BASIC OBSERVATIONS ON LAW AND MORALITY

At first there seems to be no distinction between law and morality. There are passages in ancient
Greek writers, for example, which seem to suggest that the good person is the one who will do
what is lawful. It is the lawgivers, in these early societies, who determine what is right and
wrong.
But it is not long before thoughtful people recognize the difference between what is
actually legal or legally right according to the political authorities and what should be legal.
What should be legal roughly corresponds to what is really right or just, that is, what we would
call morally right. We find, for instance, the distinction between what is legally or
conventionally right and what is naturally (or as we would say today morally) right.
Sometimes this is expressed as an opposition between what the gods command (i.e., what
is morally right) and what the political authorities command (i.e., what is legally right). This is
dramatically illustrated in Sophocles1' tragedy Antigone, in which the heroine defies the decree
of the king (the source of "legal right" in the circumstances) and buries her brothers (an act the
audience would assume was morally right).
The contrast between what the state demands and what the gods demand is not the only
way that this legal v. moral distinction is expressed. We find it also in the important Greek
philosophers, who frequently discuss the distinction in terms of appearance and reality, or
between what superficially seems or appears to be the case and what a thorough rational
investigation reveals.
Plato, for example, holds that knowledge of what is just or moral, and the ability to
distinguish true justice or morality from what is merely apparently just depends on the full
development and use of human reason. According to Plato, there is a very close connection
between true justice or morality and human well-being or flourishing. Legal and political
arrangements that depart too far from true justice should, if possible, be replaced by
arrangements that better promote justice and thus well-being.

1
Sophocles of Kolōnos (c. 496 - c. 406 BCE) was one of the most famous and celebrated writers of tragedy plays in
ancient Greece and his surviving works, written throughout the 5th century BCE, include such classics as Oedipus
the King, Antigone, and Women of Trachis.

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 Ethics, therefore, has claimed a right to criticize legal arrangements and recommend
changes to them. Many debates about the law, when they are not merely debates about how legal
precedent mechanically applies in a particular situation, are also ethical debates.
Let's summarize the relationship between morality and law.
(1) The existence of unjust laws (such as those enforcing slavery) proves that morality
and law are not identical and do not coincide.
(2) The existence of laws that serve to defend basic values--such as laws against murder,
rape, malicious defamation of character, fraud, bribery, etc. --prove that the two can
work together.
(3) Laws can state what overt offenses count as wrong and therefore punishable.
Although law courts do not always ignore a person's intention or state of mind, the
law cannot normally govern, at least not in a direct way, what is in your heart (your
desires). Because often morality passes judgment on a person's intentions and
character, it has a different scope than the law.
(4) Laws govern conduct at least partly through fear of punishment. Morality, when it is
internalized, when it has become habit-like or second nature, governs conduct without
compulsion. The virtuous person does the appropriate thing because it is the fine or
noble thing to do.
(5) Morality can influence the law in the sense that it can provide the reason for making
whole groups of immoral actions illegal.
(6) Law can be a public expression of morality which codifies in a public way the basic
principles of conduct which a society accepts. In that way it can guide the educators
of the next generation by giving them a clear outline of the values society wants
taught to its children.
Distinction between Law and morals: For the Arndrs theory, there are four points of
deference between Law and morals
1. In law, man is considered as a person because he has a free will. In morals, we
have to do with determining the will towards the good;
2. Law considers man only in so far as he lives in mutiny with others; morals give a
guide to lead him even if he were alone.

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 3. Law has to do with acts in so far as they operate externally, morals look to the
intention- the inner determination and direction of the will.
4. Law governs the will so far as it may by external coercion; morals seed a free self-
determination towards the good.

Relations between Law and Moral. Here seems to be quite a strong connection between
law and morality. Although people sometimes say "you shouldn't legislate morality", they
presumably don't really mean this - why would we outlaw rape and murder if they weren't
wrong? Instead, I suppose they mean that people shouldn't impose their personal moral views
(especially regarding sexuality) upon others. I would agree with that sentiment, though my
reason is precisely because I think legislation should be morally informed, and the "moral views"
in question are entirely misled.
As a quick aside: it is unfortunate that the word "morality" has become associated with
conservative values, because the obvious invalidity of those values to many people tarnishes
their attitude towards morality as a whole. And that is a damn shame. When conservative groups
advocate bigotry masquerading as "family values", we need to recognise the injustice of this, and
instead stand up for what is right. But I digress - this isn't intended as a post about how liberals
need to reclaim the moral high ground.
So we accept that there is a connection between law and morality, but what sort of
connection is it? Their domains are clearly not entirely identical - for example, it may be wrong
to lie to your parents, but it certainly is no business of the law. Perhaps the best way to explain
this is to acknowledge that the law is an extremely blunt tool, and so will be of no help when
dealing with minor or subtle moral issues.
But even if some morality is outside the scope of Law, could Law's domain be a subset of
the Moral? That is, should we only ever outlaw immoral acts, and never morally permissible
ones?
I would like to say 'yes', as it does seem like a good principle. But I can't, because it
contradicts my position on some other issues. That is, I think morality is purely 'other-regarding'
in nature, and merely harming yourself (e.g. smoking in private) is not immoral. On the other
hand, I previously suggested that state paternalism could be acceptable even in cases where
Mill's harm principle would forbid it.

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 So I'm stuck with the following inconsistent triad:
1) X should be illegal only if X is immoral (and sometimes not even then)
2) Purely self-harming actions are not immoral
3) Sometimes, purely self-harming actions should be illegal

Those claims cannot all be true. Each strikes me as plausible, though I am not certain of any of
them. I'm sympathetic towards utilitarianism as a moral theory, which implies the falsity of (2).
But I also think of morality as a purely social phenomenon, so (2) should be true. So that's
another conflict I'll need to sort out someday. For now though, I'm most inclined to doubt (1).

To approach this topic from a slightly different angle now, I owe to Alonzo Fyfe the intriguing
suggestion that we understand law and morality in terms of belief-desire psychological theory.
That theory claims that any human action can be explained solely in terms of the beliefs and
desires of the agent. For example, if I turn on a heater, this may be because I desire to be warm,
and I believe that turning on the heater will achieve this end. To apply this to our current topic,
consider how society can influence the actions of its members. According to belief-desire
psychology, there are two broad options: change someone's beliefs, or change their desires.
Morality, by this understanding, corresponds to the latter option. That is, morality is a
system of socialisation whereby society instills in its members the desire to act in certain ways.
The other method of influence is to alter people's beliefs about how best to fulfill their
desires. This is where Law comes in. Its role (according to this interpretation) is to serve as a
deterrent for those who, for whatever reason, fail to be bound by morality. It achieves this
through the threat of punishment, i.e. by instilling in citizens the belief that breaking the law is
not in their own best interests - they could get caught and sent to jail, which would surely thwart
many of their other desires.
So by this view, law and morality are just two sides of the same coin - namely, that of
socialisation. Morality seeks to influence our behaviour by way of our desires, whereas law is the
'back-up' option, and targets our beliefs.
Do you think that sounds plausible? Comments welcome, as always.