PHILOSOPHY OF LAW PAPER

LAW AND MORALITY

“ARE THERE ANY NECESSARY CONNECTIONS BETWEEN LAW AND

MORALITY?”
BY MARTA RIPOLL DE DAMBORENEA

PROFESSOR ANTIONINO ROTOLO

BRIEF INTRODUCTION

The aim of this paper is to analyze if the relationship between Law and Moral is
necessary. Studying the different points of view of the most important schools of
thought (such as the Natural Legal Theory, the Legal Positivism, the American Legal
Realism, the Critical Legal Theory or the Feminist Legal Theory) and its main authors
(such as Saint Thomas Aquinas, Liam Murphy, John Finnis, John Austin, H. L. A. Hart,
Jules Coleman, Raz, Ronald Dworking, Hans Kelsen or Lon l. Fuller) will help us do it.
Finally, this paper will end up with a little conclusion in which the main points of the
paper will be summarized.
Before getting into the topic, I would like to let clear both concepts:
The legal dictionary defines law as: A body of rules of conduct of binding legal force and
effect, prescribed, recognized, and enforced by controlling authority.
Moral has been defined as the principles and beliefs concerning what is right and wrong.

THE NATURAL LEGAL THEORY

The Natural Legal Theory defends that the authority (namely, the law) must necessarily
be related to the moral.
Different branches (the strong reading, the weak reading and the moral reading) can be
found in this school of thought. Each of them defends different connection strength
between Law and Moral that will be studied further on.

- The Strong Reading, whose main philosopher is Saint Thomas Aquinas (Italian
Dominican friar and priest) , considers Law without reason is not law. Aquinas
defended the connection between Law and Moral claiming, “an unfair Law is not
a truth Law” as it does not adjust itself to legal validity (necessarily, a square has
four and only four sides).
Aquinas talked about the natural and the positive law. The first one, the natural
law is reduced to the human tendencies or instincts, to what the human being

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 does because of its nature. The second one, the positive law, is a demand from
the natural law, which obliges us to act in a certain way usually called moral.
It must been said this theory has been very criticized as the next question has
been raised: What exactly makes things illegal (not legal, not Law)? Everybody
would agree in saying a fake dollar is not a dollar, but isn’t a Cheetah who is
missing a leg a Cheetah? Moreover, the “Officials say-so” objection defends that
the validity depends on what the society considers legal and binding.

- The Moral Reading defends Law is only binding when it is reasonable. One ought
to obey the Law only when it is reasonable. This approach, according to James
Bernard Murphy is trivial; it is so plausible to be uninteresting and indistinctive.
Therefore this reading will not make a difference in the topic that concerns us.

- The Weak Reading defends that Law without Moral is still valid even though it I
defective. A Cheetah who is missing a leg is still a Cheetah, even though it is a
defective one. This way it can be seen the fact of laws being proper laws or not
does not depend on moral, which can only make them defective.

One of the more well known authors of the weak reading is Murphy, who
considered Laws should always be binding even they do not have any intern
reason to be followed, as they would still be laws.

Another important author of this school of thought was John Finnis (Australian
Legal scholar and philosopher), who defended the central case for legality had to
be searched. This “central case” is not only what has been accepted by society
but also what those who must accomplish the Law consider. This way, Finnis
considered that laws, which were not moral or reasonable, should not be
followed. He maintained there is a necessary connection between Law and
Morality, but he did not deny there may be unjust laws.

George Edward Moore (English philosopher) defended that laws had a function
and it had to be decided to follow them or not depending on this function. To
make this decision, their characteristic activity, their goal productivity, their
teleology and their value had to be taken into account. This way, only those laws
we consider moral or logical because of their function must be followed.

THE LEGAL POSITIVISM

The Legal Positivism defends Law and Moral are different, considering Law can not be
reduced to Moral, as it exists in an independent way. A legal norm is independent from
its moral statement. Law can be unfair, but an unmoral law is still a law. Laws can not be
established because of religion or moral. It considers that the existence and content of
law depends on social facts and not on its merits.
As the English jurist John Austin formulated: “The existence of law is one thing; its merit

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and demerit another. Whether it be or be not is one enquiry; whether it be or be not
conformable to an assumed standard, is a different enquiry”.
What this thesis means is that law’s merits does not determine if legal systems exist or
not, as this depends on the presence of governance structures and its recognition as an
authority. Their relation with moral is not sufficient as for this school of thought, law is a
matter of what has been ordered and tolerated.

As it has been said, John Austin was one of the more important authors of the legal
positivism. He considered that the Law’s validity depended on social facts, creating this
way the so called “command theory” according to which there is a sovereign (who does
not obey to any supra human and to which people obey) who imposes norms. This way,
their validity depends on its existence and the sanction that supports this norm.
Therefore, the law is reduced to empirical facts, mandates of this sovereign that are
never related to moral or religion, and whose only validity, the only thing that makes it
binding, is its sanction.

Another important author from this school of thought is Herbert Lionel Adolphus Hart
(influential English legal philosopher of the 20th century), who identified the legal
positivism with “the simple contention that it is no sense a necessary truth that laws
reproduce or satisfy certain demands of morality, though in fact they have often done
so”. At this point, many other philosophers understood this theory as the denial of the
connection between law and morality. As Jules Coleman defended, they must be in
some sense “separable” even if not in fact separable.
The separability thesis asserts that law and morality are different concepts that can
therefore be separated. This abstract formulation can be interpreted in many different
ways. As Hart says, this thesis is no more than the “simple contention that it is in no
sense a necessary truth that laws reproduce or satisfy certain demands of morality,
though in fact they have often done so”. The separability thesis considers it is not
necessarily truth that a legal system in which there is no moral constraints on legal
validity must exist.

At this point, all the positive philosophers agree, but there are conflicting views about if
there are possible legal systems with these characteristics. This is how different
branches can be found in the Legal Positivism School of Thought.

- The Soft Positivism (also known as inclusive positivism) considers it is possible for
a society the rule of recognition (Hart’s second rule), which considers that Law
can incorporate moral, constrains. This does not mean they must necessarily be
connected, but it can be a validity criteria. Jules Leslie Coleman and H. L. A. Hart
maintained this theory.
Hart said about the recognitions rule: “The rule of recognition may incorporate
as criteria of legal validity conformity with moral principles or substantive values
… such as the Sixteenth or Nineteenth Amendments to the United States
Constitution respecting the establishment of religion or abridgements of the

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 right to vote”.
- The Hard Positivism (also known as exclusive positivism) considers that a legal
system can not include moral criteria, as its content can only be determined by
its sources (which includes both the circumstances of its promulgation and
relevant interpretative materials). Joseph Raz maintains this Source Thesis.
- The Pure theory of Law, defended by Hans Kelsen, considers moral and Law are
completely separated to avoid that ideology influences the Law. He pretended to
explain its normativity and legality and did it by the basic norm, the
“grundnorm”, which gives validity to the Law and that must be presupposed. The
“ought” is presupposed as an “is”.
- The Internal Morality of Law, defended by Lon Luvois Fuller, made a difference
between what Law is and what law oughts’ to be.
Fuller defined Law as a particular way of achieving social order by guiding human
behavior according to rules. He considered there was an internal moral of law,
which is based in eight principals:

1. Laws should be general.

2. They should be promulgated, that citizens might know the standards to which
they are being held.
3. Retroactive rule making and application should be minimized.
4. Laws should be understandable.
5. They should not be contradictory.
6. Laws should not require conduct beyond the abilities of those affected.
7. They should remain relatively constant through time.
8. There should be a congruence between the laws as announced and their
actual administration.

Fuller considered that if all these principals are not accomplished, the social
order, which is necessary to guide the human behavior, the Law pretends, could
not be reached. These principals are part of the Law and are integrated in the
same Law. If one of these assumptions is violated, does not mean the legal
system is not good, but it means it simply does not exist.
This is what Fuller considers as moral, these principals. This way, Law and Moral
are from Fuller’s point of view tightly connected.

RONALD MYLES DWORKIN

Ronald Myles Dworkin was an American philosopher and scholar of Constitutional Law
who developed the so called third theory of law as a response to legal positivism, which
was basically constituted by three theoretical commitments: The social fact thesis, the
conventionality thesis and the separability thesis. He discussed the Legal Positivism
School of thought but was not a Natural Legal theorist.
He considered that both, rules and moral principals formed the Law, and therefore he
understood Law as integrity.

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This is why he defended that the judges had to solve cases by taking into account the
common good the legislators looked for when they wrote the laws. Judges had to, from
his point of view, allow moral justification to have an important role in their decisions.
This way, only one law exists and must be applied because this law has been created
based in the legislative and adjudicative principals (these principals are moral).
Law must be applied but also needs to be interpreted basing in moral, even moral does
not give validity to the Law.
Ronald Dworking differences facts and values (what the Law is and what the law oughts
to be) and considers this distinction is quite complicated as what the Law ougths to be
need to take into account moral, politics and the concrete case.
This way, even he gives a big importance to moral the philosopher considers that
principals are not moral, are not absolute and do not have the legal weight laws have.
By formulating this normative theory, Dworking followed the hermeneutic advice of
taking the actual Law system as a reference. If the Law is correctly interpreted in every
single case, the rights can come out of the already existing law. The study of law shows
up some principals (moral principals) that must be recognized as proper law.

THE AMERICAN LEGAL REALISM

The American Legal Realists solved the conceptual approach of the Legal Positivism and
the Natural Legal Theory in favor of an empirical analysis that pretended to show how
judges solve cases. They considered that they not only solved them basing themselves
on the law but also on the creation of new law through the exercise of justice. This
theory defends that judicial decisions are usually more influenced and guided by
political and moral matters that the proper facts of the case.
They focus on the social efficacy, considering that the law is an empirical concept based
in the possibility of obliging people to act in a concrete way. They define Law, as
“prophecies of what courts will do in fact”.
This way, they separate Law and moral considering that law is what more probably will
do the institutions. They base themselves in a moral skepticism supported on the fact
that the judge will not rely on the law to decide but on its own moral, this is why Law
and Moral are to completely different and separated terms for this school of thought.

THE CRITICAL LEGAL THEORY

This school of thought defends the idea that all law is politics, considering that the law
exists to defend private interests to the rest of the society. This way, law gets reduced to
a joint of beliefs that fight against the unfair.
They believe Law is not neutral, as it is politics; this is why it is not useful and needs to
change.
As the American Legal Realists, the Critical Legal Theorists defend the moral skepticism
considering the Law does not back in moral, and that moral is a set of rules subjected in
politics.

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FEMINIST LEGAL THEORY

The Feminist Legal Theory is a philosophy of law based on the political, economic, and
social equality of sexes. The Feminists consider that gender has been created socially,
not biologically and that sex determines such matters as physical appearance and
reproductive capacity, but not psychological, moral or social traits.
This school of thought separates moral and law because they consider that the moral is
not neutral.
Just as the Legal Theory, they consider that the law is a political product that is not
related to the moral and only obeys to the power.

CONCLUSION

After having studied the different schools of thought, it can be said that the only theory
that defends the necessary connection between Law and Moral is the Natural Law
Theory. Even this School of thought has different branches that subtly vary in their
reasoning, the main idea is the same: Legal validity depends on the reasonability of the
Laws.
On the other hand, the rest of Schools of thought analyzed absolutely reject this idea
because of different reasonings but in all the cases defending the different between the
two concepts that worry this paper: Law and Moral.
Last, Ronald Dworking must be mentioned. Even his work can not be classified in any of
the studied schools of thought, he does recognize and defend the connection between
Law and Moral justifying it because of the legal reasoning that judges are supposed to
use in their solutions.