Relationship between Legal and Moral Obligations - Essay Example

Relationship between Legal and Moral Obligations Morality obligation is the standard behaviour used by a societyand it’s binding on the conscience of the members of that society and it is not enforced by courts of law. Legal obligation according to Hart, is a coercive instrument for regulating social behaviour, enforceable and have sanctions by the court of law. Legal obligations should be enforced and incorporate a significant proportion of morality and therefore morality here is considered as a rule of law like an act of rape is immoral as well as a crime (Petrażycki, 2011). However, some wrongs in the society contradict morality, but not the law like failure to provide for the parents. In addition, the existence of unjust laws such as legalizing abortions contravenes legal obligation from moral obligation. People follow legal obligation at least through fear of punishment while moral obligation is a habit formed from conscience. According to Preyer, positivists insist that law is manmade and requires an organization that regulates the laws and until the laws are changed, the positivists say that they should be obeyed (Preyer, 2011). Natural law thinkers define law in a moral load. They argue that there is no need to obey the law if it is not moral by appealing to moral and religious principles. Coleman argued that the criteria for legal validity in any legal system do not require a moral test. He said that maintaining the contingency of the role of moral tests as a criteria for legal validity is affirming the separation of law and morality. Hart is perceived to be a positivist and claims that law is a set of posits from a recognized authority. These posit are morally informed, but are not connected to their moral characteristics. He differs from arguments like law was a set of general orders backed by threats as said by Austin (Col,P24). Hart believes that,” laws without sanctions are perfectly conceivable”. He differentiates having an obligation from being obliged. Being obliged is a state of legal obligation that requires one to do an act due to fear of being punished while having an obligation is a moral obligation that requires one to do something authorized by a set of norms. Therefore, he argues that moral obligation can work without legal obligation. Hart perceives the core to science of jurisprudence to be the relationship between primary and secondary rules. Primary rules describe behaviour while the secondary rules show the power where the primary rules may be applied, modified or recognized (Grabill, 2006). He also argues that the grand recognition rule of a legal system is that offers the systematic path to be followed in validating the other rules for them to be considered legal (Michigan law review vol.73:443, pg 446). He also argued by favouring the moral values by saying that the law has no inherent moral value because neither law takes an act in any political issues nor is it committed to any political or moral evaluation. He argued that when one is confronted by a bad law, it takes one’s conscience to decide without a second thought, that there is a connection between law and morality. He applied Bentham’s thought that there some laws which might be too evil to be obeyed meaning that morality and legal issues can work on their own separately, one without the other. He distinguishes social rules of morality from the genera social rules so as to define moral obligations. He outlines three key criteria to be met by the social rule that is: Must be of great importance to the group upholding them. Should be immune from deliberate change, unlike the legal rules. Are supported by a characteristic form of moral pressure relying on key reminders of what the rule requires and appeals to conscience. Law and morality are separate he claims that some legal systems constitutes of much moral aspects and their legal aspects no longer hold. He compares between two aspects: amorality of duty and morality of aspiration. A morality of duty is the commands that dictate what a man is right to do or not doing while a morality of aspiration refers to the morality of excellence. Morality of aspiration may override the legal aspects of a duty, for example, if a clerk is slow at typing in a meeting, they can be condemned for failure but not for wrongdoing (Sheppard, 2009). However, for the law to be loyal there must be some moral quality in it according to Fuller. This shows that moral and legal obligations are dependent. He argues that there are a number of ways which morality can do on its own through the following ways When failure is deep – he explained this by giving an analogy of king Rex,”Rex came to the throne with the zeal of a reform. Unfortunately, trained as a lonely prince his education had been very defective.”(Murphy, 2011). Murphy’s failure can be attributed to lack of incorporating the eight desiderata of law which are There must be rules, which are Published Prospective prudent Not contradicting Compliable Stable Observed by officials He claimed that if a legal system like Rex law did fail then a legal system on that trend also fails. He also emphasizes on the point that application of every desideratum is important since they relate on some various aspects and failure on one would mean failure on another. Fuller also tries to differentiate between external and internal morality and says that an internal morality does not necessarily suggest whether the law at hand is just. He says that at least the internal morality describes the characteristic a law must have to be valid therefore; morality obligation can be independent without the legal obligation. Debate over the Wolfenden Report about the report of the committee on homosexual offences, and prostitution (Marmor, 2011), he denies that crime and sin are related therefore assumes that there is no justification for the law to interfere with the private life of people. This differentiates legal obligation from moral obligation. Devlin outlined some guidelines on moral and legal obligations such as Privacy should be respected. Laws should only apply when the moral judgments fail. Devlin says that,” law without morality destroys freedom of conscience and is the paved road to tyranny”. He argues that laws are established to maintain morality of a society by protecting against the factors that cause moral decay in a society. Devlin also argues that immorality is what every right-minded person considers immoral and all acts in the society are subject to the law. Hart tries to show the independence of legal and moral obligations as he is more concerned on the humanitarian rights (Perreau-Saussine & Murphy, 2009). Hart argues that the conventional morality of a few individuals in a society should not be a justification for hindering people to do what they want. This is based on the fact that most people’s views are based on superstition. He also argued that societies survive changes in a basic moral view rather than legal views. He says that if changes occur in a society, it doesn’t mean that the society has been replaced by another. Comparing Devline and Hart, Devline aspect brings about totalitarianism, undermines the sense of true human rights and encourages unjust laws against human beings. Hart is seen to be advocating for moral justice in the society rather than the legal by distinguishing the moral obligations from legal obligations. Catholic moralist were against legal obligations by supporting moral law. They were against the legal law limiting and imposing itself with the force of obligation on freedom. He argued that freedom and law acted as two rivals as far as human actions are concerned. The moralists wanted to apply the moral law rather than legal laws, to run their societies. For instance, Catholic moralists walk around the streets protesting against social life of their priests (marriage issues) therefore exercising their legal justice against the moral rights. Morality can be able to regulate the conscience of a person which law cannot but it’s the business of the law to judge the actions of an individual (Conference On Natural Law & González, 2008). According to Hobbes, human beings are self-interested and that leads to conflict. Everyone seeks for their own comfort despite the situation at hand, for example where there is war in a state, but a moral obligation dictates that they find peace. This way morality overrides the legal obligations. Anarchy is a state of government where there is no recognized authority like in the case where there is a state crisis and different groups are scrambling for power (Marshall, 2009). Here, the moral obligation prominent as the legal justice is no longer functioning. Where natural law exists, legal obligation is not considered much (Keown & George, 2013). According to St Thomas Aquinas, natural law is a law that comes from the inner nature of a man. This law regulates the relation of people in a society. People follow them because of fear to breach the norms could lead to condemnation by the society. Consider a case of Miss (B 2002) who was suffering from terminal illness and was receiving a medical treatment to keep her alive the high court decided that she had the right to refuse to continue undergoing medication; this was allowed as it led to passive euthanasia, which is legally acceptable but morally wrong. Another case of the Siamese twins, Mary and Jodie, who had their major organs conjoined and the operation to separate them could have led to death of one of them, their parents were against the operation since it is morally wrong but the court intervened and allowed proceeding with the operation leading to death of one of the twins. In this case, the medical opinion was favoured in place of moral beliefs. Analysis of the two cases shows that the legal obligation overrode the moral obligations. Making laws and enforcing them made requires special legal units to be implemented for instance the judiciary and the armed forces. This ensures that the constitutional rights are observed in a state. On the other hand, morals comes from the inner part of an individual that by talks become the virtues of a society and it takes an individual’s conscience to be morally upright and to observe the moral values considered in that society (Black, 2012). This shows that moral obligations are independent of the legal obligations as they have separate modes of execution. Legal disputes are solved in a court of law where the judicial panel is involved in decision making which sometimes involves breaching of the moral obligations like in the case where corruption dictates the judgment (like bribing the jury to cover up a case) (Evans, 2013). We can also view the measures taken to suppress the vices in a society to be related to the penalties resulting from law breaking where both are preservative measures. The former represents preserving moral codes of the society and the latter for preserving the law and order in a society (Canale & Tuzet, 2013). This shows that legal obligations and moral obligations can be independent of each other. Morals can be converted into laws, but laws cannot be converted into morals (Finnis, 2011). For instance, death penalty is legally right in some countries, but it is morally wrong according to the norms of a society. Female Genital Mutilation is morally wrong in some countries and has been proved by many countries to be a law. Where morals have become laws, there is definitely collaboration for the legal and moral obligation. For instance, rape has been viewed to be immoral as well as illegal. Judgment on the verdicts can be passed from both perspectives. Moral judgment can include alienation or even expulsion of such people from the society as a punishment. Legal penalties include fines and jail terms or both. This means that legal obligations and moral obligations can be used differently and work without each other. Laws regulate the relation of men with others and with the society while morality governs the inner life of individuals in a society (Wolterstorff, 2008). For example, laws are used to settle land disputes and conflicts while morals are used to govern the directives to be followed in making the decisions on moral rights. This shows that legal and moral obligation can occur independently. According to sharia laws used by Islamic states that if a woman is caught in adultery, she is stoned to death, which is perceived to be both legally right in Islamic and morally wrong in other religions like Christianity (Linarelli, 2013). It is morally wrong to kill according to an individual’s believe irrespective of the religion. In such a situation, moral obligation overrides the legal obligation. According to Ashcroft, law regulates and controls the external human conduct and it is not concerned with the inner matter of human beings (Ashcroft, 2007). This means that it cannot be used to solve internal disputes between people. Taking an instance, when one borrows a loan from any financial institution with a repayment period of two years, it’s the line duty to pay back the loan as agreed as it has legal strings attached to it failed to pay leads to legal actions taken against them like auctioning the lone property signed during the agreement (Tremmel, 2006). This may be seen as an immoral act of the bank by the society. In a case where one borrows money from a friend and to which no legal obligations are attached, if the client fails to pay the loan in time a moral action may be taken to settle the dispute by involving a third party to mediate between the conflicting parties. However, not all aspects of law and morality can do without each other. Laws are a universal set of rules in a given society and demand a total subjection to its rule and commands where every outlined law requires to be fully executed in the specified method (Grabowski, 2013). No human being in a society is above the law and therefore, it applies to them all. Morality on the other hand is a variable that changes from man to man and from age to age, hence it cannot be applied to all aspects of life in a given society making it a need for the application of legal obligations to be applied. According to Gardner, Hart rejected the separation thesis of law and morality in his manifesto of 1958. By claiming that, “every law necessarily shows a redeeming moral merit, a dash of justice that comes of the mere fact that would have case treated alike.” Soper believes that every legal system presents itself as a morally legitimate with morally correct mandates. The mandate shows a necessary connection between law and morals. He says that nothing can count as genuine as a legal system unless it surpasses some modest threshold of moral acceptability. References ASHCROFT, R. E. (2007). Principles of health care ethics. Chichester, West Sussex, England, John Wiley & Sons. 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