Moral Idea (Oxford 2007); L.L. Fuller, The Morality of Law (New Haven 1964).
6 E.g. R. Dworkin, Law's Empire (London 1986), 93: “the most abstract and fundamental point of legal practice is to guide and constrain the power of government. Law insists that force not be used or withheld … except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified.”
7 According to Martin Stone, it is the first, rather than the second, of these assumptions that distinguishes the separation thesis from soft natural law: “Legal Positivism as an Idea about Morality” (2011) 61 University of Toronto L.J. 313. He argues that (to the extent that law and morality share common concerns) soft natural lawyers think of law as a “part of” ( ibid ., p. 341) or, perhaps, an extension or realisation or concretisation of morality; whereas separationists conceive of it as an instrument or application of morality. See also R Dworkin, Justice for Hedgehogs (Cambridge, Mass. 2011), ch.19; concerning Kant's similar view see A. Ripstein, Force and Freedom: Kant's Legal and Political Philosophy (Cambridge, Mass. 2009), 223–5, 255–6. In Stone's account, for soft natural lawyers, morality is incomplete without law. By contrast, for separationists, morality is self-sufficient or, as he puts it, “self-standing” ( ibid ., p. 319). Stone particularly associates the separationist view of morality with the development of utilitarianism as a comprehensive moral theory and decision-procedure. The idea that morality can be fully understood without taking account of law pervades modern moral philosophy.
8 The topic falls between two stools: most philosophers who discuss the nature of morality are uninterested in law while legal theorists are typically more concerned with the normative relationship between law and morality than with the descriptive relationship.
9 Hart actually refers to “secondary” rules that empower the officials rather than to officials. But the significance of secondary rules is that they create and empower the institutions that administer the regime of primary rules.
10 Of course, there are many types of social institutions in addition to those identified by Hart as characteristic of law. In this paper, the terms “institutional” and “institutionalised” refer only to characteristically legal institutions. Ironically, Hart showed very little interest in actual legal institutions and how they operate in practice: Lacey , N. , “ Analytical Jurisprudence versus Descriptive Sociology Revisited ” ( 2006 ) 84 Texas Law Review 945 Google Scholar ; “Out of the ‘Witches’ Cauldron'? Reinterpreting the Context and Reassessing the Significance of the Hart-Fuller Debate” in P. Cane (ed.), The Hart-Fuller Debate in the Twenty-First Century (Oxford 2010).
11 For a suggestive discussion of the relationship between habit, custom and law see J.B. Murphy, “Habit and Convention at the Foundation of Custom” in A. Perreau-Saussine and J.B. Murphy, The Nature of Customary Law: Legal, Historical and Philosophical Perspectives (Cambridge 2007). For the criticism that Hart's account of custom is purely structural see A.W.B. Simpson, Reflections on The Concept of Law, p. 175.
12 Hart contrasted ideals with duties ( CL 182), aspiration and supererogation with obligation. It is not clear why he thought it important to include personal ideals in his account of morality since they have no clear analogy in his account of law, which is social, not personal, and rooted in obligation, not aspiration. Nor is it clear why he limited idiosyncratic, personal morality to ideals. An individual might, for instance, consider vegetarianism an obligation for themselves but not for others. Perhaps more importantly for present purposes, it is not clear whether or to what extent personal morality shares with positive and critical morality the four characteristics listed later in this paragraph – more especially, the last two. Social ideals have an important place in some concepts of law and certain accounts of the normative relationship between law and morality. See, e.g., the work of Simmonds and Fuller cited note 5 above. See also C.A.J. Coady, Messy Morality: The Challenge of Politics (Oxford 2008), 67–70.
13 R. Dworkin, Taking Rights Seriously (London 1977), 53–58. See also G.J. Warnock, The Object of Morality (London 1971), ch. 5.
14 See also R.B. Brandt, A Theory of the Right and the Good (Oxford 1979), 172. It does not follow, of course, that social practices and institutions do not play a part – indeed, a very important part – in the formation of individuals' convictions and even their “personal ideals” (see e.g. P.F. Strawson, “Social Morality and the Individual Ideal” in G. Wallace and A.D.M. Walker, The Definition of Morality (London 1970)).
15 See also N. Cooper, “Two Concepts of Morality” in The Definition of Morality , esp. pp. 84–88. According to James Wallace, the philosopher John Dewey considered customary morality to be prior to critical morality: J.D. Wallace, Moral Relevance and Moral Conflict (Ithaca 1988), 73–6.
16 In Hart's revised view, the “social rule” or “practice” account of norms fails to provide “a sound explanation of morality, either individual or social” ( CL 256). The extent to which “morality” consists of “rules” is an ongoing topic of debate amongst philosophers that Hart does not address.
17 See P. Devlin, The Enforcement of Morals (Oxford 1965) (the Maccabaean Lecture is reproduced in Chapter 1); H.L.A. Hart, Law, Liberty and Morality (Oxford 1963).
18 As Bob Goodin neatly puts it: Goodin , R.E. , “ An Epistemic Case for Legal Moralism ” ( 2010 ) 30 Oxford Journal of Legal Studies 615 CrossRef Google Scholar .
19 According to Hart, Devlin later reverted to the view that “the law [on homosexuality] ought to be altered”: Sugarman , D. , “ Hart Interviewed: HLA Hart in Conversation with David Sugarman ” ( 2005 ) 32 Journal of Law and Society 267, 285 CrossRef Google Scholar .
20 Following Hart's lead, in most jurisprudential discussions of the concept of law, morality is identified by its “form” as opposed to its “substance”. The substance of morality plays a larger role in theoretical discussions of particular areas of the law, such as criminal law and contract law.
21 Hart said much about what he called “the minimum content of natural law” ( CL ch 9). He argued that as a matter of “natural necessity”, both morality and law address certain obstacles to successful social life. The claim that morality is partly a function of human physical and mental characteristics and the natural environment in which we live is, no doubt, relatively uncontroversial; but how much of morality can be explained in this way certainly is not. For an expansive view see J. Finnis, Natural Law and Natural Rights , 2 nd edn (Oxford 2011). This is a key question in contemporary evolutionary and cognitive science. See e.g. R.A. Hinde, Why Good is Good: The Sources of Morality (London 2002); J. Mikhail, “Plucking the Mask of Mystery from Its Face: Jurisprudence and HLA Hart” (2007) 95 Georgetown Law Journal 733.
22 E.g. T.M. Scanlon, What We Owe to Each Other (Cambridge, Mass. 1998), 171–2.
23 “[I]t would be absurd to deny the title of morality to emphatic social vetoes” such as sexual taboos: CL 175. See also CL 182.
24 But not Devlin: Law, Liberty and Morality (note 17 above), pp. 19–20.
25 Ibid ., pp. 22–4.
26 Taking Rights Seriously (note 13 above), p. 255.
27 Ibid ., p. 248.
28 Ibid ., pp. 248, 250.
29 C. McMahon, Reasonable Disagreement: A Theory of Political Morality (Cambridge 2009), 9.
30 E.g. Simpson, Reflections , note 1 above, pp. 157–60.
31 B.Z. Tamanaha, A General Jurisprudence of Law and Society (Oxford 2001).
32 For a suggestive comment by Hart along similar lines see Sugarman, “Hart Interviewed” (n 19 above), 291. For a related point see Krygier , M. , “ The Concept of Law and Social Theory ” ( 1982 ) 2 Oxford Journal of Legal Studies 155, 159 –61 CrossRef Google Scholar . By adopting a concept of morality as autonomous judgment, Neil MacCormick is able to establish a “conceptual” distinction between law and morality: N. MacCormick, Institutions of Law: An Essay in Legal Theory (Oxford 2007), ch. 14.
33 For an extended argument along these lines see J. Shklar, Legalism: Law, Morals and Political Trials (Cambridge, Mass. 1986), 39–64.
34 There are many versions and varieties of both moral realism and moral constructivism. My only concern here is with Hart's unwillingness to commit himself to any version of either. Christopher McMahon develops a view he calls “moral nominalism”, “intermediate” between realism and constructivism, to explain the important phenomenon of reasonable moral disagreement, to which Hart paid little or no attention and which, McMahon says, neither realism nor constructivism can adequately explain: McMahon, Reasonable Disagreement (note 29 above). Central to nominalism is the idea that moral ideas evolves and can change.
35 Because this phrase appears in the Postscript to The Concept of Law , I assume that by “moral principles” Hart means personal moral convictions as opposed to conventional morality. Hard positivists need not and do not reject Hart's view that conventional norms can be part of the law if the rule of recognition so provides: CL 44–8.
36 I assume for the sake of the argument that freedom of speech, equality, due process and so on are “moral” issues. However, it is arguable that framing the debate between hard and soft positivists in terms of the relevance of “morality” to the validity of law raises the stakes unnecessarily. Instead, the difference between the two positions might be said to concern whether the content of a law (as opposed to its source) can affect its validity. This reading of the debate is consistent with the argument made in the next paragraph below. In this light, a provision of the type we are considering would authorise judges, in assessing its validity, to take account of the content as well as the source of a law without raising any issue about the “status” of the relevant “substantive values”, for conformity with which the law is to be tested.
37 Hart may have been attracted to soft positivism because it seems descriptively superior to hard positivism. As a matter of legal doctrine, when legislation is held unconstitutional it is invalidated with retrospective effect, not deprived of effect prospectively. On the other hand, hard positivism is likely to be normatively attractive to those who distrust judicial power or who think that citizens should be able to identify what the law is without recourse to substantive moral reasoning.
38 Matthew Kramer is a soft positivist who commits himself to the view that there are objective moral truths and that it is such truths that the sort of provision we have been discussing incorporates into the law: M.H. Kramer, Where Law and Morality Meet (Oxford 2004), ch 2. However, he also accepts, of course, that judges are morally fallible. His view is that a judge who makes a mistake about what morality requires changes the pre-existing law while a judge who correctly identifies what morality requires applies the pre-existing law. Kramer argues that the interpretation of soft positivism I suggest here “can very easily be extended into an audacious form of rule-scepticism” in relation to the application as opposed to the ascertainment of law ( ibid ., 119). This conclusion seems to me to confuse moral reasoning with textual interpretation or, at least, to rest on a highly formal, rule-based understanding of morality.
39 J. Waldron, “The Irrelevance of Moral Objectivity” in Law and Disagreement (Oxford 1999). MacCormick apparently makes a similar point when he argues that for realists, autonomy is morally rather than metaphysically relevant to their moral lives (MacCormick, note 32 above, p. 250). Unlike Hart, MacCormick appears to have committed himself to some version of constructivism.
40 See e.g. Balcombe , Lord Justice , “ Judicial Decisions and Social Attitudes ” ( 1994 ) 84 Proceedings of the British Academy 209, 229 Google Scholar ; Bingham , Lord of Cornhill, “ The Judges: Active or Passive ” ( 2006 ) 139 Proceedings of the British Academy 55 Google Scholar , 70. For an extended scholarly argument to this effect see M.A. Eisenberg, The Nature of the Common Law (Cambridge, Mass. 1988).
41 Cane , P. , “ Taking Disagreement Seriously: Courts, Legislatures and the Reform of Tort Law ” ( 2005 ) 25 Oxford Journal of Legal Studies 393 CrossRef Google Scholar .
42 Johnson , C.D. , “ Moral and Legal Obligation ” ( 1975 ) 72 Journal of Philosophy 315, 329 –31 CrossRef Google Scholar argues, with particular reference to promising, that in both law and morality importance is related to the level of abstraction and, conversely, specificity, at which their respective “requirements” are stated – the more abstract the more important, the more specific the less important.
43 Note 17 above, p. 22.
45 “Throughout the history of philosophy, by far the most popular candidate for the position of the moral point of view has been self interest”: K. Baier, The Moral Point of View: A Rational Basis of Ethics (Ithaca, NY 1958), p. 187. See also, e.g., S. Scheffler, Human Morality (New York 1992), ch. 2; Leiter , B. , “ Nietzsche and the Morality Critics ” ( 1997 ) 107 Ethics 250, esp. pp. 259 –60 CrossRef Google Scholar , 272.
46 See, e.g., M. Timmons, Moral Theory: An Introduction (Lanham, MD 2002), 134–5.
47 Hart treats this criterion inconsistently, in one place offering it as a point of similarity between law and morality, not difference: CL 172, where he summarises five “striking similarities between moral and legal rules of obligation”.
48 For the suggestion that the legal principle that promises should be kept is just as immune to deliberate change as its moral analogue see Johnson, “Moral and Legal Obligation” (note 42 above), pp. 322–4. In Johnson's view, the important distinction is not between law (changeable) and morality (immune to change) but between fundamental principles (immune to change) and specific rules and obligations (changeable).
49 Indeed, G.E.M. Anscombe famously argued that the concept of morality only makes sense within a religious framework: Ethics, Religion and Politics: The Collected Philosophical Papers of G.E.M. Anscombe, Volume Three (Oxford 1981, ch 4 (“Modern Moral Philosophy”). For a discussion of the role that authority might play in secular morality see S. Fleischacker, The Ethics of Culture (Ithaca, NY 1994), esp. chs. 3 and 4.
50 G. Harman, The Nature of Morality: An Introduction to Ethics (New York 1977), 112.
51 Of course, judicial reasoning is substantively constrained by institutional factors in a way that the moral reasoning of individuals is not.
52 To similar effect: Warnock, The Object of Morality (note 13 above), pp. 49–50.
53 More generally, this tendency may explain why philosophers deny the possibility of strict moral liability: Watkins , J. , “ Responsibility in Context ” ( 2006 ) 26 Oxford Journal of Legal Studies 593 CrossRef Google Scholar , 606.
54 Wallace, Moral Relevance and Moral Conflict (note 15 above), p. 12. Wallace argues that solving moral conflicts requires active interpretation and adaptation of moral rules and principles in a way that changes existing rules and principles and generates new ones. Morality, he asserts, is “an intellectual and cultural achievement” ( ibid , 53) and a matter of “learned dispositions” ( ibid ., p. 55).
55 To similar effect: C.E. Larmore, Patterns of Moral Complexity (Cambridge 1987), 149–50.
56 T. Honoré, “Can and Can't” (1964) 73 Mind 463; reprinted in T. Honoré, Responsibility and Fault (Oxford 1999). I am leaving aside the issue of causal determinism. Whatever the truth may be at the micro-level of physical processes, at the meso-level of practical reasoning and action there is no good reason to ignore the lived experience of freedom and control.
57 Fuller's famous list of pathologies of rules includes “requiring conduct beyond the powers of the affected party”: L.L. Fuller, The Morality of Law , revised edn. (New Haven 1969), 39.
58 At any rate, accounts of the morality of obligation as opposed to the morality of aspiration: see n 12 above. One exception that I know of is Bernard Gert's account of “common morality”, which he defines as “the moral system that most thoughtful people use, usually implicitly, when they make moral decisions and judgments”: B. Gert, Common Morality: Deciding What to Do (Oxford 2004), v. In Gert's scheme, the ultimate normative standard is “rationality” ( ibid ., pp. 91–5); and (he says) while it is never irrational to act morally, it may be rational to act immorally. Gert's view is explained by the fact that “common morality” is a substantive, not a formal concept. According to Gert, the basic principle of common morality is to “do no harm”. This understanding of morality also leads him to draw a distinction between religious principles about right and wrong, good and bad, virtue and vice on the one hand, and moral principles on the other ( ibid ., p. 4).
59 Cf Scheffler, Human Morality (note 45 above), p. 12: “a shared reference point for the formulation and adjudication of challenges to existing institutions and practices more generally”.
60 Or even that it is male or female: Criscuoli , G. , “ Is the Common Law Masculine or Feminine? ” ( 1981 ) 1 Oxford Journal of Legal Studies 305 CrossRef Google Scholar .
61 For this reason, amongst others, Hart resisted classification of international “law” as (international) morality: CL 227–32.
62 In the philosophical literature there is much discussion of a different question of whether and the extent to which moral reasons for action override or, on the contrary, accommodate reasons of self-interest (and, perhaps, some other types of “non-moral” reasons). See note 45 above. There is a similar debate about the relationship between moral reasons and reasons of public interest: P. Cane, Responsibility in Law and Morality (Oxford 2002), 276–7; see also Hart's discussion of the relationship between “justice” and “social/public/common good” ( CL 166–7). The point I am making in the text assumes that the question of what reasons are moral reasons has already been answered. Under a theory that allows reasons of self-interest to trump moral reasons, legal reasons would presumably trump reasons of self-interest. One view of moral reasons for action is that they are “all-things-considered” reasons. So understood, morality would trump law as a matter of definition: Alexander , L. and Schauer , F. , “ Law's Limited Domain Confronts Morality's Universal Empire ” ( 2007 ) 48 William and Mary Law Review 1579 Google Scholar .
63 This way of presenting the issue will not appeal to those who think that all genuine reasons for action are moral. They might prefer a formulation in terms of a conflict of the moral reasons provided by the law and moral reasons apart from the law. See note 6 above.
64 Remember that this statement refers to the function of morality in individuals' practical reasoning. In a moral theory that distinguishes between conventional, positive morality on the one hand and individual, critical morality on the other, critical morality provides ultimate standards for assessing positive morality as much as other conventional normative systems.
65 Honoré , T. , “ The Dependence of Morality on Law ” ( 1993 ) 13 Oxford Journal of Legal Studies 1 CrossRef Google Scholar .
66 Even legal norms that are morally “arbitrary” in the sense that the norm chosen (e.g. drive on the left) is no more or less acceptable than some alternative (e.g. drive on the right) so that the choice between them is of “no intrinsic importance” ( CL 229–30) may provide moral reasons for action. Hart believed that morality “logically” cannot be arbitrary in this sense ( CL 229). However, if morality is understood not only to require and prohibit conduct but also to permit conduct that it neither requires nor prohibits, it is logically possible that in any particular situation several courses of conduct may be of equal moral value so that none is morally preferable to any alternative.
67 I hope that this account of the relationship between law and moral reasoning, both “everyday” and “philosophical”, is an improvement on the account I gave in Responsibility in Law and Morality , which was fairly criticised by Watkins , Jeremy , “ Responsibility in Context ” ( 2006 ) 26 Oxford Journal of Legal Studies 593 CrossRef Google Scholar .
68 I am not sure whether Alexander and Schauer (note 62 above) go quite as far as this.
69 Finnis, op. cit. note 4 above, p. 14.
70 Simmonds, op. cit. note 5 above.
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14 Pages Posted: 11 Jul 2024
DePaul University - College of Law
DePaul University
Date Written: July 03, 2024
This open letter to law students discusses the Model Penal Code's retraction of its provisions on death penalty procedure, with an emphasis on moral implications that are relevant to all future members of the bar.
Keywords: death penalty, mitigation, aggravation, Model Penal Code, procedure
Suggested Citation: Suggested Citation
Depaul university - college of law ( email ).
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Three theses with clear implications concerning the relation between law and morality have been defended in recent years: the sources thesis, the incorporation thesis, and the coherence thesis. This chapter defends the sources thesis against some common misunderstandings, and provides a reason for preferring it to the other two. The argument turns on the nature of authority, which is the subject of the first section. The second section shows the relevance of some of the implications of the analysis to the understanding of the law. Their relation with the three theses is then examined in the next three sections that follow. The last section concludes with some observations concerning the relations between legal theory, law, and morality.
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WASHINGTON - The New York Times' editorial boar d called on voters to reject Donald Trump' s reelection bid, alleging that the former president is "unfit to lead" a second term.
“Mr. Trump has shown a character unworthy of the responsibilities of the presidency. He has demonstrated an utter lack of respect for the Constitution, the rule of law and the American people,” wrote the Times editorial board, made up of opinion journalists, in a piece published Thursday.
“Instead of a cogent vision for the country’s future, Mr. Trump is animated by a thirst for political power: to use the levers of government to advance his interests, satisfy his impulses and exact retribution against those who he thinks have wronged him,” they added.
In the piece, the editorial board outlined five “essential” qualities and values that they feel a president must have - and that they say Trump fails on: moral fitness, principled leadership, character, a president’s words and rule of law.
“We urge voters to see the dangers of a second Trump term clearly and to reject it,” they wrote.
Last month, the New York Times editorial board published a piece calling on President Joe Biden to drop out of the 2024 race following a disastrous debate performance. The president struggled to complete sentences during the showdown and articulate his pitch to voters.
The Times argued in its op-ed piece at the time that "the president is engaged in a reckless gamble," adding that "it's too big a bet to simply hope Americans will overlook or discount Mr. Biden's age and infirmity that they see with their own eyes."
Since the debate, a growing handful of Democratic lawmakers have called on Biden to pass the torch and exit the 2024 race for the White House.
Rep. Hillary Scholten, D-Mich., on Thursday became the 10th House member to publicly call for Biden to leave the presidential race, adding to the drip of lawmakers pushing for change.
Contributing: Riley Beggin, USA TODAY
COMMENTS
Introduction. Moral principles are the backbone of society. In the process of establishing rules and hierarchies to follow, people have chosen certain principles and beliefs that are beneficial to them as a group. Common taboos such as killing or stealing are understood as detrimental to social life, creating an incentive to prevent people from ...
Abstract. This revised edition of one of the classic works of modern legal philosophy, first published in 1979, represents the author's contribution which has had an enduring influence on philosophical work on the nature of law and its relation to morality. The new edition includes two previously uncollected essays and a new introduction from ...
Law can be defined as a body of rules and principles of procedure and conduct established and enforced by a political authority. Morality can be defined as a code of conduct advanced by a society or religion or adopted by an individual to guide his or her own behaviour [1]. In essence, as Kant asserts in Groundwork of the Metaphysics of Morals ...
This chapter distinguishes three types of inquiry about law. It articulates the two conceptual views about morality and the nature of law that comprise the focus of this volume. First, the chapter explains positivist and anti-positivist views with respect to whether it is a conceptual truth that the criteria of legal validity include moral ...
Moral questions inexorably arise in almost any legal system, and confronting them is one of the fundamental characteristics of a free society. 'Law and morality' examines the relationship between the law and the moral practices adopted by society. In some cases, there is conflict between the law and the moral code of certain individuals or ...
This classic collection of essays, first published in 1979, has had an enduring influence on philosophical work on the nature of law and its relation to morality. Raz begins by presenting an analysis of the concept of authority and what is involved in law's claim to moral authority. He then develops a detailed explanation of the nature of law and legal systems, presenting a seminal argument ...
The Limits of Law. First published Sat Jan 29, 2022. A central—perhaps the central—question of the philosophy of law concerns the relationship between law and morality. The concern breaks down into many issues, both conceptual and evaluative. Among the evaluative issues is the question of obedience to law: does the fact that some norm is a ...
Law and morality are two normative systems that control and regulate behaviors in a human community so as to allow harmonious and effective intersubjectivity between individuals who recognize one another as bearers of rights. ... Natural Law and Legal Reasoning. In Natural Law Theory: Contemporary Essays, ed. Robert P. George. New York: Oxford ...
JOSEPH RAZ, ETHICS IN THE PUBLIC DOMAIN, ESSAYS IN THE MORALITY OF LAW AND POLITICS 210 (rev. ed. 1995). Raz further states the three thesis with clear implications concerning the relation between law and morality, that are: (1) The source thesis: All law is sourced based; (2) The incorporation thesis: All law is either sourced-based or ...
The authority of law : essays on law and morality Bookreader Item Preview ... Law -- Philosophy, Legal positivism, Natural law, Law and ethics Publisher Oxford : Clarendon Press ; New York : Oxford University Press Collection internetarchivebooks; printdisabled; inlibrary Contributor
This classic collection of essays, first published in 1979, has had an enduring influence on philosophical work on the nature of law and its relation to morality. Raz begins by presenting an analysis of the concept of authority and what is involved in law's claim to moral authority. He then develops a detailed explanation of the nature of law and legal systems, presenting a seminal argument ...
Law's relation to morality has been debated ever since Jurisprudence itself came to be, and it seems as though it is destined to remain as one of the great philosophical debates. The question of the 'common good' though is slightly more specific than that of just morality, and obviously will require a definition of the common good itself.
250 Words Essay on Law and Morality Introduction. Law and morality are two integral forces that govern society. They influence human behavior and maintain social order, albeit in different ways. While law is a formal mechanism imposed by institutions, morality is an informal social construct, often derived from cultural, religious, or ...
1268 Words. 6 Pages. Open Document. In this essay I intend to discuss the relationship between law and morality through the perspectives of legal philosophers, I will provide a brief explanation of law, and what does law intend to achieve in the society. When discussing the relationship between law and morality I will consider the distinction ...
H.L.A Hart: Within Hart's theory, he maintains that Law and Morality should remain separate. In one of his most famous works; 'The Concept of Law [1] ' he analysis' the relation between that is between law, coercion and morality. In order to try to and clarify whether laws are coercive orders or moral commands.
Law and Moral Obligation. Law and Moral Obligation. Patricia D. Whitet The Authority of Law: Essays on Law and Morality. JOSEPH RAz. The Clarendon Press; Oxford University Press, New York, 1979. Pp. ix, 292. $29.00. One of the major disputes between natural law theorists and. legal positivists concerns the relationship between law and moral- ity.
Law arises in history, to all intents and purposes, side by side with other phenomena of the common life of humanity, such as language, religion, art, and so forth. 1 Close All these modes of the human spirit's life and action, without which man, as such, is inconceivable, cannot be simply products of reflection. Obviously, they cannot have their historical origin in the conscious and willful ...
This may be the case in Austria and the U.S.A. On the other hand LAW conceived in terms of morality can find no place for a positivist or morally neutral LAW-IDEA. For in this case an immoral "law" would be not merely, as in the former case, invalid within the system, but a contradiction in terms throughout the writer's Jurisprudence.
This essay will look at the issue of the relationship between morality and the law. The emotive topic will then be illustrated by looking at whether voluntary euthanasia should be legalised in England. The arguments for and against euthanasia are examined against a background of the various moral theories which clutter the topic.
The problem of law and morality is rather difficult, as many believe that there are no explicit distinctions between them. There are cases when morals coincide with true legal laws since humans created them. The human reason here could subconsciously shape the morality of law. However, the existence of unjust laws proves that morality and ...
In The Concept of Law, H.L.A. Hart suggested that four formal features of morality distinguish it from law: importance, immunity from deliberate change, the nature of moral offences and the form of moral pressure. On closer examination, none of these supposed features clearly distinguishes morality from law, at least in the broad sense of ...
Some would identify law and morality, claiming that moral rules, as the ancient reflections of social values and personal beliefs, are potential law, enforced by the individual choice of moral duty. However, the moral standards are diverse, especially in multicultural societies; hence, a myriad of moral standards might not be generally ...
Abstract. This open letter to law students discusses the Model Penal Code's retraction of its provisions on death penalty procedure, with an emphasis on moral implications that are relevant to all future members of the bar.
His essays on 'Bentham and the Demystification of the Law' and on 'The Nightmare and the Noble Dream' 2 showed him to be consciously sharing the Benthamite sense of the excessive veneration in which the law is held in common-law countries, and its deleterious moral consequences. His fear that in recent years legal theory has lurched ...
In the piece, the editorial board outlined five "essential" qualities and values that they feel a president must have - and that they say Trump fails on: moral fitness, principled leadership ...