Should Law Control Morality It seems as if every complicated moral issue sooner or later becomes a legal issue, at least in the United States. Law and morality intersect in many other matters of grave public concern, such as affirmative action, the death penalty and abortion. Moreover, they are not likely to sort themselves out any more easily with respect to the fruits of the human genome project. One should not make the mistake of assuming that law and morality are coextensive, on the one hand, or of maintaining that they should have as little as possible to do with each other, on the other. In very different ways, both mistakes can be traced to the same fundamental problem: ignoring the full range of ways in which moral considerations enter into wise lawmaking. The first mistake is made by some activists – at all points on the political spectrum – who believe that the legal system should accurately mirror their normative vision of society in every respect (examinedlifejournal.com/articles/ template.php?shorttitle=oppression&authored).
They treat any divergence between the two as an unfortunate compromise, to be overcome as soon as politically feasible.
This approach, of which the Prohibition movement was a paradigmatic example, tends to reduce the moral analysis of lawmaking to scrutiny of the actual content of the legal norm at issue. Its fundamental problem is that it treats an act of law almost as if it were an act of magic. It assumes that by passing a law, we can bring about a desired state of affairs instantaneously, without any effort, cost or abuses. The legal system, however, is administered by individuals and institutions, whose actions and decisions are not always perfect. This system later becomes applied to these flawed individuals and institutions. Moreover, the law is not a collection of discrete elements, but a complicated and interlocking web.
... should never have been issued a permit - but that's a flaw in the law-enforcement system, not in the ... may well be the most settled proposition in constitutional law," (Legal Times 5/22/ 91). In the five years ... Young, 19, was killed by two gang members who mistook him for a member of a rival gang. ... citizens from crime and predation really have the moral authority to tell people what they may and ...
Moral analysis of the human activity of lawmaking must take into account far more than the moral content of the law in question, considered in the abstract. It must also consider how the law will actually function in the particular time, place and community that it purports to govern. The opposite mistake is made by those who say that law should not impose or even promote one or more particular visions of morality they say that its purpose is simply to function as a police officer, by preventing people from being harmed without their consent. According to modern proponents of this view, which is heavily indebted to the 19th-century liberal philosopher John Stuart Mill, the law should ban neither harmless immoralities nor even harmful activities to which all participants have consented (examinedlifejournal.com/articles/ template.php?shorttitle=oppression&authored).
First, the legal theory of law as police officer may be an approach that has some plausibility with respect to criminal law, but it does not adequately explain many other areas of law that have a far greater impact on the lives of most people and that routinely encourage some life choices and discourage others. To take an everyday example, the tax system clearly prefers staid homeowners to more mobile apartment dwellers, although neither lifestyle actually harms anyone. Second, even in the context of criminal law, moral considerations enter into our common judgments in a way that liberal legal theorists find difficult to explain. Murder-for-hire and murder as a hate crime may not harm their respective victims any more than garden-variety homicides, but they are judged more severely and punished them more harshly.
The primary concern of law is the virtue of justice, which calls for right relationships among the members of a community (www.theapologiaproject.org).
... society’s “moral fabric.” He argued that the criminal law must respect and reinforce the moral norms of society in ... a workable test on limiting legal reinforcement of morals. This suggests that the issue of whether law and morality should be independent ... has not always been observed as many legal systems were based on the moral precepts of particular states’ or communities’ ...
Legal justice is concerned primarily with external actions, not with internal ones. The focus of the criminal law, for instance, is upon those acts that gravely harm the well-being of others, not upon those whose main effect is the erosion of the agents own character. But because human beings are integrated unities of body and soul, promoting justice requires that we pay significant attention to the other virtues as well. Many acts of violence are rooted in the vices of excessive ambition or anger, which are countered by the virtues falling under the headings of fortitude and temperance. There is no reason that the legal system as a whole should not encourage these virtues, perhaps through publicly funded programs of education and service, especially those targeted at young people. It is difficult, however, for the law to teach virtues in a pluralistic society.
This, of course, is the most difficult question. It cannot be avoided, however, by an attempt to devise a value-neutral legal system of the sort advocated by some liberal legal philosophers. Whether people like it or not, law always supports some visions of how they should live their lives together, while undermining others. People are far better off taking responsibility for what law teaches, and arguing about what it should teach, than in denying its pedagogical effects altogether (www.theapologiaproject.org).
However, there are some barriers for the law to promote virtues (www.theapologiaproject.org).
There are both practical and moral limits upon the power of law to require good acts and prohibit bad ones.
First, it costs money to pass laws, to publicize them and to enforce them. In some cases, the money may be better spent on other things. Second, the actions required to deter and detect violations of the law are themselves subject to moral evaluation. In some instances, the concrete steps that a state would need to take in order to enforce a particular law are themselves morally repugnant. Third, it is important to remember that while law teaches virtue, its most basic lessons are for ordinary persons, not for saints. As the society has learned from the experiment with prohibition, it is disastrous to attempt to enforce laws, particularly criminal laws that the vast majority of persons will not comply with voluntarily. Criminal law is just a small sliver of the legal framework necessary to promote the common good. All the various components of that framework are infused with a normative vision. Constitutional law articulates a political societys basic framework and core values.
... formally detected and applied, but recognizes that the interpretation of law by legal actors is manipulated by situational factors. BrianTamanaha in ... abstract principles. A legal realist approach on law takes into account extra-legal factors which help shape how law is used within a ... decisions in a timely matter. Elected officials tend to act on expediency and pressure when it comes to making value ...
Corporate law allows persons to form entities (corporations) that will continue to pursue worthwhile purposes long after the original visionaries have left the scene. The institution of marriage is supported not only by laws regulating divorce, but also by laws governing inheritance. The probate law of the vast majority of states protects a surviving spouse against the deceased spouses attempts to disinherit him or her. Criminal law, however, is not the only way of tackling the problem. It is also possible to turn to contract law, which uses less intense but more flexible tools to discourage surrogate motherhood. In the celebrated Baby M case of 1985, for example, the New Jersey Supreme Court refused to enforce a surrogacy contract because it violated public policy (McLynn).
Unlike the criminal law, contract law does not interfere with surrogacy arrangements that are voluntarily brought to completion. It can, however, at least insure that no surrogate mother will be held to an agreement to terminate her parental rights until she has had the opportunity to see the face of the child she has borne. If one looks at the American legal system, he will find the ample evidence of how law can still function as a powerful moral teacher by holding up a compelling, integrated vision of our common life that inspires people to move beyond its strict requirements. For example, the Civil Rights Act, the Americans With Disabilities Act and the Family and Medical Leave Act do not simply impose isolated sets of mandates (McLynn).
They point holistically toward a society infused with the virtue of solidarity and move incrementally toward its realization. In fact, all three make significant contributions to the culture of life so vigorously advocated by Pope John Paul II in his encyclical letter The Gospel of Life.
Moreover, they all embody the same integrated jurisprudence for which the pope calls with respect to life issues in that same encyclical. He writes, It is not enough to remove unjust laws [authorizing and promoting abortion and euthanasia]. The underlying causes of attacks on life have to be eliminated, especially by ensuring proper support for families and motherhood…. It is also necessary to rethink labor, urban, residential and social services policies…so that it becomes effectively possible to take care of children and the elderly. (Anderson) It is quite obvious that law and morality are very tightly connected. People usually try to punish actions that they consider immoral by the means of law. Laws are usually passed according to a societys morals e.g.
... promised to repay the loan. Furthermore, where a contract exists between two parties, and one party subsequent ... can sometimes be consideration for the promise. The act must have been done at the promisor’s ... of past consideration Lord Scarman stated: ‘An act done before the giving of a promise or to ... provided before the promise was made. In general law it is said that past consideration is no ...
murder is immoral, the law severely punishes it. The more difficult question, however, is whether law should control morality. Both of the extreme answers to this question are probably unfair. Each argument has its strong and weak side – there are many factors to be considered. The lawmakers should remember that the modern society is not only democratic, but also very pluralistic, which might make it extremely difficult to design laws that would not violate anybodys moral principles. References: Anderson, Kerby: Politics and Religion, PR Newswire, Oct 14, 1998 McLynn, F. J (1995), Famous Trials: Cases That Made History, Readers Digest, 1995. examinedlifejournal.com/articles/ template.php?shorttitle=oppression&authored Law as a Form of Hierarchical Oppression and the Morality Pertaining to it by Steve Bullivant www.leaderu.com/orgs/probe/docs/xian-pol.html – Government and Law www.theapologiaproject.org – Politics and Religion.