Value of Morality in Theories of Law, Justice and Rights - Essay Example

For any theory of law, justice or rights to be worthy of our support, it must involve a necessary connection with morality. To what extent, if at all, do you agree with this view? Table of contents 1. Introduction 2. Morality – overview 2.1 The role of morality in law 2.2 Value of morality in theories of law, justice and rights 3. Benefits and disadvantages of the subject under examination – contribution to the improvement of the existing legal system. 4. Personal view on the value of morality in law 5. Conclusion References 1. Introduction The introduction of legal rules in societies has been based on the need for regulating the various human activities in a way that equality is enhanced; through the decades, it has become clear that law cannot be adapted to all aspects of human life mostly because the needs of people and social systems tend to be differentiated in accordance with the local social ethics and culture. On the other hand, it has been proved that people are likely to doubt in regard to the necessity of certain legal rules; for this reason, the justification of laws has become crucial – referring to the fact that the reasons for the introduction of specific legal rules need to be clearly explained to the members of the society in which these rules involved; in practice, this policy is not always applied; instead, laws are developed in accordance with the personal perceptions of legislators. Under these terms, the obligations and the rights set by the laws in the context of a specific state could be doubted as of their credibility; however, there is a series of principles and concepts that are commonly used as the basis for the development of legal rules and the application of which ensures the respect of fundamental human rights and concerns; morality is one of these concepts; the role of morality in the development of various social and political schemes has been proved as quite important; in fact, morality has been employed in many social theories in order to justify the suggestions made for a series of social and political problems; moreover, the existence of morality in social theories increases the chances for the acceptance of these theories by the members of a specific society – or people in the international community. Current paper focuses on the examination of the potential connection between morality and the theory of law, justice and rights; the views of theorists that have studied the specific subject have been used in order to identify and evaluate the various aspects of connection between morality and the theory of law, justice and rights; it is proved that this relationship exists but it is likely to be differentiated in accordance with the social conditions to which each of these theories refer. Generally, social theories that refer to morality have a similar point of reference: the willingness of people for supporting the justice; however, this willingness is not always obvious; it can be expressed through a series of actions or it can be expressed verbally; in any case, this willingness exist – referring to the highest percentage of people in a particular society. It is for this reason that morality has been found to play a crucial rule in social and legal thinking. In the above context, it is concluded that morality should be an important criterion for supporting a specific theory of law; also the support towards the justice and the rights would be also based on their dependency on morality; the reasons of this assumption are analytically explained in the study. In its general context, the above justification is based on the fact that law and justice have been developed in order to ensure the peace and the equality in all aspects of human activities; in this view, law and justice need to be moral; their potential opposition with morality could lead to the termination of their role as guardians of the social peace and order. 2. Morality – overview Morality is a concept extensively used in the theoretical justification of policies and theories related with various social and political activities; morality is also used in order to justify personal decisions; the moral character of these decisions are often promoted in order to ensure the respect of these decisions by the persons to which they involve. Morality has been extensively used in social theory in order to justify the perceptions of theorists on specific social and political facts; also morality has been proved particularly valuable in order to explain the critical analysis of social and political phenomena; at the next level, morality is employed by theorists in order to justify the suggestions made in regard to social and political problems. In order to understand the connection between morality and law it is necessary to present the framework of morality – as a concept developed within specific social and political conditions. Moreover, it is necessary to refer to the explanations of morality given by theorists that have worked in the specific field. At this point, there are certain issues that need to be taken into consideration: a) morality can have different dimensions both historically and politically; in the first case, reference is made to the political and social conditions held in a specific society; morality is expected to have a different framework in societies with different social, cultural and political characteristics; the ethnographic characteristics and history of these societies is also likely to affect the perceptions of local population on morality; in the second case, morality can be given different characteristics by the political powers governing a specific country; more specifically, a political decision that is considered as moral by the government of a particular country may be characterized as immoral; in other words, the content of morality can be differentiated across different political systems, b) morality is also related with the personal background and experiences; the family perceptions on morality are likely to affect the views of individuals on the specific concept; in this way, morality can be characterized as a concept with both objective and subjective elements; the above phenomenon can also lead to the assumption that the opposition of certain social and political activities to morality can be interpreted differently – there are cases where this opposition is not even identified – referring to the cases that morality has been equalized with the personal interests and not with the interests of the public, c) morality is often used in order to promote specific political and social schemes; this practice is used especially when the opposition of the public to these schemes is expected to be strong; by highlighting to the connection of morality with these initiatives the developers of these schemes can hope to the limitation of resistance in regarded to the attempted changes – in most cases, the introduction of social and political schemes is related with the suggestion of changes on existing social and political framework; in the above context, morality can become a tool for the satisfaction of specific political and social interests – related to one or more individuals; d) the framework of morality is not clear; morality can be related to specific rules and principles, the rightness of which can be doubted; in this way, an action that in the past had been characterized as being opposed with social morals it can be actually considered as moral – the above assumption is based on the fact that social and political morals are changed through the decades in order to respond to the social and political characteristics of societies – these characteristics tend to change continuously under the influence of the changes in the style of life – affected by the advances of technology – and the increase of needs – both at the level of society and the individual. At this point, it would be necessary to refer to the content of morality; the identification of the characteristics of morality could help to the understanding of the connection between the specific concept and the law. 2.1 The role of morality in law Morality is closely related to the law; in fact, morality has been one of the elements on which all legal rules are based; the role of morality in law has the following form: morality sets the margins in which legal orders have to be developed; in this context, the legal texts that are found to be out of the margins of morality – i.e. to lead to immoral behaviour – need to be appropriately alternated; it is assumed that legal rules and texts that are not related to morality or those that urge people to behaviours that are opposite to morality need to be ignored. At this point the following issues need to be highlighted: a) morality can be important in law; however, morality is not an exclusive concept - in the terms of the potential co-existence of other concepts and principles that are required for the successive implementation of these policies, b) appropriate rules need to be developed in order for the concept of morality to be effectively implemented in existing legal orders; the above scheme is required only when the use of morality in a specific legal text is expected to change the content of the text; then, the use of rules that appropriately interpret morality is necessary, c) legislators should be informed on the value of morality as a concept supporting the development of effective legal texts. Different views have been developed in the literature in regard to the role of morality in law; in accordance with the most common view, morality is used as the basis on which legal principles are developed; a similar view focuses on the importance of morality for making clear the margins between the good and the bad – helping to the identification of the behaviours that opposite the existing laws. In the context of the above issues, morality is likely to affect a society’s legislative and social framework; however, the level of the interaction between the state’s authorities and the individual is not standard – a series of issues explained through this study is likely to affect a person’s views on morality – his behaviour towards law is also expected to be changed. The specific issues are made clearer in the theories presented below; most of these theories emphasize on the importance of social phenomena during periods of crisis; on the other hand, no specific information is provided in regard to the differentiation of morality from other social and political concepts, d) the level at which the principles of law should be informed on the progress has been set under consideration. 2.2 Value of morality in theories of law, justice and rights The concept of morality and its connection with law, justice and rights has been extensively examined in the literature; one of the issues highlighted by theorists that have studies the specific subject is that ‘a theory of moral responsibility needs ‘to give an account of the sorts of conduct that attract responsibility’ (Cane, 2002, p.97); on the other hand, Perry (1990) noted that the theory of Rawls on the relationship between the states and the law ‘is a failed vision’ (Perry, 1990, p.63); the explanation on the above comment is based on the fact that the process for the identification of the above relationship can be demanding; the criteria that Rawls set for the conditions of the market cannot be easily identified under common market conditions; this view is also supported by Bendlitt (1978) who tried to focus on the examination of the potential connection between the law and the morality and came to the conclusion that the view of Dworkin on law is opposite to the view of Hart’s – referring to the theory of law- especially in regard to the following point: ‘that the rule of community is a set of rules that can be identified by means of a master social rule’ (Bendlitt, 1978, p.74); the above view, stated by Hart, leads to the assumption that morality in the context of law is developed mainly under the support of the community; in other words, morality is related with the views of community on moral behaviour. The importance of morality for the development of legal rules can be supported by referring to the work of Hohfeld; the above theorist noted that ‘legal conceptions were conceptions about the relationships between people’ (William, 1987, p.35); therefore, concepts like morality – which refer to people –are expected to affect legal conceptions and legal rules. Towards a similar point of view Hart supported that the main priority of law is to help the people ‘to live peacefully together’ (Patterson, p. 203); using the specific theory, the value of morality for law is identified to the point that by promoting morality people would avoid conflicts; therefore, a peaceful style of life would be established. Dworkin is one of the most key supporters of the strong connection between law and morality; more specifically, the theory of Dworkin aims to prove that ‘the theory of adjudication which provides right answers necessarily makes morality part of the concept of law’ (Patterson, 2003, p.132); in other words, morality for Dworkin is a key part of law influencing its content but also its performance in the context of a particular social and legal environment. A similar approach is that of Thomas Aquinas who emphasized on the importance of natural law for the development of rules that govern the human activities; in accordance with the above theorist, natural law includes the rules that govern the nature but also the human relationships and activities; the view of Aquinas on natural law indicates the support of the above theorist towards morality – as an element of the obligations of people in the context of natural law (Kainz, 2004, p.17). Therefore, morality, as implied in the work of Aquinas, can affect all aspects of human activities including the development and evaluation of legal texts and conflicts – referring to the morality of judges. The relationship between the law and social concepts was also explored by Comte; the major difference between Comte and the other theorists that studied the theory of law was the emphasis on the interaction between law and phenomena; more specifically, Comte ‘defined law not as necessary relationship between phenomena but only as a statement of the relations that do obtain between sequences and co-existents’ (Taylor et al., p.69); in accordance with the above view, morality can be regarded as having a major influence of law; since law is heavily based on the relationship between the events and their consequences, the development of law is depended on the level at which morality is used for the formulation of legal orders; by enhancing morality the legal rules can expand their area of influence and increase their power in the context of a specific social and political framework. From a similar point of view, the deterioration of a country’s legal system can reflect the decrease in the use of morality when developing the legal rules on which the specific system is based. Bentham follows a different approach in interpreting law; his perceptions on the role of legal rules are based on the concept of liberty in a universal context; in other words, Bentham does not accept a close relationship between law and morality; however, through the theory of Bentham such relationship would be justified at the level that morality reflects the sense of equality and justice as they should exist in the universe. This means that morality in law is not related with the actions of specific people; it is rather a result of the universal need for moral behaviour; the view of Bentham on the relationship between morality and law is similar with the view of Comte; Comte emphasized on the relationship between the phenomena and the law while Bentham focused on the relationship between the law and the universe; both these views indicate a relationship between morality and law – even if this relationship is not direct. Another theory that could be particularly helpful in understanding the relationship between law and morality is the legal theory of Justin – also known as Logos Theory; the theory of Justin is based on the fact that the conceptions of people on the ‘right’ are based on the natural law; in other words, they are conceptions developed to humans since their existence, i.e. they are ‘implanted preconceptions’ (Jackson, 2001, p.135). In the above context, morality can be considered as closely related to the law; more specifically, the personal conceptions of people on morality can be used in order to understand the perceptions of people on law and in this way law can be considered as closely related to morality. The theory of Justin on natural law and its influence on a specific legal system has been particularly helpful in order to understand the potential relationship between law and morality; the aspects of this relationship – as explained above – show the reasons for which morality should be taken into consideration when developing a specific legal theory; because morality is part of the law its influence on the development of legal texts is absolutely justified; a problem exists when this relationship between law and morality is not accepted; it should be noted at this point that the opposition to the relationship between morality and law can be either direct or indirect; an indicative example is the theory of Kelsen; in accordance with the above theorist ‘justice and the higher law had no place in scientific jurisprudence’ (Tebbit, 2000, p.39); in other words, justice and law are separated from science; this separation indicates their different priorities and strategic tools; moreover, the above study shows that justice is a concept that can be developed independently from social ethics and moral standards; but this view should be opposed taking into consideration the fact that be separating the morality of law can be considered as an initiative similar with the separation of justice from the concept of right. 3. Benefits and disadvantages of the subject under examination – contribution to the improvement of the existing legal system. The subject under examination can be characterized as quite important; more specifically, through the specific subject, a series of benefits are expected to result. These benefits could be summarized as follows: a) the identification of the common elements between morality and law could help people to understand the necessity and the credibility of legal rules; indeed, in most cases, people deny to follow the law providing the argument that the terms under which the specific law has been introduced are opposite to the standards of morality (Hendrix, 2008, p.24); through a similar point of view, people need to understand that applying the legal rules is a necessity, not an option; having to face certain examples where the laws are not applied, people in a particular society often tend to ignore legal rules based on the fact that these rules have been also ignored by persons that participate actively in the specific country’s social or political life; morality could set the margins for recognizing the necessity and the credibility of legal orders; in this context, the ignorance of laws would not be regarded as a moral action but as an attempt to delete the existing morals; b) current study could help to identify the level at which morality is incorporated in legal rules; or at least the level at which morality affects the content of legal texts – referring to all forms of these texts, including laws and court decisions; in accordance with the views of theorists presented above, the level of dependency of law and justice on morality is not standard; it can be differentiated in accordance with the political and social conditions of each particular society; the level of connection between morality and law could help to identify the countries with problematic legal systems – it is implied that this system has been found as not being related to morality; the above finding could further need to the suggestion for intervention of the international community for the local legal system to be appropriately updated/ improved, c) the understanding of the connection between morality and law could also help to the understanding of the relation between the law and other social concepts; having as a basis the form of the connection – and the level of interaction – between morality and law it would be easier to identify whether there are other social concepts and principles that also influence law and justice, d) especially in regard to the legal rights, current subject would be considered as quite important; by highlighting the connection between morality and rights, the necessity for respecting the rights is made clearer; moreover, the power of these rights is increased – based on the argument that their existence is related with the need for supporting morality in all social and political activities, e) this subject could also help to understand the obligations of the persons that participate in the development of justice – referring not only to the legislators but also to the judges of courts of all levels; at this point the following problem appears: morality needs to be a key criterion for ruling; however, there are cases that the text of a legal rule may be opposite to the common sense of morality – usually under the need for protecting an interest that is considered to be of higher importance, f) the specific subject would also affect the interpretation of legal texts; in accordance with the issues developed above, the opposition of legal rules with morality – or just their failure to be aligned with the existing moral standards – would lead to their rejection; the last two cases, i.e. the use of morality for identifying the obligations of the individuals that work in the specific field and for interpreting specific legal texts indicate that morality could be valuable in the improvement of existing legal system. Furthermore, it is this potential role of morality that proves the value of this study. On the other hand, the subject of the study could be possibly related to certain disadvantages: a) by highlighting the value of morality for the establishment of legal texts – laws, court decisions – the role of other concepts and principles on the formulation of law it is possible ignored; in other words, it could be assumed that morality is the concept that governs the development of law in a particular country; this assumption cannot be verified; indeed, there are many concepts and principles that can be regarded as having an important role in the formulation of legal rules worldwide – for example the concept of freedom or the one of equality, b) by emphasizing on morality and its importance for the formulation of law one could face the following problem: the establishment of legal texts that are based on morality would possibly be in opposition with an existed – similar – rule; this problem can be resolved b emphasizing on the specific sector and make appropriate use of the principles of common law – which emphasizes on the natural law as this concept has been further developed in the last decades, c) another issue that could possibly appear in the context of this study is the criteria on which the explanation of morality will be based; morality is a quite complex concept; when trying to establish and explain the connection between morality and law which characteristics should be given to morality – or else, on which characteristics of morality should we emphasize? It should be noted here that morality in law has similar elements with the morality in work or the morality in the family; the duty of rightness is emphasized in all these cases even if additional issues would be also related to morality in the above forms of this concept; d) a similar problem with the one described above is the following: since morality is an important criterion for the development of social and political ideas and decisions which would be the appropriate position of morality in the context of social concepts and principles; In other words, which position could morality have in the hierarchy of social concepts? The answer to the above question cannot be standardized; the position of morality as a social concept and principle can be differentiated in accordance with the local ethics and values. On the other hand, the role of morality as a basis for the interpretation of legal texts and the improvement of existing legal system cannot be doubted – based on the issues explained above. 4. Personal view on the value of morality in law The importance of morality in the development of law cannot be doubted; indeed, as also proved through the relevant theories, morality can strongly affect the law developed in a particular social and political context; however, in order for morality to contribute to the development of a particular legal system it is necessary for the following issues to be explored: a) the criteria on which the existence or not of morality in a specific legal text will be decided; the above issue would be also set as follows: who would be responsible to decide on the alignment of a particular legal text to the moral rules as applied on a specific region, b) is the use of morality indicated in the particular case? In other words, is there a concept of higher relevance to the specific case; in the same context, is there an interest that is of high priority and that needs to be served even if it is not aligned with the standards set by morality, c) can other concepts and principles be used instead of morality in order to explore the behaviour of individuals under specific terms, d) which is the most indicated approach for interpreting morality in the context of a specific social or political framework? In accordance with the issues developed above, morality needs to set as a criterion for supporting a theory of law, justice or right; in a different case, the following risks would exist: a) legal texts that are not based on morality could be promoted instead; the above fact would possibly lead to the assumption that morality is not of importance for developing and enhancing legal rules; however, this outcome could lead to the limitation of the importance of morality as an element of legal texts – of all types in the context described above; in other words, immoral behaviour could be promoted, b) the legal texts produced without using morality would fail to meet their targets – i.e. to enhance peace and equality across a specific country; morality has been traditionally an important concept; however, its ignorance would lead to severe turbulences and instability (social and power). The examination of the theories of law – as presented above – can lead to the assumption that law is related to morality but this relationship is not standardized; there are also views – like the one of Kelsen – which indicate a different role of law; this of the enhancement of a specific way of action which is not scientifically tested; indeed, Kelsen does not accept the relationship between morality and law – or at least the terms set for this relationship cannot be applied taking into consideration the challenges that a country’s authorities have to face in regard to specific works of law – meaning the texts of law, i.e. the legal rules established for a particular subject. Despite the potential conflict in regard to the role of morality in the development of law, most of the theorists who studied the specific subject agree that law is closely related to morality – the explanations given by theorists for the above view can be characterized as satisfactory so that the specific argument – close relationship between the law and the morality - to be fully justified. It should be noted at this point that the relationship between morality and law is not always clear or direct; their interaction can be identified in the methods used for the development of legal rules; these methods are often likely to be based on the principle of morality even if this fact is not clearly stated. Under the above terms it is suggested that morality is used in the development of legal texts of all types; the above fact has been resulted because of the following two reasons: a) law sets the terms under which a behaviour is accepted, in other words the enhancement of the concepts of right and morality is attempted; through this argument, the relationship between morality and law is based on the mission of law as a tool or scheme to promote morality, b) the existing legal theory supports the close relationship between morality and law; however, in any case, morality – as described above – should be appropriately updated in each case that political and social changes are in progress. 5. Conclusion Through the decades the appearance of concepts that are related to the various human activities has been of critical importance for the effective development of these activities; an indicative concept of this type is morality; the specific concept has been traditionally related to different interpretations; however, it should be noted that morality has a specific criterion; the avoidance of any action that could harm the interests of the public – or of a narrower team of persons; One of the key issues revealed in regard to the appearance and development of morality is the lack of effective framework – referring to the social and political conditions that can be hostile to any suggested initiative. Morality is a concept used in different social and political frameworks in order to indicate the need for following a practice that is aligned with existing ethical standards and rules; in the context of law, morality is a challenging concept taking into consideration the high level of disputes brought before the courts on annual basis; in these cases, the examination of the existence or not of morality is difficult to be effectively handled. Because of the issues presented above it is concluded that morality has to be set as a criterion in order to support specific theories of law, justice and rights; in this way, it is made clear that unethical practices are not accepted by existing law. Most important, the concept of fairness in justice is promoted. In other words, morality – as all other social and political concepts – can be used as a ‘unique criterion’ but also as a key element of legal planning. The personal view developed on the issue under discussion is based on the fact that within the international community the need for ethical rules and principles – like morality – is emergent; morality is a concept that can help to the improvement of the existing legal system – in the context explained above. References/ Bibliography Bendlitt, T., 1978. Law as rule and principle: problems of legal philosophy. Stanford University Press Cane, P., 2002. Responsibility in law and morality. Hart Publishing Clarke, S., Simpson, E., 1989. Anti-theory in ethics and moral conservatism. SUNY Press Donagan, A., 1979. The theory of morality. University of Chicago Press Dworkin, R., 1986. Laws empire. Harvard University Press Dymond, J., 1839. Essays on the principles of morality: and on the private and political rights and obligations of mankind. Harper & Brothers. Original from Harvard University Dyzenhaus, D., Moreau, S., 2007. Law and morality: readings in legal philosophy. 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