No Necessary Connection Between Law And Morality Philosophy Essay

“The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not comfortable to an assumed standard, is a different enquiry. A law which actually exists, is a law, though we happen to dislike it or though it very from the text by which we regulate our approbation and disapprobation.” [1] 

Such a famous comment by one of the utilitarian theorist Austin intuitively denotes a clear separation between law and morality and by stressing on this point he tried to uphold the positivist theory of law which describes law as it is. But the issue is to what extent Austin is right to say that ‘law…is a law, though we happen to dislike it….’ The comment of this nineteenth century jurist is prone to attack by the traditional natural law philosophers [2] and even by the modern natural law proponents John Finnis [3] and Lon Fuller [4] who deny that separation theses. The crucial point is to consider how should we ‘define’ law. As Professor Hart in his major work, The Concept of Law [5] defined the word ‘definition’ as primarily a matter of drawing lines with or distinguishing between one kind of thing and another, which language marks off by a separate word.” So law could be best defined with the questions of morality and justice. Consequently, positivists seek to ascertain that two different issues should be asked separately a) ‘what is law?-a descriptive issue without recourse to any normative theories of justice and morality and b) what ought the content of law to be-a normative one depended on a society’s moral view. On the contrary the natural lawyers simply understood law by asking one question- the former one and conceived that one must look at the content of the law and any law that offends against a code of morality is not a valid law. But how can we identify what is moral? It differs from person to person, place to place, time to time. It is questionable how far justice to the husband in R v R (Marital Rape) was achieved when the House of Lords thought that it was just at those circumstances to convict a husband for rape though at the time of the crime it was not an offence. So the issue to determine the connection between law and morality ultimately goes to the hand of the judges.

One of the quintessence of legal positivism is the claim that there is no necessary connection between law and morality or law as it is and law as it ought to be found in Professor Hart’s one of the five contentions [6] . The term ‘necessary’ leads to the conclusion that often law will, in fact, coincide with morality. However this similarity would be through the workings of coincidence and not through the dictates of legal necessity. Again the claim is not that issues of morality and justice are comprehensively redundant and worthless. [7] But what is the reason for such a continuing debate even in the 21st century which does not allow numerous jurists to come to a single conclusion that there is or there is not? One can point out to the fact that as long as two legal thoughts-positivism and natural law subsist, the debate between the overlapping of law and morality prevails. If one’s starting point is a traditional form of natural law theory, one’s conclusion about whether something is ‘law’ will much depend on how far he will be justified in obeying that law determining its value towards him based on his moral view. But legal positivism does not bother what is his/her view in the issue of law, to what extent one will be justified in obeying the law, they simply connote that ‘this is the law as it is passed by a highest authority; may be a parliament of a democratic country or the persons to whom law-making powers are delegated or judges or a ruler and so you have to obey it.’ Therefore the connection between law and morality will be better understood from two different perspective-positivism and natural law.

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The work of Thomas Hobbes (1588-1679) constitutes the funding moment for the stream of political philosophy and political orientation that is called as liberalism. In many respects he is the real father of legal positivism [8] although he invoked on notions of natural law that avoided reliance upon a shared notion of excellence or the good put forward by Aristotelian political and jurisprudential thought. In his famous ‘Leviathan’ he stated that “law, properly is the word of him that by right hath command over others” [9] To Hobbes, law is something posited by man, it does not flow from God’s creation as Hobbes always emphasised on establishing a common power to avoid war between men. He contrasted between ‘right’ and ‘law’ and thought that each person in the state of nature has a right to everything and urged that law is necessary to make social order possible. But Hobbes didn’t go further and failed to determine how the state is going to rule and what should guide the state as Stephen Collins argued “….Society is no longer a transcendentally articulated reflection of something predefined, external and beyond itself which orders existence hierarchically.” [10] However Bentham and Austin thought that they had found the answer in utilitarianism. But the issue of a state’s ruling guidelines was not easily solved and is a fertile ground for challenging with different views as law and morality overlaps especially in this respect.

Jeremy Bentham as Hart says surely recognised in himself the Luther of Jurisprudence. [11] He differentiated the question of what the law was from the question of what it ought to be. The ‘ought’ part was answered by the key criterion of judging – or as he put it, the ‘sacred truth’ -that the greatest happiness of the greatest number of number is the foundation of morals and legislation. ‘Enlightened self-interest’ provided the key to understanding ethics, so that a person who always acted with a view to his own maximum satisfaction in the long run would always act rightly. [12] Actually the central foundation of Bentham’s theory was his advocacy on utilitarianism. It is actually a goal-based theory. The classical utilitarian theories took the fundamental basis of morality to be a requirement that happiness should be maximised: the basic principle of utility required us to weigh up the consequences in terms of happiness and unhappiness, of various alternative actions and choose that action which would, on balance, have the best consequence in the sense of producing the largest net of happiness. [13] 

John Austin followed Bentham’s utilitarianism theory and tied his analytical method to a systemic exposition of a view of law known as legal positivism. For Austin law should be an object of ‘scientific’ study the identification of something as law or legally valid was determined neither by prescription nor by moral evaluation; law was simply law and its morality is another issue. Within Austin’s approach whether something is ‘law’ or not, depends on which people have done what: the question turns on an empirical investigation as Professor Morrison [14] argued, and it is a matter mostly of power, not of morality. What makes something law does nothing to guarantee its moral value. Austin combined the laws of God and Human laws (laws set down by men for men) as ‘laws properly so called’ and made a distinction between them. He rejected Blackstone’s naturalist theory that Human laws are of no validity if contrary to the laws of God (Divine law) by arguing “…to say that human laws which conflict with the divine law are not binding, that is to say are not laws, is to talk stark nonsense.” [15] For Austin the fundamental principles of morality were God’s commands, to which utility was an ‘index’ as Professor Hart acknowledged [16] , besides this there was the actual accepted morality of a social group or ‘positive’ morality. The most important factor that Austin elucidated in his lecture is that when a law is in conflict with positive morality or laws of God, people, in no sense, will be better off to disobey it. He found that the term morality differs from person to person. He stated-

“When it is said that a law ought to be disobeyed, what is meant that we are urged to disobey it by motives more cogent and compulsory than those by which it is itself sanctioned…..what appears pernicious to one person may appear beneficial to another….To prove by pertinent reasons that a law is pernicious is highly useful, because such process may lead to the abrogation of the pernicious law. To incite the public to resistance by determinate view of utility may be useful, for resistance, grounded on clear and definite prospects of good, is sometimes beneficial. But to proclaim generally that all laws which are pernicious or not to the will of God are void, and not to be tolerated, is to preach anarchy, hostile, and perilous as much to wise and benign rule as to stupid and galling tyranny.” [17] 

What Austin was trying to say is simply if laws reached a certain degree of inequity there would be a plain and moral obligation to resist them and to withhold obedience. As a Historical connection between law and morality it is ostensible that the Utilitarians did not deny that as a matter of historical fact, the development of legal system has been powerfully influenced by moral opinion, and conversely, that moral standards had been profoundly influenced by law, so that the content of many legal rules mirrors moral rules or principles. Professor Hart found that both Austin and Bentham were anxious to assert two simple things: in the absence of an expressed constitutional and legal provision, it could not follow from the mere fact that a rule violated standard morality that it was not a rule of law; and conversely it could not follow from the mere fact that a rule was morally desirable that it was a rule of law. [18] 

It is relevant at this time to consider the theory of the opponent of positivism-the natural law. It is not a theory of law but principally a theory of ‘morality’ in general. It provides a name for the intersection between law and morals. Its principle claim as Wacks pointed out what naturally is, ought to be. [19] From the time of the ancient Greeks up until the sixteenth or seventeenth centuries, there was only one kind of legal theory-‘natural law’. The essence of this theory was that the law must be understood as a practical application of morality-men using his reason and possibly with the help of the revelation of the God or gods, could come to understand how he should act rightly in respect of his fellow men; hence law and morality are intimately connected. But how should one define morality? For Fuller-“The inner voice of conscience, notions of right and wrong based on religious belief, common conceptions of decency and fair play, culturally conditioned prejudices-all of these are grouped together under the heading of ‘morality’ and are excluded from the domain of law.” [20] They can be found in nature to which one is accustomed to and varies from custom to custom. There may be no real consensus in a society as to what constitutes morality.

The philosophical tradition that began with Socrates, Plato, Aristotle and the Stoics experienced different approaches of explaining the common nature of man which might deliver a common morality. A very important aspect of natural law explained what it was to rule and legislate and judge cases rightly; so part of natural law was the ‘morality’ of law, narrowly construed as the laws passed by legislation and legal system of courts, judges and so on. Nowadays, natural law is generally taken to mean only that part of the original moral theory which explains the way that the law, narrowly construed, operates as part of the broader moral life of human beings. That narrowing of focus has to do with the way in which the nature of morality as explained by natural law theory was drawn upon to justify existing legal authorities. For Plato the fundamentals of ethics lay in absolute values the things could emulate. [21] In his Nicomachean Ethics Aristotle found that it was essential to understand man’s telos (goal or purpose) which reflected his nature, in particular, Aristotle thought that man was social, political and ought knowledge, and only when in a position to fulfil these aspects of his nature could men flourish and achieve the ‘good life’. [22] But one can point out to the ancient formulation of natural law expressed by the Roman orator Cicero. Cicero identified two different sources of natural law. First our shared reason-our ‘shared conceptions’ gives us by nature by which we all classify things in the same way, evil with evil, good with good and so on; but secondly, God, the author of the natural law. [23] But there may be a tension between reason and revelation which remained a source of doubt throughout the Renaissance. However Dutch legal scholar Grotius denied that right conduct was good just because God willed it holding that natural law would be valid even if God didn’t exist. Moral character of the law must be sound in its fundamentals-premise of natural law but it is questionable whether morality can be successfully derived from man’s reason alone, or from revelation or the combination of both. A utilitarian would adamantly oppose this sort of characterisation of morality. So ultimately natural law’s claim that law and morality at some level connected depend upon which sort of theory one espouses.

One of the most influential proponents of natural law is St Thomas Aquinas who reconstructed the classical natural law tradition of the Greeks and Romans within Christian theology. In his principle work Summa Theologiae He described orders of law into four aspects-eternal law, natural law, divine law and human (positive) law. According to him, human law is derived from natural law. Professor Bix [24] illustrated that to Acquinas this derivation has different aspects. Sometimes natural law dictates what the positive law should be and sometimes leaves room for human choice. To Aquinas, human law must be compatible with the natural law although not deduced from it in the sense of conclusions from premises. It is not given to us, as is natural law,but is the expression and result of a creative use of human reason. It is for this reason, a human law which fails this compatibility test as to be catalogued as an act of violence rather than as a human law. [25] What is significant here to note that Aquinas didn’t claim that an unjust law is not a law (lex iniusta non est lex) rather he said that an unjust law has more the character of violence than of law. But would the citizens be right to disobey this law? Bix stated that there may be two possible meanings of Aquinas’s comment-‘an act of violence rather than a law’. It might mean that immoral law is not valid law at all and secondly an unjust law is not a law at all ‘in the fullest sense’ and citizens should feel free to disobey it thinking that it were never enacted. He tried to conclude that law which is unjust continues to partake of the character of law in its form, and in this sense participates in the order of law at least, in the minimal way. [26] As there are often moral reasons for obeying even an unjust law: for example, if the law is a part of a generally just legal system, and public disobedience to law might undermine the system, there is a moral reason for at least minimal public compliance with the unjust law. [27] But such a comment of Professor Bix is undesirable as it tends to further question as to how people should weigh the two different issues-moral obligation to obey and law which is unjust. If one thinks that he has, at least, a moral obligation to obey the law, he simply asserts that it is not unjust for him.

Although the medieval and renaissance theorists like Suarez(1548-1617), John Locke(1632-1704), Rousseau(1712-1778) and so on, asserted the natural law theory but they were faced significant attack of positivists and they found that often natural law were the basis of or part of the argument for individual rights and limitation on government; and such discussion were also the groundwork offered of the principles of what would become known as ‘international law’. [28] 

However the post-war recognition of human rights and their expression in declarations such as the charter of the United Nations, the European convention of Human Rights; the impact of Nuremberg war trial; Theory of Lon Fuller; Professor Hart’s minimum content of natural law and especially John Finnis’s modern natural law theory have given a fresh impetus to a reawakening of natural law theory in the twentieth century. [29] So the connection between law and morality still survives.

The modern naturalist John Finnis’s major work ‘Natural law, Natural Rights’ is an attempt to sustain the natural theorist’s projects of exposing and emphasising the importance of the connections between law and morality. He largely followed Aquinas and stated that-“The concern of the tradition [of natural law]…has been to show that the act of positing law (whether judicially or legislatively or otherwise) is an act which can and should be guided by ‘moral’ principles and rules; that those moral norms are a matter of objective reasonableness, not of whim, convention or mere ‘decision’.” [30] Rather than supporting Aquinas’ injunction, “Do good and avoid evil” Finnis opines, there are a number of separate but equally valuable intrinsic goods, which he called ‘basic goods’ that underlie the human appreciation of the value of any particular thing and all man’s purposive activities. These are life, knowledge, play, aesthetic experience, friendship, religion and practical reasonableness. He describes the list of basic goods as self-evident and it does not yet mean moral good. [31] The essential claim that Finnis made about the law is that it is a social institution whose purpose is to regulate the affairs of people and thus contribute to the creation of a community in which everyone can flourish i.e. can realise the seven incommensurable basic values. In this way law is a moral project. Therefore in order to rightly describe the law one must take the position of a person who examines the law with this person in mind, thereby providing a connection between legal philosophy and moral philosophy. [32] So it is clear from Finnis’s opinion that whether one’s description of law is correct or not will depend upon whether one’s moral views are correct. But Weinreb criticised Finnis by raising some fundamental questions about Finnis’s version of natural law-“The law of murder, Finnis says ‘from the layman’s point of view…can be regarded as a directive not to intentionally kill any human being, unless in self-defence..’; this he says,’ corresponds rather closely to the requirement of practical reason…that one is not to deliberately kill the innocent.’ Is it then a requirement of practical reason that one ought not kill a person if it is necessary to prevent him from inflicting a serious but not mortal injury to oneself; to prevent him from inflicting a mortal injury on a near relation, or a friend or a stranger…..Does practical reason prohibit abortion to save the life and health of the mother or simply to avoid an unwanted child? [33] The answer depend on a resolution of uncertainties about the meaning and application of underlying moral values that do not all point in the same direction.

Finnis denied that natural law tradition is founded on the derivation of ‘ought’ from ‘is’. [34] Rather he says natural law is founded on man’s ability to grasp values directly, not inferring them from the facts of the world, thereby distinguishing between fact and value. Interestingly, David Hume [35] first pointed out that one cannot validly infer or derive evaluative propositions from factual ones; the point is typically but thus, “one cannot derive an ‘ought’ from an ‘is’. To say that man is rational is one thing; it is entirely different matter to decide whether acting morally amounts to acting rationally. Most importantly, Professor Hart in his Holmes Lecture delivered at Harvard Law School in April 1957 made a great distinction between law as it ‘is’ and ‘ought’ to be. He defended American Realism who accused the positivists of being formalistic and of ignoring the facts of judicial law-making. Hart found that difficulty arises when there are cases which are outside the hard core of standard instances or settled meaning which he called ‘problems of the penumbra’ [36] . For instance as Hart himself acknowledged ‘if an act forbids someone to take a vehicle on a park’ what should be the meaning of vehicle for this purpose if it is not clearly defined in the act? Besides thinking these penumbral questions rationally Hart observed that there is an alternative to this issue which can make a decision sound by saying that it must be moral judgement about what the law ought to be. This is a matter of judicial process and in this respect Hart found that ‘there is a necessary intersection between law and morality’ [37] . This drastically misleads the emphatic insistence of the Utilitarian (Bentham and Austin) on the separation of law as it is and ought to be. In lieu of saying judges must legislate at this point Hart went on-“we shall say the social policies which guide the judge’s choice are in a sense there for them to discover; the judges are only drawing out of the rule what, if it is properly understood, is latent within it.” [38] Hart went further and asserted that the word ‘ought’ merely reflects the presence of some standard of criticism, one of this standard is moral but not all standards are moral [39] . There may be different points of view regarding the issue of ‘what it ought to be’. To assert mysteriously that there is some fused identity between law as it is and as it ought to be denotes that all questions are fundamentally like those of penumbra and therefore asserts that there is no central element of actual law and there is nothing in the nature of a legal system inconsistent with all questions being open to reconsideration in the light of social policy. [40] 

Besides Finnis’ work, one can draw a great attention to Lon Fuller’s contribution of ‘The Morality of Law’ [41] which arguably can epitomise the connection between law and morality. Rather than focusing on the substantive content of legal rules and assessing them whether they are moral or not, he invoked a ‘procedural’ natural law theory concerning him with the requirement of just law-making and administration, thereby departing from the traditional natural law theory. His natural law theory is concerned to vindicate the notion of ‘legality’ or ‘rule of law’ to provide a sense in which rule by law as opposed to executive fiat or administration is distinctive in a morally significant way. The morality he describes is morality as ‘legality’, meaning morally sound aspects of governing rules. Fuller claimed that a legal system would satisfy the demands of morality to the extent that it adheres to the requirements of the ‘inner morality of law’. He identified eight principles [42] and stated that law should 1)be general 2)be promulgated 3)not be retroactive 4) be clear 5)not be inconsistent 6)not be contradictory 7)be relatively constant through time 8)be congruent with official action. However Fuller’s concept of law is highly criticised by the modern legal positivist Professor Hart and especially on the issue of the connection between law and morality there was a significant debate between Professor Hart and Lon Fuller in the in the Harvard Law Review [43] famously known as ‘Hart-Fuller’ debate.

It is quite relevant at this time to be acquainted with Professor Hart’s definition and theory of the concept of ‘law’ which is regarded as a modern restatement of the theory of legal positivism expounded in the nineteenth century by Bentham and Austin. Hart’s major work of ‘The Concept of law’ [44] provides an accurate account how we should understand law. Hart is opposed to Austin’s command theory that ‘law is a command which obliges a person’ [45] Hart found that besides duty imposing rules there are power-conferring rules and Hart’s central thesis that the central set of elements constituting law consists of the union of primary and secondary rules. [46] Hart believes that a socity will be static, insufficient and would create undesirable uncertainty if there is no power-conferring rules [47] and so Hart constructs three power-conferring rules which he called secondary rules-1)rules of change 2)rules of adjudication and 3)rule of recognition [48] The rule of recognition is as Hart described [49] some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts. Finnis claimed to have found a conceptual, logical link between validity and morality stating that the central set of elements constituting an official’s acceptance of a rule of recognition, is a moral acceptance of the rule. [50] Interestingly, Hart in his ‘Postscript’ [51] found himself that his theory was mistakenly criticised by a leading Philosopher Ronald Dworkin. Dworkin claimed that the existence and the authority of the rule of recognition should depend on the facts of its acceptance by the courts and any rule purporting to be a rule of law that cannot be identified with certainty is not a rule of law. [52] He referred to ‘hard cases’ where it is controversial to find what the law is. Dworkin misunderstood Hart as ‘plain-fact’ positivism. [53] Rather Hart found himself as soft-positivist as he didn’t deny that the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values. Dworkin found it inconsistent with the positivist ‘picture’ of law to argue in favour of soft positivism which allows that a criterion of legal validity may be in part a moral test is. [54] Hart found that in such hard cases (controversial