Law and Morality

At least in some instances, law undoubtedly has moral aims. Murder, rape, and incest are but a few cases in which laws act to protect and preserve a moral ecology. Oftentimes, however, law is constricted to its own sphere and construed to be entirely separate from the notion of morality. In setting out or explaining legal norms, officials cannot but use the language of obligations, rights, permissions, powers, liabilities and so on. What officials thereby claim is that law imposes obligations, creates rights, grants permissions, confers powers, and gives rise to liabilities. One might think that the claim here need not be a moral claim. In fact, officials are claiming legal obligations, legal rights, legal permissions, and legal powers. But that cannot be all that their claim for law amounts to. A legal obligation, right, or permission is but only an obligation, right, or permission that exists according to law. Furthermore, an obligation, right, or permission that exists according to law is none other than an obligation or right or permission, the existence of which law claims. So claiming the existence of a legal obligation is simply claiming the existence of what law claims to be an obligation. Therefore, legal obligations are claimed to be something. A ‘moral’ is the name given to the kind of obligation that legal obligations are claimed by law to be. Legal obligations are claimed to be obligations that are not merely claimed, and hence that are not merely legal. They are claimed to have a standing beyond law. As demonstrated, morality clearly forms part of law.

Law can form part of morality. For instance, in terms of morality, I have a reason not to crash my car into yours. That is, I have a moral reason to drive my car on the same side of the road as your drive yours on. Morality is indifferent as to whether I choose to drive my car on the left or right side of the road. Rather, morality is concerned with both by car and your car driving on the same side of the road, thus avoiding a potentially dangerous collision. On the contrary, the law enforces whether we drive on the left or right hand side. Insofar as we both are willing to obey the law and therefore drive on the same side of the road, the law’s intervention and authority provides a suitable way by which the moral principle is attained.

Conversely, morality can form part of law. Indeterminacies of language and intention on the part of law-makers bring morality to bear on their legal deliberations. Judges, the legal officials most publicly afflicted by such indeterminacies, usually rely upon existing legal norms as far as possible. After which, the judge usually combines existing legal norms with other premises, including moral premises not hitherto recognized by law, to reach new legal conclusions. Once the judge uses a moral norm in her legal reasoning, the moral norm applied becomes legally justifiable.