Where law and morality meet

Where Law and Morality Meet - Matthew H. Kramer - Google Книги

where law and morality meet

Table of Contents for Where law and morality meet / Matthew H. Kramer, available from the Library of Congress. Through a variety of discussions, Where Law and Morality Meet highlights both some surprising affinities and some striking divergences. Where Law and Morality Meet | Matthew H. Kramer | ISBN: | Kostenloser Versand für alle Bücher mit Versand und Verkauf duch Amazon.

Because the purgative rationale for the death penalty is strictly deontological though non-Kantianit is not dependent on empirical contingencies like those on which the deterrence-oriented and denunciatory rationales are dependent. It therefore does not become bogged down in the futility of the myriads of conflicting empirical studies through which social scientists have sought to ascertain the presence or absence of those contingencies.

In the lengthy final chapter of my book, I discuss the problems that afflict the implementation of the death penalty, and I leave open the possibility that the imposition of such a penalty will never be permissible in practice notwithstanding its legitimacy in principle. Indeed, that book closes with a call for a moratorium on capital punishment. First, in some circumstances, most of the standard rationales for capital punishment call also for the infliction of supplementary sanctions such as prolonged torture.

Second, some of the standard rationales deem the execution of innocent people to be morally permissible and morally obligatory in certain credibly possible contexts.

Table of contents for Where law and morality meet

Third, most of the standard rationales contravene the principle that a necessary condition for the permissibility of any governmental measure M is that M be the least invasive feasible means of attaining the legitimate end in pursuit of which M is undertaken. Fourth, some of the standard rationales favor the organizing of executions as public spectacles with especially brutal methods of putting capital prisoners to death.

Those and several other moral failings in the standard rationales are all avoided by the purgative rationale. The notion of evil is indeed discountenanced by a number of contemporary philosophers, and even more widely discountenanced is the notion of defilement.

Having said as much, I should immediately add that I benefited from many illuminating accounts of evil that have been propounded by philosophers over the past few decades. By contrast, I discovered very little good philosophical work on defilement in recent decades. I do mention a few writings in my discussion of the matter, but for the most part I had to find my own way. Clearly, the main challenge has been to secularize ideas that were originally developed in religious contexts.

I think that I have succeeded in doing as much. There is certainly nothing mysterious or eerie or numinous in the concept of evil as I expound it. My account of evil in a nutshell is as follows: Evil conduct is underlain by sadistic malice or heartlessness or extreme recklessness that is connected to severe harm in the absence of any significant extenuating circumstances. As for the notion of defilement, the key to it in the Hebrew Scriptures and in Greek mythology is that a community transgresses against God or the gods by harboring perhaps unwittingly an evildoer in its midst.

If capital punishment is a central contemporary issue so is the use of torture. Why do you argue that torture is always wrong?

There is no single answer to that question, because there are many different types of torture, and the explanation of the wrongness of torture is not uniform across those types. When I refer to the sundry types of torture, I am not differentiating among them on the basis of the techniques employed; rather, I am differentiating among them with regard to the chief purposes for which torture is undertaken.

Let me say a bit here about the most frequently discussed type, interrogational torture. My book Torture and Moral Integrity maintains that such torture is always and everywhere morally wrong. The gravity of the wrong varies, but the wrongness itself does not. Hence, it should be apparent that that book is as robustly deontological as any of my previous volumes.

Interrogational torture involves the deliberate infliction of severe pain for the purpose of extracting information from someone either from the person on whom the pain is directly inflicted or from someone who is likely to care deeply about that person. The deliberate infliction of severe pain for that purpose is always morally wrong because of the overweeningness of the control exerted both through the infliction itself and through the aim which it is undertaken to achieve.

The overweeningness of the control exerted by the infliction itself has been brought out especially incisively in recent years by David Sussman, and the overweeningness of the aim pursued has been brought out especially incisively in recent years by David Luban.

Hence, I draw upon their writings as well as those of many other philosophers in my ruminations on torture. Punitive torture is always morally wrong because, in light of the availability of alternative sanctions including the death penaltyits infliction of severe pain serves as a means of attaining vengeance.

By contrast, the purgative rationale is wholly dissociated from any quest for vengeance. The only rationale for capital punishment that presents it as a means of vengeance is the denunciatory rationale.

Some retributivists over the centuries have associated their doctrine with a quest for revenge, but most contemporary retributivists differentiate sharply between retribution and revenge. If the contrast is instead between capital punishment and interrogational torture or several other types of torture that are relevantly similarthe key differences bear on the overweeningness which I mentioned above. Because the infliction of pain is strictly incidental if it occurs at all in a purgative execution, capital punishment is not overweeningly controlling in the first respect identified above.

Its effects are more wide-ranging than the effects of most non-lethal techniques of torture, but the agony-exploiting and minutely controlling properties of interrogational torture are absent from a purgative execution. Why is the overweening controllingness of interrogational torture so important? The answer to that question is signaled in the title of my book, for I understand moral integrity as conformity to a deontological ethic of self-restraint.

Although my elaboration of that ethic has been inspired partly by Stoicism, it is not tied to any Stoical doctrines. Your second sentence here also asks why torture would be wrong if it serves to avert a calamity. I naturally discuss calamity-averting torture, especially calamity-averting interrogational torture, at many junctures in my book. On the other hand, far more realistic is a situation in which the use of torture can avert a single death or some other small-scale calamity.

Such situations are very rare, but they are not fanciful.

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Why would interrogational torture be morally wrong even in such a situation? The short answer to this question is that all the wrong-making properties of interrogational torture are present when it averts a calamity as well as in any other context. It undermines any sense of true human rights, leaves the individual defenseless against unjust laws, and opens the way to different forms of totalitarianism.

This should be easy enough to see for a person open to the truth; but many people's minds have set into superficial ways of thinking, and they will not react unless they have been led on, step by step, to deeper reflection and awareness The right relationship between law and morality Law and Morality do not coincide in meaning, though there is - there should be - a necessary interdependence between them.

Moral law distinguishes right and wrong in free human actions. It is aimed above all at personal improvement and ultimately at salvation.

Natural Law | Internet Encyclopedia of Philosophy

Political-civil law is aimed at making it possible for people to live together in community: Its concern is not directly supernatural, although in creating the conditions for true justice and truly human behavior, it indirectly favors it. Human civilization is not possible without law and morality, standing in right relationship. The growing modern crisis of the West, shaking its culture and civilization to its foundations, stems from separating both, seeing no necessary relationship between them.

But this is to relativise justice and truth in human relations, and to reject any concept of objective truth capable of uniting men. The bond of unity between men is tenuous when they simply share material interests; this is an association of self-interests always prone to clash. Unity goes deeper and is stronger against potential divisions when people have common values to look up to: Law "Law", according to the Encyclopedia Britannica, "refers to the specialized form of social control familiar in modern, secular, politically organized societies".

The thomistic and christian view understands law otherwise: The purpose of human law is the common good more than the good of individuals I-II, q. It is to establish a certain order, so as to protect social living. Without law, there is no society, only the jungle, the rule of might "If there is justice, and if law is based on a discernment of what is just, dialogue can begin and benevolence can appear; so we come to what is ours in common.

The first form of culture is law. Its effectiveness means that barbarism has been overcome: Morality Ethics or morals is the study of what we ought to do; i. Fundamental moral concepts such as right and wrong are necessarily universal. If they are treated as relative and subjective, then they become inapplicable to the social sphere; and hence to the whole area of human law.

If what is wrong to me may legitimately be right to someone else, then one may perhaps debate the opportuneness of this or that law, but not its justice.

Without an interior sense of a moral order, there can be little respect for the law; for this can only come from feeling oneself bound from within to observe the law. Here we note that the almost universal modern concept of law as a system of rules created by the state - which ensures its application through a system of courts and a coercive power - leaves the law without any interior appeal or authority, except insofar as one may recognize the need for some minimum of common rules.

It also exposes the individual to the tendency to regard the law as purely external imposition to be evaded, if one can, whenever it is considered personally inconvenient. The purpose of morality is to ensure the uprightness of individual conscience the law cannot force a conscience to be upright. Yet christian morality is not individualistic; it leads one into community. Law and freedom Both law and morality imply human freedom. Clearly, without freedom one cannot speak of morality.

But the same holds for law, for if it were automatically and not freely obeyed, men would be mere robots. Law is not a simple indication of what happens, such as the law of physics; it is an admonition to free persons about what they are required to do if they wish to live freely and responsibly in society; and it normally carries with it a sanction or punishment to be imposed on whoever is shown to have acted against given norms of conduct.

Just law, properly understood, appeals to freedom. Nevertheless one of the most generalized liberal ideas is that law is by nature the enemy of freedom. Servais Pinckaers holds that Catholic moralists have gone through many centuries under the influence of this mentality which has led, by reaction, to the anti-law approach of much of contemporary moral theology.

where law and morality meet

In this view, law and freedom were seen as "two opposed poles, law having the effect of limitation and imposing itself on freedom with the force of obligation. Freedom and law faced each other as two proprietors in dispute over the field of human actions. The moralists commonly said, "Law governs this act, freedom governs that one Today we witness a strong tendency to invert the roles; the moralists now regard themselves as defenders of freedom and of personal conscience" [as against the law] [3].

Law and justice Law cannot attempt to regulate the purely interior sphere of personal conduct; morality can. Human or civil law is connected with external actions, precisely insofar and because they impinge on the rights or lawful actions of others. Hence the necessary connection of law with justice. For the regulation of interpersonal relations must work from the basic principle of justice: Hence arises the fundamental question of what is due to each one, and from this the further question of human rights.

To each his due. Something is due to each. This is the sense of equality before the law. If there is an expression of the unity of the human race and of equality between all human beings, this expression is rightly given by the law, which can exclude no one from its horizon under pain of altering its specific identity" [4]. Even for those who see law and freedom in mutual opposition, the whole concept of law is essentially connected with that of justice.

The ancient principle lex iniusta non est lex an unjust law is not a lawis at the basis of so many modern protests in the name of freedom. But justice is a moral concept; so these protests bear out the intrinsic connection between law and morality, "There is another crucial link between the virtues and law, for knowing how to apply the law is itself possible only for someone who possesses the virtue of justice" [5].

Justice must remain the norm, and sometimes the law must regain ground for justice. Basis and justification of law and authority Social harmony, among persons capable of free choice, and hence of justice or injustice towards each other, is not possible without law. But whence do we derive the authority of the law? The first view has been proposed since ancient times. In Sophocles' Antigone, Creon, the king, wishing to justify his tyranny: This is reflected in the program for life which Goethe's Mephistopheles, the demon-spirit, proposes to men: In this view, law loses all interior force, it becomes essentially coercive; its force deriving mainly from the threat of its sanctions.

This view is held by those who profess an extreme positivism, rejecting any concept of a natural law binding on all men. In a well-known lecture inOliver Wendell Holmes [6], then a justice of Supreme Court of Massachusetts, sought to reduce the whole function of the law to a simple indication of what the courts will do, or a person may have to suffer, in the event of a particular mode of conduct.

The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it - and nothing else" [7].

This immanent view makes the law justify itself. What is enacted in law must be obeyed. This leaves one without any grounds for objecting to a law, except one's personal dislike.

There is no common court of higher appeal. An apparently "democratic" version of this is that the authority of the law comes from the people: But this still leaves minorities with no basis for any rights except those that the majority or the manipulators of the majority grant them [8]. Natural Law The only true alternative to positivism is the view that the authority of the law derives from what man is; and that man can find within himself a measure of the rightness or wrongness of the law.

This view of the law goes back to the most ancient times; it has been the common wisdom of the ages. Among the Romans, Cicero taught: If in some respect it diverges from the natural law, it is no longer a law but a corruption of the law" [10].

The Nuremberg trials after World War II seemed to promise a revival of the notion of the Natural law, standing higher than any state law. But this tendency was soon strongly countered by the positive school dominant in modern jurisprudence, perhaps because it was realized that the natural law necessarily points to a higher authority than man himself, governing all the affairs of mankind.

The Encyclopedia Britannica, in an article entitled "Law, morality and natural law", treats of the natural law very marginally and almost dismissively. It has always been possible to trace a mainstream of natural-law thought, flowing from Aristotle's premise that the "nature" of any creature, from which obligations must be derived, is what it will be in its fullest and most perfect development.

For man, this means what he is when the powers and qualities distinguishing him from other creatures, namely, his reason and his impulse to social living, are fully developed.

There will still be coordination problems e.

Where Law and Morality Meet

Thus, the classical naturalist does not deny that human beings have considerable discretion in creating natural law. Rather she claims only that such discretion is necessarily limited by moral norms: Critics of conceptual naturalism have raised a number of objections to this view.

First, it has often been pointed out that, contra Augustine, unjust laws are all-too- frequently enforced against persons. As Austin petulantly put the point: Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense.

The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity Austin Of course, as Brian Bix points out, the argument does little work for Austin because it is always possible for a court to enforce a law against a person that does not satisfy Austin's own theory of legal validity.

Another frequently expressed worry is that conceptual naturalism undermines the possibility of moral criticism of the law; inasmuch as conformity with natural law is a necessary condition for legal validity, all valid law is, by definition, morally just. Thus, on this line of reasoning, the legal validity of a norm necessarily entails its moral justice. As Jules Coleman and Jeffrey Murphy18 put the point: The important things [conceptual naturalism] supposedly allows us to do e.

If we really want to think about the law from the moral point of view, it may obscure the task if we see law and morality as essentially linked in some way. Moral criticism and reform of law may be aided by an initial moral skepticism about the law. There are a couple of problems with this line of objection.

where law and morality meet

First, conceptual naturalism does not foreclose criticism of those norms that are being enforced by a society as law. Insofar as it can plausibly be claimed that the content of a norm being enforced by society as law does not conform to the natural law, this is a legitimate ground of moral criticism: Thus, the state commits wrong by enforcing that norm against private citizens. Conceptual jurisprudence assumes the existence of a core of social practices constituting law that requires a conceptual explanation.

The project motivating conceptual jurisprudence, then, is to articulate the concept of law in a way that accounts for these pre-existing social practices. A conceptual theory of law can legitimately be criticized for its failure to adequately account for the pre-existing data, as it were; but it cannot legitimately be criticized for either its normative quality or its practical implications.

A more interesting line of argument has recently been taken up by Brian Bix Following John FinnisBix rejects the interpretation of Aquinas and Blackstone as conceptual naturalists, arguing instead that the claim that an unjust law is not a law should not be taken literally: A more reasonable interpretation of statements like "an unjust law is no law at all" is that unjust laws are not laws "in the fullest sense.

Similarly, to say that an unjust law is "not really law" may only be to point out that it does not carry the same moral force or offer the same reasons for action as laws consistent with "higher law" Bix Nevertheless, while a plausible case can be made in favor of Bix's view, the long history of construing Aquinas and Blackstone as conceptual naturalists, along with its pedagogical value in developing other theories of law, ensures that this practice is likely, for better or worse, to continue indefinitely.

Like Bix, Finnis believes that the naturalism of Aquinas and Blackstone should not be construed as a conceptual account of the existence conditions for law. According to Finnis, the classical naturalists were not concerned with giving a conceptual account of legal validity; rather they were concerned with explaining the moral force of law: On Finnis's view of the Overlap Thesis, the essential function of law is to provide a justification for state coercion a view he shares with Ronald Dworkin.

Accordingly, an unjust law can be legally valid, but it cannot provide an adequate justification for use of the state coercive power and is hence not obligatory in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the concept of law.

An unjust law, on this view, is legally binding, but is not fully law. Like classical naturalism, Finnis's naturalism is both an ethical theory and a theory of law. Finnis distinguishes a number of equally valuable basic goods: Each of these goods, according to Finnis, has intrinsic value in the sense that it should, given human nature, be valued for its own sake and not merely for the sake of some other good it can assist in bringing about. Moreover, each of these goods is universal in the sense that it governs all human cultures at all times.

The point of moral principles, on this view, is to give ethical structure to the pursuit of these basic goods; moral principles enable us to select among competing goods and to define what a human being can permissibly do in pursuit of a basic good. On Finnis's view, the conceptual point of law is to facilitate the common good by providing authoritative rules that solve coordination problems that arise in connection with the common pursuit of these basic goods.

Thus, Finnis sums up his theory of law as follows: Again, it bears emphasizing that Finnis takes care to deny that there is any necessary moral test for legal validity: Nevertheless, Finnis believes that to the extent that a norm fails to satisfy these conditions, it likewise fails to fully manifest the nature of law and thereby fails to fully obligate the citizen-subject of the law. Unjust laws may obligate in a technical legal sense, on Finnis's view, but they may fail to provide moral reasons for action of the sort that it is the point of legal authority to provide.

where law and morality meet

Thus, Finnis argues that "a ruler's use of authority is radically defective if he exploits his opportunities by making stipulations intended by him not for the common good but for his own or his friends' or party's or faction's advantage, or out of malice against some person or group" Finnis For the ultimate basis of a ruler's moral authority, on this view, "is the fact that he has the opportunity, and thus the responsibility, of furthering the common good by stipulating solutions to a community's co- ordination problems" Finnis Finnis's theory is certainly more plausible as a theory of law than the traditional interpretation of classical naturalism, but such plausibility comes, for better or worse, at the expense of naturalism's identity as a distinct theory of law.

Indeed, it appears that Finnis's natural law theory is compatible with naturalism's historical adversary, legal positivism, inasmuch as Finnis's view is compatible with a source-based theory of legal validity; laws that are technically valid in virtue of source but unjust do not, according to Finnis, fully obligate the citizen.

Indeed, Finnis believes that Aquinas's classical naturalism fully affirms the notion that human laws are "posited.

The Procedural Naturalism of Lon L. Fuller Like Finnis, Lon Fuller rejects the conceptual naturalist idea that there are necessary substantive moral constraints on the content of law. But Fuller, unlike Finnis, believes that law is necessarily subject to a procedural morality. On Fuller's view, human activity is necessarily goal-oriented or purposive in the sense that people engage in a particular activity because it helps them to achieve some end. Insofar as human activity is essentially purposive, according to Fuller, particular human activities can be understood only in terms that make reference to their purposes and ends.

Thus, since lawmaking is essentially purposive activity, it can be understood only in terms that explicitly acknowledge its essential values and purposes: The only formula that might be called a definition of law offered in these writings is by now thoroughly familiar: Unlike most modern theories of law, this view treats law as an activity and regards a legal system as the product of a sustained purposive effort Fuller To the extent that a definition of law can be given, then, it must include the idea that law's essential function is to "achiev[e] [social] order through subjecting people's conduct to the guidance of general rules by which they may themselves orient their behavior" Fuller Fuller's functionalist conception of law implies that nothing can count as law unless it is capable of performing law's essential function of guiding behavior.

And to be capable of performing this function, a system of rules must satisfy the following principles: P1 the rules must be expressed in general terms; P2 the rules must be publicly promulgated; P3 the rules must be prospective in effect; P4 the rules must be expressed in understandable terms; P5 the rules must be consistent with one another; P6 the rules must not require conduct beyond the powers of the affected parties; P7 the rules must not be changed so frequently that the subject cannot rely on them; and P8 the rules must be administered in a manner consistent with their wording.

On Fuller's view, no system of rules that fails minimally to satisfy these principles of legality can achieve law's essential purpose of achieving social order through the use of rules that guide behavior.

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A system of rules that fails to satisfy P2 or P4for example, cannot guide behavior because people will not be able to determine what the rules require.

Accordingly, Fuller concludes that his eight principles are "internal" to law in the sense that they are built into the existence conditions for law. These internal principles constitute a morality, according to Fuller, because law necessarily has positive moral value in two respects: Since no system of rules can achieve these morally valuable objectives without minimally complying with the principles of legality, it follows, on Fuller's view, that they constitute a morality.

Since these moral principles are built into the existence conditions for law, they are internal and hence represent a conceptual connection between law and morality. Thus, like the classical naturalists and unlike Finnis, Fuller subscribes to the strongest form of the Overlap Thesis, which makes him a conceptual naturalist.

Nevertheless, Fuller's conceptual naturalism is fundamentally different from that of classical naturalism. First, Fuller rejects the classical naturalist view that there are necessary moral constraints on the content of law, holding instead that there are necessary moral constraints on the procedural mechanisms by which law is made and administered: Second, Fuller identifies the conceptual connection between law and morality at a higher level of abstraction than the classical naturalists.