Definition: Body of rules enacted by a recognized authority that governs the conduct of the members of a given society, culture, or religion

Type of Ethics: Legal and judicial ethics

Significance: There is no necessary or logical correspondence between secular law and morality, but most societies strive to a greater or lesser extent to craft their laws in such a way as to create such a correspondence. The perception that a law is unjust or immoral may be grounds to disobey that law. The laws of a given religion are generally speaking beyond question by adherents of that religion, although they may be open to interpretation

Law is that which is laid down, ordained, or established. It is a body of rules of action prescribed by a controlling legal authority and having binding legal force. It is a written code of rules that must be obeyed by citizens, or those citizens will be subject to sanctions or legal consequences. Law is a solemn expression of the will of the supreme power of the state. Law is different from ethics. Ethics have been defined by former Supreme Court Justice Potter Stewart as “knowing the difference between what you have a right to do and what is the right thing to do.”

Ethics involve following not only the letter of the law but also its spirit. Ethics are not codified in books. They are that which is moral. Ethics deal not only with conduct but also with motives and character. Ethics constitute a higher standard than that of law; law dictates the minimum standards of behavior required of a person by society, whereas ethics go beyond what is required. Law comes from principles of morality; morality does not descend from law. Morality is that which pertains to character; it governs conduct not by legislative action or by force but by conscience and a desire to adhere to general principles of right conduct. Morality is a strict belief or conviction in the mind that is independent of legal proof or positive law. Law is essential to preserve society; ethics and morality are essential to sustain it at a higher level.

Ethics, Law, and Morality

Ethics are concerned with human values. Often, these values are reflected in jurisprudence and in laws. Legal theory has always concerned itself with morality. Two legal philosophers who wrote a great deal concerning the relationship between law and ethics were Saint Thomas Aquinas, who founded the natural law theory of jurisprudence, and John Austin, who helped establish legal positivism. Theirs are two very different views of law, but both men stressed that law is subject to criticism from a moral point of view, and both believed that there are standards by which it may be properly judged.

Thomas Aquinas, in his Treatise on Law, says that “Law is nothing else than an ordinance of reason for the common good, promulgated by him who has the care of the community.” He views law as something that is established for the good of all. Austin, however, sees the law as a social element that can be used for good or bad, and that can be exploited as a power tool by those in authority. Austin appears to be more realistic in his assessment of the possibility of the use of law by some to suppress others, since history has demonstrated that law is capable of doing good but has great capacity for evil. It can settle disputes and provide security, and it can lead to and enforce slavery.

Law does not necessarily serve the common good and is not necessarily designed to do so. Austin recognizes that law can be good, if it is just and is derived from the laws of nature, as opposed to the laws that are framed by humankind. He says, “unjust human laws are a perversion of the ideal of law, which is given by right reason and the law of nature.”

Thomas Aquinas taught that human laws are just when they serve the common good. Laws that distribute burdens fairly, show no disrespect for God, and do not exceed the lawmaker’s authority are good laws. When laws fail to satisfy these conditions, however, they are unjust. Then, according to Thomas Aquinas, they do not “bind in conscience.” One is morally bound to obey just laws but not unjust laws. Unjust laws should be obeyed only when circumstances warrant it or “in order to avoid scandal or disturbance.”

Human law does not automatically merit respect, and its legitimate claim to obedience depends on moral and ethical considerations that are independent of human law.

The Moral Basis of Law

The role of law in enforcing morality is another ethical dilemma in the relationship between law and ethics. Conduct, the immorality of which involves serious rights violations (such as rape and murder), is obviously a proper object of state regulation and laws. The real conflict between law and ethics, however, involves state regulation of conduct that is not unjust or harmful in the sense of committing serious rights violations, but instead is regarded as immoral by the public, such as laws that prohibit sodomy between private consenting adults or laws criminalizing cohabitation. Should the mere fact that the majority of society’s members and their elected representatives view such conduct as immoral serve as sufficient ground for making such conduct against the law?

Democratic societies such as the United States are supposed to allow the majority to have its way. Sometimes, however, liberty-maximizing societies will not be pure democracies and will place severe limits on the will of the majority in order to protect the rights of the individual, as does the Bill of Rights of the U.S. Constitution. Thus, a full moral discussion of the legitimacy of using the law to regulate private behavior that is judged to be immoral by a majority of citizens will mandate, at the very least, a moral theory of justified state coercion, and a moral theory of basic rights will be accorded to citizens in a just society. John Stuart Mill, in his treatise On Liberty, claims that the only purpose that justifies a society in coercing any of its members is to prevent harm to others.

Law has an interaction with moral opinion. Laws governing sexual conduct and drug usage confront the ethical issues head-on. What are the rights of the individual in relationship to society? What rights may the collective social body claim to the individual? When people form a society, how are the respective rights of both the individual and society at large to be structured? The general consensus is that both the individual and the society at large have rights that each must recognize, yet what those rights are and what boundaries restrict their invocation are matters of continuing struggle.

The struggle expresses itself in a number of ways, the most significant of which is the conflict between the individual conscience and the law. Should morality be legislated and enforced by law? When law and conscience conflict, which one should be obeyed? Laws seem to originate from moral convictions. Since it is morally wrong to take someone else’s life without justification, murder is illegal. It is by no means clear, however, that all moral convictions of a society, even those of a majority in a democracy, should be enforced by judicial sanctions.

Should moral opposition to prostitution and abortion, for example, result in laws prohibiting such activity? Which moral convictions should be incorporated into the legal code? Who decides which moral convictions are allowed to be incorporated into law: judges, the people, or both? Should the law concern itself with traditionally private immorality (such as homosexual acts) unless the behavior is offensive to public order and decency or exposes to the ordinary citizen something that is offensive or injurious? Is an established code of morality essential to preserving social order, even at the expense of private acts? Should individual liberty and personal choice be limited simply by the moral feelings and convictions of others?

Principles of Law and Ethics

Many great legal philosophers have debated these ideas. H. L. A. Hart, professor of jurisprudence at Oxford University, in 1959 published a detailed view of his theory of the relationship of law and morality in his treatise Law, Liberty, and Morality, in which he concluded that there was almost no legitimacy in making certain conduct illegal or criminal unless the conduct was harmful to others. The immorality of an action was not sufficient to make it illegal. Hart believed that “there must be a realm of private morality and immorality which is not the law’s business.”

Several principles are often used in the legal enforcement of morality as justification for limiting the freedom of individuals. There are the “harm” principles, which state, as did John Stuart Mill, that behavior should be prohibited only if it harms someone.

There is the “offense” principle, which states that behavior should be coercively prohibited if it is publicly offensive to others, and there is the “principle of legal moralism,” which holds that behavior should be punished simply because it is immoral. This perception that it is the responsibility of the law to enforce morality is used to justify the regulation of sexual and reproductive conduct, such as homosexuality and abortion.

Joel Feinberg, in his essay “Hard Cases for the Harm Principle” (1973), holds that in order to characterize the kind of behavior that society is justified in controlling, the harm principle must be supplemented with a carefully drafted version of the offense principle.

There is a conflict between the individual conscience and the law. If one person believes that abortions are always morally wrong, but the law permits abortions under any circumstance, should that person attempt to prohibit women from obtaining legally permissible abortions? When the conscience and the law conflict, which takes priority? Conscience is an individual’s convictions regarding what actions are right and wrong, morally good or bad. When a person’s moral convictions lead him or her to object to abortion, or to a particular military position taken by the country, that person is also opposed to legal sanctions of abortion or that military position. A law is a rule of conduct prescribed by a properly constituted governing authority, enforced by sanctions, and justified by a mandate to legislate for the public benefit. A law is a rule of conduct that is “on the books.”

Given these principles of conscience and law, a fundamental question arises. When a person is morally convinced that he or she ought to do one thing, yet a legally constituted authority directs otherwise, what is that person to do when the two courses of action are at odds with each other? People faced with these choices can obey the law; follow their consciences and suffer the legal consequences because they conflict with the law; or follow neither of the previous choices, thus choosing to obey the law or follow personal conscience as the particular circumstances require. The third alternative seems to require specifying principles in terms of which the decision is made in any given instance to obey the law or follow one’s conscience.

Another set of moral questions about the law is derived from the realization that law is not only a set of rules used to govern society but also a profession. Lawyers, people trained in the law who give legal advice and assistance in legal matters, have certain responsibilities as advocates that may at least appear to conflict with larger responsibilities as a whole. For example, if a defense lawyer makes the best defense for his client and obtains freedom for him, even when he is both guilty and a danger to society, the ethical question is whether this is morally justifiable. As the defendant’s advocate, the lawyer must work for the client’s best interests. As a citizen, however, does the lawyer not owe the best interests of society concern and attention as well? Some people would argue that it is the job of the adversary system to aim at justice and the common good, and that the lawyer’s job is merely to play a part in the system, aiming not at justice but rather at vigorous advocacy of the side to which the lawyer has been assigned. Is this a valid moral defense or simply a retreat from social responsibility?

Concepts of Jurisprudence

Several different philosophies guide the rule of law as interpreted by the judiciary system, as opposed to the laws that are created by legislatures and elected officials. These are the patterns of jurisprudence, or legal reasoning, which create legal standards of behavior that are as important as the statutes themselves, because they set precedents for others to follow in the enforcement of the law.

There are legal philosophers who are deeply skeptical of both doctrinal analysis and moral evaluation of the law, who see those approaches to law as so infected by prejudices in the status quo as to make them little more than covert political activity. These writers often follow the lead of “legal realism,” which can be defined as the idea that law is simply a prediction of what the courts will decide, and suggest bringing such advocacy into the open and accepting an overtly political conception of the courts and the law, law being simply the exercise of power. The jurisprudential movement known as the “economic analysis of law,” which encourages judges to decide cases in such a way as to ensure that economic freedom and wealth are protected and expanded, is a free-market version of the realist philosophy.

“Critical legal study,” which advocates interpreting the law in ways that will assist the disadvantaged and exploited, is a socialist version of the same perspective. None of these versions, however, can exist without moral values and moral theory, because it is impossible to justify the importance of caring about whether a person has been exploited or oppressed unless moral values and moral theory have been imposed. After all, exploitation is simply a kind of unjust treatment. Thus, it appears that normative jurisprudence, the moral evaluation of law and the legal profession, will have important tasks to perform as long as human beings seek to regulate their conduct through the use of law. Normative jurisprudence deals with the appraisal of law and the moral issues that law generates. Human law can be made and changed by deliberate decisions. What direction should those decisions take?

Law claims the authority to lay down rules and enforce them. Are its claims warranted? Can people legitimately refuse to comply? Things are done in the name of the law that are not normally justifiable; people interfere in other people’s lives, depriving them of goods, liberty, even life itself. How, if at all, can these practices be defended? “Analytical jurisprudence” is the form of jurisprudence that questions the fundamental nature of law. What is law? How is it part of a system? How can a decision be made according to the law when the law is unclear? How is the law like or unlike moral standards? Analytical and normative questions concerning law are closely related.

Law and Morality

The law speaks of rights and responsibilities; duties and obligations; fairness, justice, and justification: Does this mean that the law inevitably contains or satisfies moral standards? Ideas about the essential nature of law have emphasized either its connections with or its separation from morality: Which view is right? Law is a social fact. Laws are commands. By its very nature, however, law is connected with morality. There are legal obligations that are moral obligations, but not all moral obligations are legal obligations, and the constant ethical struggle and changes in the law represent attempts to determine which obligations should be legal obligations and should be sanctioned by law enforcement and the courts. Are there proper limits to the reach of the law? Are there areas of human conduct that are, in principle, properly beyond legal sanction? Is there a point at which it is correct to say that, notwithstanding the morality and the social preferences and spiritual values and the sensibilities of the public, the suppression of certain actions by law is not the business of the government and must be left up to each individual to determine what is moral and ethical conduct?

From time to time, the facts of a particular legal case raise issues that force people to go beyond precedent, beyond statute, and even beyond the task of constitutional interpretation. The facts of a case may take one to that area where law and philosophy intersect, where one finds lawyers thinking like philosophers and philosophers reasoning like lawyers. As the ethical issues and underlying principles that form American law and jurisprudence evolve, it becomes ever clearer that these cases play a very important role in what American society is to be and what values and standards of conduct it will set for its citizens.

In trying to answer such difficult questions, the profession of law and the discipline of philosophy have much to offer each other as they combine to form and reflect the ethical, legal, and economic standards of American society.

Further Reading

See also: Adversary system; Conscience; Due process; Hammurabi’s code; Hart, H. L. A.; Jurisprudence; Legal ethics; Morality; Punishment.