Oliver Wendell Holmes's Relationship With Morality

Philosophical thought provides the infrastructure that allows society to author moral laws. While morality may be the aim, other variables can cause these laws to become corrupt. The urge for power is one of many, recurring, variables that infect morality. During these times of ‘infection,’ society must contest those who oppose just laws. In order to shine a light on unjust laws, laws are bound to be broken. It is not only lawful to break unjust laws, but the duty of the people to speak up and be a voice for change. It is critical, during these times, to work towards equilibrium with the goal to change the law. Regardless of the circumstances, it is lawful to break unjust laws with the goal to make them just again.

“I was born with the devil in me. I could not help the fact that I was a murderer, no more than the poet can help the inspiration to sing.” This quote was in the confession of Dr. H.H. Holmes when he was caught in 1896. These words are very chilling due to the fact that this man is believed to had killed up to 200 people and not only thinks that he couldn’t help himself but in some ways compares himself to an artist. Holmes’ gruesome murders still inspire ideas in modern day society, such as T.V. shows like American Horror Story. It could be argued that his influence on society would be same as if he were still alive for generations to come. A human monster is a person that is not congenial with the common populace and Holmes is one of the very first recorded in American History. Herman Webster Mudgett, later known as H.H. Holmes, is a human monster created of both nature and nurture, like the fictional character named James March, and all of Holmes’ victims were subjected to the fear of death as they were usually tortured before they were killed.

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

He believed that in order to understand law, one must first realize what law’s purpose is. He, like Thomas, argued that law’s purpose it to benefit society by creating a morally sound order to human action and conduct. He detailed seven goods that he believed to be intrinsic and universal, and argued that laws should be enforced under the stipulation that they adhere to the enhancement of these goods, because they are what determines a fulfilling life. They are: life, knowledge, play, aesthetic experience, sociability, practical reasonableness, and religion. The goods that relate to the thesis of this paper the most are knowledge and sociability, as the result of the case has a direct benefit on them and is, therefore, moral and legitimate. Legal positivists, however, disagree that morality has any place in determining what legitimate law is.

In the 1907 Patterson case, Justice Oliver Wendell Holmes declared that he First Amendment and any similar laws “prevent all such previous restraints upon publications… and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.” Holmes later recognized error in his interpretation of the First Amendment by stating in 1919 that “the prohibition of laws abridging the freedom of speech [and press] is not confined to previous restraints.” Holmes reinterpreted the First Amendment, and soon after, another case arrived in the Supreme Court for Justice Holmes to vote in defense of a more comprehensive freedom of the press.

Oliver Wendell Holmes, Jr. once stated, “The life of the law has not been logic; it has been experience” (Holmes). In making this comment, Mr. Holmes an American jurist who served as an Associate Justice of the Supreme Court believed that logic should not be the only particular way of understanding a system of rules, but by the influence of one’s knowledge and legal skepticism toward the law. Similarly, proponent’s of legal realism, which is a naturalistic approach to law that focuses on predicting what judges actually do in deciding cases felt the same way as Oliver. On the other hand, supporters of formalism insisted that the law and legal reasoning should determine all adjudications based on objective facts, unambiguous rules, and logic.

This reading presents questions around what role the law has, or should have, in defining religion. In the case of Sasnett v Sullivan, it is shown that in the legal setting, people feel as though they need to have a set definition of religion and its prescribed practices. This idea is significant, as we need to ask whether it is right for the law to have any part in determining religion, or whether it should be up to individuals.

St. Thomas Aquinas argues that an “an unjust law is no law at all.” (Aquinas in Dimock, ed., 2002, p.19) However, Aquinas also acknowledges that a human lawgiver may promulgate a command that has the form of law, and is enforced like a law, yet is unjust. This observation leads to the realization that these are two inconsistent claims. Yet Aquinas believes that these inconstancies can be reconciled. In Aquinas’ view an unjust law is not a law but yet is also able to be issued as law and imposed as law.

However, to critique Holmes’s stand, one may say that a law needs to be uniform so

Wonderful, short, summary of the views applicable to this case, and the defense for the view that you hold most. However, I believe that there is more to the Christian-principle based view of ethics, than what you give credit for. According to Arthur F. Holmes’ book, Ethics: Approaching Moral Decisions, one would find that the Christian view holds four tenants, or ideas, to shape the understanding of ethics, in which these views are: cases, area rules (moral rules), principles, bases (theological and philosophical). Thereby, one must go through these four sets of criteria to figure out if an action is right or if it is wrong. Following this line of logic, and if one were to look in the Bible for the answers, one would find torture is not right.

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.

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 Hart’s eyes, though there may be a congruence between law and morality, it is by no means a necessary connection. (Hart, DATE)

I agree mostly with what Ronald Dworkin is quoted as stating in this article. His opinion of the “moral conception of law’s normativity”(479) is what

A central belief of the liberal atmosphere on which western legal systems are fundamentally based is that of negative freedom, to do as one wills, provided that it causes no harm to others. But a question which goes to the heart of the ethics of allowing total individual freedom with minimal intervention from society can be characterized like so; where to draw the line between freedom and condemnation?  When is interference with individuals and their private morality justified? The harm principle, which seeks to introduce personal liberty and its coexistence with society, appears in John Stuart Mill's “On Liberty”, first published in 1859. However, the idea is not black and white - the harm principle can be criticized for its excessive paternalism, lack of clarity, and incomplete handling of certain situations. In this essay, I will argue that Mill thoroughly justifies his theory for the harm principle. To make this argument, I will examine the harm principle, evaluate possible counterarguments, then apply the Harm Principle to a real-life scenario.