8/14/2019 Basic Observations on Law and Morality

1/2

Basic Observations on Law and Morality

Most recent alteration: September 10, 2001

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 thegood person is the one who will do what is lawful. It is the lawgivers, in theseearly societies, who determine what is right and wrong.

But it is not long before thoughtful people recognize the difference betweenwhat is actually legal, or legally right according to the political authorities andwhat should be legal. What should be legal roughly corresponds to what isreally 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 Sophocles' 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 audiencewould assume was morally right).

The contrast between what the state demands and what the gods demand is notthe only way that this legal v. moral distinction is expressed. We find it also inthe important Greek philosophers, who frequently discuss the distinction interms of appearance and reality, or between what superficially seems or appearsto be the case and what a thorough rational investigation reveals.

Plato, for example, holds that knowledge of what is just or moral, and theability to distinguish true justice or morality from what is merely apparently

just depends on the full development and use of human reason. According toPlato, there is a very close connection between true justice or morality andhuman 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.

Ethics, therefore, has claimed a right to criticize legal arrangements andrecommend changes to them. Many debates about the law, when they are notmerely debates about how legal precedent mechanically applies in a particular situation, are also ethical debates.

8/14/2019 Basic Observations on Law and Morality

2/2

Let's summarize the relationship between morality and law.

(1) The existence of unjust laws (such as those enforcing slavery) proves thatmorality and law are not identical and do not coincide.

(2) The existence of laws that serve to defend basic values--such as lawsagainst 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, whatis 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, governsconduct 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 waythe basic principles of conduct which a society accepts. In that way it can guidethe educators of the next generation by giving them a clear outline of the valuessociety wants taught to its children.