Enquiry into the Relationship between Law and Moral Principles - Essay Example

?AN ENQUIRY INTO THE RELATIONSHIP BETWEEN LAW AND MORAL PRINCIPLES OUTLINE Introduction…………………………..3 Origins of Legal Structures…………...3 Morality……………………………….5 The Individual and Morality…………..6 Ethics & Law………………………….7 Arguments and Debates……………….8 Areas of Concerns……………………..9 Conclusion..............................................10 References……………………………..11 Introduction What is right and wrong has been with humanity from time immemorial. In every society, there has always been a definition of what is acceptable and what is not: what is appropriate and what is inappropriate. Over four thousand years ago, prior to Abrahamic times, there is documentary evidence that morals and laws were seen as the same thing and morals and laws were seen to have the backings of the gods (Bottero, 1992). This therefore implies that peoples in prehistoric times derived their moral, religious and ethical authority from the supernatural, in that the rules and systems of these communities were considered to be something that originated from the spirits that backed the society. In modern times, where most people are influenced by the central principles of Judaism, which is the Torah given to Moses, most people believe that the Law is something that was ‘given’ (Hart, 1994). This is because Exodus 19 indicates that God spoke directly to Moses and the Israelite nation at Mount Sinai and gave them the rules and commandments that find its way to Christian, Jewish and Islamic Laws which form the foundations of most legal systems around the world. This therefore indicates that the evolution of legality is strongly connected to religion and legality. Criminal laws and codes are no exceptions because in most cases, actions are criminalized because they are morally wrong rather than just legally outlawed. Alter et al 2007 indicate that “criminal conviction consists of two pre-requisites, the actus reus (criminal act) and mens rea (criminal intent)”. In other words, for the law to criminalise an individual, the prosecution must prove beyond reasonable doubts that the accused person had an intention to commit a criminal act and he actually committed the criminal act. However, what is a crime and what is not, is deeply connected to the moral structures of a given society. This paper examines the popular arguments that merge the concepts of legality to morality and also, contrary views that makes them distinct and unconnected disciplines. Origins of Legal Structures “Law arises as a social technique which co-actively imposes ways of solving conflicts, protecting fundamental values for a society’s co-existence.” (Marina, 2000). From prehistoric times, people have always seen the need to live together as social units. First of all, every family has a head which is often a father. As part of his duty, a father is supposed to protect the family and make sure everyone does what is expected of him or her in the family. In more complicated situations, where a number of families lived together in a given social setting, there was the need for all the members to have a leader and other social structures that ensured that people could interact with each other with little friction and disagreements. Leadership and social structures varied widely. Leaders were usually chosen based on the pressing needs at the time. A community could chose a leader based on military yardsticks whilst another could chose a leader based on intellectual or productivity qualities. As pointed out by Bottero (1992), most of these early societies had religious beliefs and systems that linked them to the spiritual realms. Religious and spiritual establishments also had custodians who automatically joined the leadership of the community to regulate and maintain social structures with spiritual guidance and directions. Thus for leaders of a community to regulate the life of members of the community, there is the need for a body of rules and codes to set the criteria for people to live up to. With these standards, people who could not live up to the expected behavioural standards could be identified and put on the right track. These standards are therefore upheld and preserved by the leaders of communities and they become the values of the community. These values are proposed by morality and they influence the legal codes of the community (Marina, 2000) Petrazycki (2011) identifies five main conceptual themes that are inherent in law. They include: 1. Anti-formalisation: Law is not concrete. It develops sporadically based on changes in society. 2. Imperative-attributive legal relationships: law is based on a two-way exchange consisting of claims and obligations between individuals and entities. 3. Law is a functional control of social systems: Law is however institutionalised by way of morals crystallised into ethics that urges us to do our duty and give us the right to fight for our rights (Sorokin, 1928). 4. Subjective reality of Law: Actions of people which the law deals with are subjective because they are based on abstract and passive feelings and experiences like love, ambition, vanity, malice and hatred which are all subjective. 5. Morality: Finally, law is based on morality, which is strongly linked to socially accepted norms and values amongst a given group of people. Therefore law is generally built on these foundations. Criminal law has its elements dictated by these factors and this determines the extent to which an action can be punishable before a given body of law. Morality Morality is described as norms that “establish obligations free in respect to others: these authoritatively prescribe certain conduct for us but give others no claim or rights of any kind to fulfilment by others” (Petrazycki, 2011) Thus when connected to the theory of the development of human societies, morals represents the sets of behaviour that a person is expected to exhibit in a given situation by the larger society. Morals are standards and rules that every ‘cultured’ members of a society is expected to honour and uphold. In the wider sense, morality encompasses all the actions a reasonable person in a given society has to adhere to. Failure to adhere to some of these standards will make a person a deviant or an undesirable element in the society. In a narrow sense however, morality can be said to encompass those actions which a person is expected to adhere to although failure to do so will not give rise to any actions against the person. From Petrazycki’s explanation, it appears that morality is some form of standard or expectation that every member of a given society is expected to adhere to but failure to do so does not really lead to any form of sanction against the offender. So looking at the narrow sense, morality refers to the values and norms that a person is expected to live by although they do not come with significant sanctions and punishments. On the other hand, when morality is linked to the concept of leadership, governance and authority, it is noted that the leadership of communities try to institutionalise some morals into ethics so that they can form a part of a legal framework that would control the actions of members of the community. Thus clearly, morality forms the basis to determine what is right and wrong; what is punishable and what is not punishable. These are enshrined into a framework of standards that controls and regulates life in a given community. Morality therefore determines the foundations of “constitutional reasoning, legislative activity, judicial practice and international” (Marina, 2000). Morality defines what actions the state must arise against and what actions people could take other people on for. This forms the basis of criminal and civil law. The idea of having a constitution to regulate life of people in a given nation is based on the fact that the morals of every given nation need to be given some seriousness in its enforcement. However, since society is dynamic and its elements and structures keep on changing, there is the need for nations to have a body that will always review them and make new laws that are relevant to the society and can improve human rights (European Network of Scientific Corporation on Medical & Human Rights, 1998). This gives rise to the establishment of legislative systems, which in democracies seek to represent the views of all members of the community in question. These views and bases include changes in moral standards and social systems that need special consideration. A legal system is always supported by a judiciary, which interprets the existing laws. The judiciary seeks to use morally accepted systems and tools to examine cases to establish and prove actions and intentions of people in cases and decide whether they acted in a criminal manner or not. This is just a method of promoting elements of ethics and morality that are institutionalised in the constitution by people who are aware of these social systems. Additionally, when nations and peoples begin to interact across borders, there is the need for the creation of some universal laws and systems to ensure that moral expectations of peoples are met in some general matters. The Individual and Morality Immanuel Kant (1980) makes very interesting discussions that examines the individual’s position in relation to morality. Kant states that there are some universally accepted right principles that people must adhere to honour. He states that there is an esteem for people who stand for these universally accepted principles. Kant criticises utilitarianism, a system where people seek happiness before they assess whether it is right or not. Kant argues that people should always do what is good or right before considering their own happiness. He therefore recommends that a person should take a position based on circumstances at hand for a purpose of fulfilling a moral good in society. He recommends that people should always conform with universal law and not compromise their ethical stands. This is rooted in the principle of the ‘formula of humanity’, where he argues that in dealing with a human being, we should see the other human being as an end in itself and not a means to an end. We should treat other people on the basis that they are also interacting with us for the betterment of their lives, so a person should not take advantage of another in the name of seeking happiness. Based on this position, the people who support Kant’s thinking argue that the law should become a custodian to make people more moral. It should therefore criminalise actions that are not in conformity with ‘universal law’. This will therefore make it illegal for people to take advantage of others. On this basis, a lot of things that were disregarded years ago like slavery, international trade malpractice and war crimes have been declared morally wrong and they have been institutionalised in most legal systems which declare them as criminal offences. However, in some cases, morality is too extreme to be included in criminal laws. For instance, Kant, realising that his position will not be supported in all legal jurisdictions, at least in his life time in the 1800s, stated that individuals should use the ‘kingdom of end formula’ where people should consider themselves as legislators in situations they find themselves in. They should examine every matter before acting. Individuals should be moved by reason and not desire in ethical dilemmas. This way, he believed that individuals would be more morally upright and not just driven by their desires and instincts. Ethics & Law From the points raised earlier in this paper, it is apparent that morals form the foundations of legal systems and structures in the form of ethics. In other words, morals become institutionalised into legal structures in the form of ethics. Thus morals become ethics that regulate the behaviour of people and with time, they get the force of law by enabling law enforcement agents to criminalise these actions or allow people to demand their rights based on the grievances they suffer from other. In this evolution of morals into ethics, there are certain inherent activities that are worth noting. First of all, ethics comes with responsibility, choice, roles, standards and human nature (Wilhams, 1993). Law is therefore entrenched in subjectivity and relativity. It is therefore important for every nation to have a legal and judicial system that enables each social offence to be evaluated based on its distinct facts and circumstances. It will therefore be right to say that law is just a system of safeguarding morals that are considered serious and are therefore labelled ethics which are enshrined in the legal system. On the other hand, it is not all legal systems that can be seen as safeguarding the moral values and ethics of a given society. In some set ups you get a government that sets up a legal framework that is very alien to the inherent values and systems of the people. An example is a situation where you get a group of elite Western-trained native politicians taking over from a colonial government in a nation where the people have values that are ancient and connected to very basic social settings like villages. In such a situation, the ruling elite will fashion laws based on Western legal structures which might have very little significance to the moral values of the locals because they are very different and have limited scopes that do not support the idea of statehood and nationhood. This has been a real challenge to nation building, democracy and the judiciary in the developing world. This also occurs in the developed world as well. Kelsen (1925) states that “Laws that are not morally compatible are still laws, they represent a pattern of human behaviour and a legal order”. Therefore based on this assertion, it can be said that when a bad government makes laws that are inhumane and morally unacceptable, they need to be followed and obeyed by everyone in the society, irrespective of their political and social affiliation. Petrazycki (2011) reports that Kelsen later stated in the 1960s that although many laws of the Nazis were morally wrong and brought a lot of ruin to Germany as a nation, they are still laws and people living in that era had to obey them, irrespective of their opinion on those laws. Aristotle stated that law is about reason minus passion. People in settings where the laws were amoral had to put their passion on hold and live to obey the laws of the land. Arguments and Debates (Morality V Human Rights) In spite of all these factors that go into the evolution of morality into law, there are several groups of stakeholders in society that have views and opinions on how the relationship between law and morality should merge. This is seen in several ways. In the wider society, there are groups of people who stand for various ethical positions. People like Immanuel Kant and his followers argue that people should treat others fairly because it is a universal law that must be obeyed at all times and so the law should be a tool for furthering this. Other people believe that people should seek their interest first before considering the interest of other people so the law must be a weapon that ensures this. These two main schools of thought regulate the setting for the development of law in nations around the globe. They influence the development of constitutions and the creation of legislation for nations and communities. These groups are also found in juries around the world that is often made up of adults drawn from the community who examine evidence and instructions and measure liabilities (Smith & Greene, 2005). However, for a long time in the history of English Law, which now influences legal systems around the world, the law was more of a cloak to protect morality in society. In the Shaw Case of 1774, a man who composed and began to publish a magazine that contained the names and addresses of prostitutes was charged on the grounds of conspiring to “corrupt public morals” (Hart, 1963). He was charged for publishing an obscene article, living on the earning of prostitutes and conspiring to corrupt public morals (Hart, 1963). Clearly, these charges were very moral in nature. Eventually, Shaw was found guilty of all these charges and it was established in Common Law that an attempt to corrupt public morals is an offence. However, over the past two hundred years, a lot has changed. These changes are as a result of serious debates and arguments on whether the law should protect morality or honour human rights. Most human rights systems around the world include clauses that ensure: 1. The right to life, liberty and security of person. 2. Right to fair trial in civil and criminal cases 3. The rights to freedom of thought, conscience and religion 4. Prohibitions against torture, inhumane or degrading treatment 5. Prohibitions against discrimination in the enjoyment of human rights of nations (European Network, 1998). Thus a good legal system needs to identify new threats to human rights and dignity and also raise public concerns on human rights. The clash of human rights and morality has caused a lot of changes in the way legal systems act as a hedge against human rights. These have caused so many discussions in areas like homosexuality, euthanasia, abortion, drugs and traffic regulation. Areas of Concerns Euthanasia & Abortion: These are areas that people argue about the right to life of some ‘members’ of the society. The moralists claim that there is little difference between euthanasia/abortion and murder or killing (Baird & Rosenbaum, 1989). This is because the people whose lives are terminated by these practices are members or potential members of the society and the law needs to be extended to protect them from murder. On the other hand, some human rights advocates argue that the wider society should be considered in such a matter. In the case of an abortion, an unborn child, which has no rights under the law can be terminated to enable a struggling mother or couple to lead live as they please and to serve society better. On the other hand, a dying person who cannot be saved by medical science needs to induced to die because it is human for the person to avoid suffering and further pain. Drugs: Some rights activists state that use of drugs is optional. Once an adult is educated about the dangers of the use of drugs, he or she can take a decision on whether to use it or not and thus it is unnecessary for the law to criminalize its use. Moralists however argue that drugs destroy the lives of civilians in society and it is addictive so people hooked on it cannot do much for themselves or the society so awareness is not enough, the law should go further to criminalize the use of drugs so that the society can get the best from its human resource base (Narveson, 1994). Homosexuality and Same Sex Marriage: Moralists say that the idea of two people of the same sex being allowed to move about in society is fundamentally against historic and religious convention and it is a stumbling block to procreation and family life. Some moralists state that homosexuality is a menace that is transferred by older homosexuals to younger boys and men that they sleep with. As such, same sex marriages should not be allowed in nations. Some go to the extent of arguing for the criminalization of these acts. Human rights activists however state that same sex couples are consenting adults who do not disturb the peace of any nation directly and their actions are not different from heterosexual couples in our era. Thus their unions should be recognized as members of the society. Conclusion From the development of legal systems, it is clear that legality has a strong root and basis in morality and governance. Laws can be seen as the crystallisation of morals into ethics that are given punitive values and power. From historic times, it is clear that laws were just methods of safeguarding morality. However, with the advent of human rights and civil compliance, morality has clashed with the basic rights of individuals in society. This has led to on-going debates and arguments about legal positions. Areas of on-going debates include euthanasia/abortion, drugs and homosexuality. 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