Is the law inextricably bound with morality?
Daniel Junsang Park
It is often taken for granted that one ‘ought to’ obey the law, on the basis of some underlying moral principle – and the same goes for whether a law is ‘valid’ or not. Philosop hers have attempted for centuries to provide a clear jurisprudential theory on what constitutes such concepts of legal validity and of obligation, andmany of the traditional theories explained such concepts in relation tomoral and political theories (i.e. natural law). On the other hand, many modern philosophers have abandoned the classic view that morality and law are perpetually intertwined, instead advocating the positivist argument that law and morality are distinct concepts which do not necessitate each other. Yet the inherent normativity of concepts like ‘obligation’ and ‘standards’ cause doubt as to whether such a stance is possible, or whether moral considerations are indeed a part of law’s nature. The jurisprudential debate on the nature of law begins with the classic natural law theorists, who sought to delineate an overlap between morality and law. Such theories generally stemmed from Aristotelian political and moral philosophy, where the nature of law is a question of how the law acts as a cause or condition of a flourishing society. Aristotle sought to understand what is good for human beings, and what counts as human flourishing – and in traditional virtue ethics, he concluded that to be the fulfilment of an individual’s function within the mec hanisms of society, and the cultivation of certain virtues of excellence ( arete ) in one’s character. Such human ‘goods’ can therefore only be realized in a community or society of humans. Given that a community requires some coordination of human conduct, however, it is necessary to have laws that are established and enforced by authority; ultimately, then, he argues that the law must serve the common good. Similarly, Thomas Aquinas grounded his theory of natural law on precepts of ‘eternal law’; law that g overns the behaviour of all beings possessing reason and free will, especially the primary imperative to do good and avoid evil. Aquinas argued that the universality and objectivity of natural law, having been dictated by God himself, establishes its superiority over human law – therefore, as elaborated later by William Blackstone, there can be no legally valid standards that conflict with natural law, and all ‘valid’ human laws derive their coercive power and authority from the natural law itself. Though they do not deny the extent of human discretion involved in creating law, they argue that such discretion is necessarily limited by moral principles and norms, and thus valid human laws are by extension required to be consistent with morality. Ultimately, classic natural law theorists agree that the law necessarily entails from certain moral principles and considerations preceding it.
However, the rise in popularity of Hobbesian social contract theory during post-Reformation Europe brought doubt to the integrity of traditional conceptual naturalism.
A growing distinction was created between the realm of ethics (virtue, excellence and ‘good’) and the juridical realm (of justice and rights), and Thomas Hobbes’ contractarian theory demonstrated this separation - by avoiding a reliance on some shared notion of ‘excellence’ or the ‘good’, which he argued could not provide a satisfactory account of political authority. Hobbes argued that people in their ‘state of nature’ would be driven purely by primitive and aso cial self-interest – a state lacking any sovereign leadership or civil society. Regarding rights in particular, he believed that everybody in the state of
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