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Morality and Rights - Essay Example

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Sometimes it looks as though there is no distinction between law and morality, because a moral person/society has to be good, law-abiding and ancient Greek writers vouch for that. Looked at it minutely, there exists a sea of difference between the two, because though morality has formed the base of law, it has not remained so in modern times…
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148908 Sometimes it looks as though there is no distinction between law and morality, because a moral person/society has to be good, law-abiding and ancient Greek writers vouch for that. Looked at it minutely, there exists a sea of difference between the two, because though morality has formed the base of law, it has not remained so in modern times. On the question if law should enforce morality depending entirely on moral values could be tricky and to some extent, yes, but to a large extent, no. In modern society, law cannot do moral policing, because morality changes from time to time. What was moral 2000 years ago need not be moral today1 because then individuality was powerless.

"That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant," Dworkin (1994, p.9).
Over centuries, morality had been mercurial, while Law was not, though there is a constant need to adapt to changing social requirements. Killing troublemakers and animals was moral at one point and not so now. Today, recreational drugs, homosexuality, prostitution etc. are legally accepted.
"To grasp fully where law and morality meet, one must also grasp where they remain divergent. ..Of greatest interest in that theoretical endeavour, of course, is the matter of pinning down whether and how moral principles can enter into those processes. Only by adequately addressing themselves to that matter can positivists come up with satisfactorily precise analyses of the workings of legal systems," Kramer (2004, p.11).
Morality is interpreted by religions in contradictorily and what is right for one need not be so for another. In multicultural societies this could be difficult to be enforced. It is highly contentious for law to depend on moral values alone, because the question arises, which moral values. If majority religion/moral values are accepted, it could leave minorities in a lurch. These problems are best left for libertarians and moral policemen in society, while Law remains secular. In some countries law is enforced religion-wise, and it could have a very negative effect of segregating and alienating communities from one another. Legal remedy for not practicing morality and impeding another individual's rights is sufficient to bring a rule of law. It should never go to the length of curbing personal choice and freedom; but this argument is never fully accepted2.

Also there is no evidence that a so-called 'immorality' would ruin the society, as always commonly feared3 and here, Lord Delvin's views4 were questioned. This leads to the question if law should enforce cultural choices and if it does, it will end up in a maze by killing diversity and freedom of expression and infringing natural rights. If law takes morality as its only basis, disregarding rights, popular values and discretion, it can lead to rigidity (fiat justicia, ruat caelum: let justice prevail though the heavens fall!) and can result in miscarriage of justice.
"Such incompensatable miscarriages, as we all know, have occurred, and have resulted in what is perhaps the most sombre and appalling of all acts which the executive may be obliged to perform - the bestowing of that ultimate mockery the 'posthumous pardon'," Stewart (1983, p.431).
This could be an unending debate, as Law cannot be totally divorced from morality and morality cannot exist without legal enforcement. But Law completely being based on morality alone or enforcing morality in society could be digressive.
BIBLIOGRAPHY:
1. Dwirkin, Gerald (1994), Morality, Harm and the Law, Westview Press, Oxford.
2. Kramer, Matthew H. (2004), Where Law and Morality Meet, Oxford University Press.
3. Stewart, M.A.(1984), Law, Morality and Rights, D. Reidel Publishing Company, Lancaster.
ONLINE SOURCES:
1. http://www.holisticpolitics.org/Morality/PageOne.php
2. http://www.ibiblio.org/gaylaw/issue6/sylla.htm
3. http://www.phil.tcu.edu/readings/devlin.doc
4. Read More
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