Distinction Between Law And Morality

In August 2015, the case Miller V Davis brought to light the complicated relationship between law and morality. Indeed, Mrs Davis a county clerk in Rowan county (Kentucky), is being sued for not delivering marriage licences to same sex couples as she believes that homosexuality is morally wrong. Thus, despite the fact that same-sex marriage has been made legal by the U.S Supreme Court since June 2015. Ought individuals to apply the law though it is in inadequacy with their moral beliefs? Do the law should be totally free from any moral influence? Many legal scholars have argued on these questions, as well as trying to define the terms “law” and “morality”. While no one has agreed to a universal definition, law can be defined as a “body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects”. On the other hand, morality is referred to as an “ethical wisdom” , the set of common values unifying a society. This essay will discuss the role of morality in the law, while analysing different legal school of thoughts arguing on the topic. First of all, positivists such as Bentham, Austin and Hart, argued that morality should not interfere with the law as it is created by a legitimate authority. On the other hand, naturalist theorists, such as Aristotle, Fuller and Dworkin, believed in the existence of a “higher law”, highly influenced by morals, has to be integrated in a legal system

Since the spoken word, hundreds of philosophers have defined law in different ways. Philosophy allows people to study the nature of people’s beliefs which can differ over time. Not even laws are exempt from the opinions of philosophers. Seeing law in different ways allows people to come to different conclusions about legal cases. The Fugitive Slave Law was a controversial law in American history which allowed slave-owners to capture their slaves who have fled north to free states. Once, a group of emancipators in Boston were tried for helping an escaped slave flee to Canada. These emancipators challenged the Fugitive Slave Law in United States v Morris. According to the Fugitive Slave Law, helping an escaped slave is in violation of the law. In this case, the jurors let the emancipators free for helping a slave escape slavery to Canada. This leads to the question “Did the jurors in Morris do the right thing?” Philosophy gives us the tools to analyze the legality of the juror 's actions and answer this question. Natural Law theory, Positivism, Legal Realism, Neo-natural law theory, and Paul Butler’s theory of law all provide different outlooks to answering this question. Despite having differing beliefs about the role of morality and law, these philosophies all conclude that the jurors in Morris did the right thing.

In Law and Morality by Andrew Ilyes, the definition, theories, and numerous factors that relate to the legislation of morality are discussed. It

In this paper, I will argue that morality lies with and within the individual, thus no law or laws can determine what is inherent to a person’s true nature. The law is to be unbiased and or blind and should never consider individual morality when casting a judgement. Individual morality would require everyone to maintain the same moral code which cannot be legally enforced and would create a circular reasoning of which no society could not escape. Maintaining the same moral code would deny freewill. Therefore, a judge could not deny Elmer Palmer his inheritance because he would be making a decision based on his/her moral beliefs.

Many people would be said to disagree with law makers having a moral agenda as it may infer with what needs to be the law. In order to understand whether lawmakers should have a moral agenda it must be understood what the law is and who can make it. Law can defined as ‘a body of rules that a country makes, and it is applied by the state’ , law can be made by two different bodies in the United Kingdom which include the Judicial system and the Parliament. Now that we understand what is the law and how it works morality can be tackled. Morality can be defined as “a particular system of values and principles of conduct”. This essay will discuss how different people have different views on morals and give examples on widely debated topics of morality in reference to Abortion and Assisted Dying and how they affect law making decisions.

The contrast between Natural Law and Legal Positivism is a necessary starting point for those who wish to understand the relationship between law and morality, and the most varied manners in which it influences society to this day. When it comes to analyzing which theory offers the most well-rounded idea of law, one can argue that Legal Positivism provides the best definition of what law is at its essence. However, because Legal Positivism came to exist as a critique to what was proposed by Natural Law theorists, it is significant that both are explored in depth as means to support such argument.

Bastiat wrote the law in 1850, just prior his death from tuberculosis, the key theme of this book is an examination of what happens when the law becomes a weapon of those in power, rather than a tool to protect the rights and freedoms of individuals, Bastiat put forth a negative conception of law, for Bastiat the law was a tool to help prevent certain actions; actions which harmed others, or their property.

Law and morality work together to guide our behavior; while law does it by punishing us if we do something wrong, morality does it through incentives. In their articles, both H.L.A Hart in “Positivism and the Separation of Law and Morals,” and Lon Fuller’s reply to professor Hart in “Positivism and Fidelity to Law,” discuss the concept of law post world war II Germany and their re-imagining of natural law as put forth by Gustav Radbruch’s theory. In this paper, I hope to show how both law and morality is needed to create just rules, more specifically drawing from the “grudge informer” case mentioned in Hart’s article. First, I will explain the dilemma of the “grudge informer” case and the contradicting theory laid down by Radbrunch’s.

In book one C.S. Lewis talks about the Law of Human Nature, Moral Law, and the Rule of Decent Behavior. He says that as humans we expect everyone to behave a certain way, to a set standard. Yet when called out on our behavior we come up with a hundred excuses as to why we acted a certain way. We expect everyone around us to have decent behavior but we don’t hold ourselves to that same level. One of the things that struck me was when he said, “ If we do not believe in decent behavior, why should we be so quick to make excuses for not having behaved decently.” As a society we expect every man and women to live up to this standard of behavior. With Moral Law he talks about the herd instinct, which by definition means a situation in which people act like everyone

I this paper I shall agree with Mill that we should reject legal moralism. I will start with the summary of legal moralism, then I will continue with a small concept of the Devlin and Mill debate about legal moralism. Then I will move onto my critique, in which I will agree with Mill, that we should reject legal moralism. I will start with simple definition in order to understand the concept, then I will move on to the pros of legal moralism according to Devlin, then I will end with why we should reject legal moralism.

This paper will demonstrate how Hart’s account of the relationship between law and morality shows an understanding of how they both work together yet can also work as separate entities. It will take a specific look into the internal point of view to aid the understanding of why

• The existence of these laws presupposes the existence of a law-giver and an agent to help us achieve what we cannot achieve on our own in this world : the exact coincidence of happiness and morality,

This article discusses the conceptions of legal normativity, both moral and “strictly legal” conceptions. According to Spaak, regarding the normative force of legal justification, legal positivists can still embrace the moral idea and not be in conflict with their generally held belief in the “strictly legal” concept of law. In Torben Spaak’s opinion, there is a reason to desire legal positivism; he explains this through introducing the concept of jurisprudence. When discussing the nature of law, Spaak states, “that while the moral conception is what is likely favored on a smaller scale, the strictly legal conception is more appealing because it is broader,” (478). Spaak is arguing, his belief that “validity-based explanations come nearer to the truth,”(483) rather than belief-based explanations. He concludes that we are to prefer legal positivism over natural law theory. “That is why in this article I have been concerned with the law itself rather than our views about it.”(483)

Freedom and morality is connected to each other. We have freedom to do things and to decide things for ourselves. But morality teaches us to choose from the right and the wrong behavior. Morality is concerned about the values, conducts, and principles of a certain person while freedom is being able to make your own decisions and getting it done. These two have a big relationship with each other because they must be given importance in our lives. What is the deeper relationship between freedom and morality? And what can be done to have them both?

This essay is compiled to review and apply Ronald Dworkin (Dworkin) theory and how his theory was incorporated to assist in constructing laws. In light of Dworkin’s theory, significant areas such as moral principles, legal principles, rights and rules will be explore to understand the influence that these attributes had, in essence of creating laws.