LAW AND MORALITY

2. Legal duties are accompanied by corresponding

MORALITY
rights while moral duties are not.
• “moralis” – proper behavior of a person in
society 3. If somebody violates a legal duty, he or she is
• “mores” – customs, manners, morals punished by the state but often there is nothing
one can do to make up for a serious moral
• It pertains to a person’s character and behavior infraction.
from the point of view of right and wrong.
4. Law is formulated by an easily identifiable
• It has to do with human activities that are looked authority (Congress) but it is more difficult to
upon as good or bad, right or wrong, correct or identify with certainty where moral precepts
incorrect. come from.
• The act or behavior must conform to the
accepted rules of what is considered right, 5. The legal verdict in a situation is black and white,
virtuous, just or proper conduct. regardless of how complex the issues were but
moral issues are shaded in grey.
ETHICS – study of morals (“ethike philosophia” – moral
philosophy from “ethos” – moral character, nature, MORALITY AND GOOD MANNERS
disposition, habit, custom) • Etiquette is the doing of good manners and
MORAL ACT MUST INVOLVE: sometimes regarded as a component of morality

• A motive and intention to act morally • Etiquette covers rules of behavior which are
• Person who chooses to do such action more superficial and less serious than those
• Uncompelled moral choice (voluntary/desired) demanded of morality.
MORALITY AND LAW
• According to Hobbes: Manners are not mere
• Law focuses on external behavior while morality decency of behavior towards other people but
looks into inner motives and intentions of a are qualities of mankind that concern their living
person. together in peace and unity.
• There is considerable overlap in areas where law
and morality concern themselves (Ex. intent and
motive are sometimes considered in various
applications of Criminal and Civil Law)
• Dworkin: Moral criticism is often used to
support a change in the law.
• Some have even maintained that the
interpretation of law must make use of morality.
• Morality and law are not always identical. There
are acts permitted by law that are not
necessarily moral.

5 DIFFERENCES BETWEEN LEGAL AND MORAL DUTIES:

(According to Weeramantry)

1. Legal duties concentrate on external behavior,

while moral duties concentrate on the internal
processes of intention, motive and conscience.
 LEGAL PHILOSPHY • The contentious person is armed and the honest
subject wearied and oppressed
LAW – rule of conduct recognized by custom or by formal
• The judge is more absolute, who, in doubtful
enactment, which a community considers as binding
cases, has a greater scope and liberty
upon its members.
• The remedy of law is often obscure and doubtful
• Stanford Encyclopedia of Philosophy: Law is a • The ignorant lawyer is shrouded by his ignorance
complex social phenomenon and is one of the of the law.
most intricate aspects of human culture.
LAW IS A WAY OF DOING THINGS FOR THE CITIZENS TO
o Law is normative in that it guides human
COMPLY WITH EXISTING COMMUNITY STANDARDS:
conduct, but it is not the only source of
normative conduct. • Moral/ethical
o Other sources of normative conduct: • Economic
religion, morality, custom, and • Cultural
convention. • Religious
o Law is connected with but distinct from • Social benefit/welfare
the other sources of normative
behavior. PHILOSOPHY – love of wisdom or the search for truth.
o Among the sources of law: religion,
• It is the search for the reality and truth of things.
morality, equity, custom and societal
• It endeavors to understand fundamental truths
conventions
about people, the world, the relationship of
• Cicero: Law is a natural force. It is the mind and
people to the world and of people to one
reason of the intelligent man whose natural
another.
function is to command right and forbid
• To get to know the reality or essence of a thing
wrongdoing.
beyond its common or day-to-day appearance.
• Aquinas: Law is a rule and measure of human
• Fr. Ranhiolio Aquino’s definition of philosophy:
acts pertaining to reason. For true will to be
o The knowledge of things by their
lawful it has to be in accord with reason.
ultimate causes or reasons.
• Supreme Court: Law is a rule established to guide
o Provides the person with a map that
our actions with no binding effect until it is
gives coherence to his activities and
enacted, thus it has no application to past times
makes of human life a meaningful whole
but only to future time.
o Something that uncovers the meaning of
• General and Abstract Sense: Law is the science
phenomena
of moral laws founded on the rational nature of
man that governs his free activity for the USES OF PHILOSOPHY
realization of the individual & societal ends of life
1. Deeper Understanding – philosophy is an axe
• Specific and Concrete Sense: Law is a rule of
a. It must continually question everything
conduct, just, obligatory, formulated by
b. To merely accept anything without
legitimate power for common observance and
questioning it is to be somebody else’s
benefit.
puppet
DISSATISFACTION WITH THE LAW c. Wisdom can never be handed down. The
goal of philosophy is wisdom.
• Some are not truly interested in the law’s d. Philosophy is the art of questioning
bedrock principles of truth, fairness and justice. everything.
Rather, in their egotistical quest to win cases 2. Wisdom – philosophy gives us the wisdom to
they regard law practice much like shady understand and forgive and it is enough and
business deals which resort to influence peddling more than the worlds’ wealth for it gives us a
or buying their way to victory. healing unity of soul.
• Multiplicity and length of suit is great.
LEGAL PHILOSOPHY – is a systematic study that seeks to NATURE OF LAW
understand the (a) nature and essence of the law; (b) its
I. LAW AS RULES AND PROCESSES
definition and elements; (c) the sources of its authority;
(d) its various applications and development and (e) its LAW AS RULES – a misconception that laws are applied
role in society. mechanically, even ruthlessly.
FIVE SCHOOLS OF JURISPRUDENCE – have answered • It fails to consider the deeper – human or social
the ramifications of the seminal question “what is the – factors why people violate law, and the
law as such”? impact of the violation on the victim, the larger
society as well as the offender.
1. NATURALISM – Law and morality are not
separate, that an unjust law is not true law and • It merely caters to efficiency and is dismissive of
that law must reflect the eternal verities of the other aspects of human experience.
justice and fairness. There are rational limits to • It does not factor in the relationship of the
the power of congress to enact laws. litigants.
• It only gives a superficial treatment of the
2. POSITIVISM – Law and morality should be problem and does not ask the larger casualties
separate, and that law is valid if it is validly why legal issues ad arisen in the first place.
posited by lawful government/authority. Laws LAW AS PROCESS – the rules of law are merely an
are man-made and socially agreed-upon rules, aspect of the process.
nothing more and nothing less.
• Laws are not just statutes per se but the whole
3. REALISM – Law is determined by real world gamut of the life experience of lawmakers, law
practice and experience. It is not strict scientific, enforcers, law breakers, or followers, as well as
philosophical or logical activity but is based on lawyers, judges and legal theorists.
human-blood and sweat experience. It is a by- • A legal issue may be approached from many
product of the lawmaker/judge’s political, angles: historical, psychological, economic or
religious, economic or psychological beliefs. sociological.

II. COMMON CHARACTERISTICS OF LAW

4. FORMALISM – Law is a strict science governed
by formal axioms and principles used by judges, 1. OBEDIENCE –The degree or freedom to which a
using the rules of logic, in deciding and subject may disobey as well as the extent or
determining the outcome of a case. The abstract coverage of the law is what differentiates the
principles necessary to arrive at a sound various types of law.
judgment are found within the wordings of the a. Natural laws involve all things and
law themselves. cannot be violated; hence the element
of freedom or morality is out of the
5. CRITICAL LEGAL STUDIES – Law is but an question. They are inviolable. (Ex. law
expression of the policy goals of whoever of gravity.)
happens to be at that particular moment in b. Human laws are for man alone. They
history, the dominant social group. involve human conduct which may or
a. Hegemony - sociological process used by may not be obeyed. They are
the dominant power to organize society potentially violable, and the obedience
using their cultural power and influence is anchored on man’s freedom and free
to achieve dominance. will.

2. GENERALITY – sees laws as “generally” rather

than “particularly” framed. The law is the law
regardless of particular attendant
circumstances.
 a. Decisions on legal questions are made in c. A principle of governance where people
advance of the circumstances of the are accountable to laws that are:
application. i. Publicly promulgated
3. PROMULGATION ii. Equally enforced
a. Objections against its essence in law: iii. Independently adjudicated
i. Natural law which has the iv. Consistent with int’l human
character of law needs no rights norms and standard
promulgation
d. Rule of law also requires adherence to
ii. Law’s force affects not only the following legal principles:
those to whom the law is i. Supremacy of the law
directly promulgated but also ii. Accountability to the law
those who were not parties to iii. Fairness to the law
its promulgation iv. Separation of powers
v. Participation in decision-making
iii. Force of the law extends to the vi. Legal certainty
future and binds those unborn vii. Avoidance of arbitrariness
at the time the law was viii. Procedural & legal transparency
promulgated
b. Aquinas reply: 5. IS INTERNATIONAL LAW A TRUE LAW?
i. Natural law is promulgated from a. Arguments against:
the fact that God instilled i. There is no binding law that
natural law into the man’s mind applies to all
so that it can be known naturally ii. There is no world congress
by him iii. There is no world executive
iv. Parties are free to disregard and
ii. Those who are not present it’s unenforceable
during the law’s promulgation
are bound to observe the law in b. Arguments for:
that they can be notified by i. Applicability to all is not a
others of the law after it was requirement for a rule to be
promulgated considered as a law
ii. A world congress/executive is
iii. The durability of written not an essential component in
characters ensures that laws the definition of law
may be continually promulgated iii. Int’l customary norms and
even to the future treaties have binding effects. A
country that violates int’l
4. RULE OF LAW – an established legal principle obligations risk retaliatory
which posits that whenever a legal issue action from int’l community
presents itself, it must be decided by applying
the accepted principles of law
a. The will and personal discretion of the
judge is set aside.
b. The judge must apply the known
principles of law according to the will of
the legislator.