Is there any necessary connection between law and morality?

From the viewpoint of legal positivism, which was promoted by Thomas Hobbes and Herbert Lionel Adolphus Hart, it is possible to examine the relationship, if any, between morality and the law. Legal positivism holds that morality and law are not inherently mutually exclusive and that legal systems consist solely of positive law. By separating positive law from the imperative theory of law, moral philosophies, and analytical features of legal language, Hart suggested the idea of legal positivism. He suggested that legal positivism entails separating law from morals in order to describe his thesis. Positivists suggest that the assessment of the content of law does not depend on moral perspectives on the value of laws. However, Fuller clearly shows the distinction between law and morality in terms of contents and scope. Law and morality cannot be separated; they both serve the same purpose – to regulate human behaviour; morality sets the values upon which laws are created, and laws should live up to such moral ideals; and as Fuller argues, laws are internally moral.

Legal positivism in Hart’s perspective includes the idea that laws are human commands that regulate human behaviour. According to him, any law that is used by the authorities as a coercive tool to force citizens to do or abstain from doing something is a primitive law. Hart proposed a different kind of rule that gives citizens the power to create rights and obligations without restrictions on their freedoms to do so. Full-blown legal systems are characterised by the rule of recognition, the rule of change, and the rule of adjudication. In this regard, every society has a legal system that offers the rule of recognition to provide a criteria for establishing legal validity including the creation, modification and adjudication of rules.

Hart also opposes laws create coercive obligation. He suggests that any leader who governs by coercive rules is not different from a criminal. However, any law whether good or bad, is still law as long as it derives legitimacy from sovereign authority. This perspective provides a distinction of law from morality. Moral values create duty and obligation for all citizens and the authorities. Hart argues that subjects under a coercive law are obliged to comply with the rules, but they are not bound or obligated by duty to obey such rules. Therefore, application of coercive rules does not create any form of obligation, whether legal or moral.

Normally, citizens may not be cognisant of the legal structures and their criteria of validity. The laws are valid as long as they are approved by majority of the officials on the basis of recognition and validity criteria. The role of citizens is only to obey the primary rules that have been recognized as being legally valid. From Hart’s view, a legal system exists when the valid rules of behaviour are obeyed by citizens, and the rules of recognition and criteria of legal validity have been generally accepted by the officials. In this regard, the law is different from morality on the basis of recognition and validity. The fact that a rule of law is prudent, wise, efficient and just does not necessarily mean that it is actually law; and the fact that they are unwise, imprudent, inefficient and unjust do not mean that they are insufficient reasons for creating a law. Positivism suggests that law is what has been socially constructed through ordering, decision, practice and tolerance. The laws may be unjust, and illegitimate to some people, but they are rules nonetheless.

Thomas Hobbes supports this perspective of legal positivism by suggesting that the validity and legitimacy of laws are derived from the existence of a sovereign power. According to Hobbes, law depends on the will of the sovereign. He suggested that human nature is characterised by self-seeking behaviours which lead people to fight against each other, causing war and disasters in the society. To remedy this situation, he suggests that there should be a strong central government that governs on the basis of the rule of law to maintain peace and order. Hobbes postulates that the government has the sovereign authority to develop and implement laws regardless of how unjust they may seem, as long as they can achieve the intended purpose of maintaining peace and order in the society. From a moral perspective, it seems the government is the only body that can establish what is right or wrong for the entire state.

Furthermore, Thomas Hobbes suggests that legal positivism is different from the intellectual traditions of common law scholarship, because such scholarship no longer provided any good account of political authority. In this regard, Thomas Hobbes tries to establish the basis on which law derives its authority within a wide class of theories concerned with social order. According to Hobbes, legal rules have authority different from the outcomes of moral principles because they provide definitive solutions to human problems in all aspects of life.

The separation thesis suggests that the law and morality are distinct in terms of conception. In this regard, the definition of law should be completely freed from moral ideals. In this regard, moral considerations must not be included in the definition of legal terms such as legal validity, laws, and legal systems. Legal positivism suggests that there are no moral constraints on the validity of legal rules. All positivists agree that it is possible to have legal systems without moral constraints, but they do not agree on whether there are some legal systems that experience such moral constraints. Hart supports the inclusive perspective of positivism which suggests that it is possible for the society to integrate the law with moral constraints. For example, Hart argues that the rule of recognition may incorporate moral principles and values in its criteria of legal validity.

However, exclusive positivists such as Joseph Raz deny the idea that legal validity may be constrained by moral values or principles. According to the exclusivists’ arguments, the content and existence of law are based on the sources of law with concern for moral views. The sources of law in this case include the interpretive materials upon which the laws are based, and the circumstances of creating them. However, the exclusive positivist perspective is challenged by the existence of laws that seem to incorporate moral perspectives. For example, the United States Fourth Amendment suggests that the people have the right to be secure from any unreasonable searches and seizures; and the First Amendment prohibits rules that violate people’s rights of speech. Indeed, these laws incorporate moral standards in determining legal validity; but it is important to understand the difference between moral standards and laws.

The moral standards are the measures that distinguish between right and wrong; while laws are sets of rules that regulate behaviour in a particular country or community. The moral standards do not give sanctions, but they establish the right and wrong actions. On the other hand, legal rules identifies the things that people should or should not do, whether they are right or wrong, as long as they are accepted by the authorities given the mandate to set the rules. The authorities may be obliged by the sense of duty and responsibility to incorporate moral standards that promote social norms and traditions of their societies in formulating the rules of law. The Fourth and First Amendment are examples of laws that were created within the standards of morality. The First Amendment recognizes the moral responsibility to protect other people’s freedoms; hence the law is formulated to regulate people’s behaviour towards respect and value of others.

Moral standards are also often used in the process of interpreting the law. For instance, the Supreme Court may make judgments on the use of evidence based on the Fourth Amendment, which provides the moral standards of applying the law. When someone is suspected to have committed a crime, they are served with a search warrant without which the law enforcement agencies cannot enforce their legal right of arrest and interdiction. The Fourth Amendment recognizes that the suspected individual is a human being with rights, duties and responsibilities; and it is the moral duty of any reasonable government to respect such rights. However, the moral duty alone cannot be admissible in legal enforcement, so it had to be incorporated into law to create a legal validity. ** suggests that law and morality are complementary to each other. Indeed, the United States has proved this point by incorporating moral rights, duties and responsibilities to various amendments to its constitution.

Because judges often use the law to make their rulings, moral standards are incorporated in the law to give judges the opportunity to identify the wrong and right actions to take in particular circumstances, while at the same time operating within the law. Exclusive positivists argue that the use of moral standards to make a ruling in court leads to the creation of a new law; most case laws used in the United States are based on moral judgments in previous cases where the constitutional law was not clear about the rules of the case. The law is often subject to different interpretations, and the judges, having full knowledge of the law and expertise in the field, make judgments that reflect the right things to do in specific situations. Such decisions become law, whether they were based on legal or moral considerations, as long as they were made within the legal system. In this regard, the law and morality are indeed complementary rather than distinct from each other.

Lon Fuller also provides a comprehensive argument for the morality of law in the book, The Morality of Law, in which he argues that the law is characterised by internal morality based on eight principles: expressing rules in general terms; public promulgation of the rules; rules being prospective in effect; rules must be understandable; consistency of the rules; must be based on powers of the affected parties; should not be changed frequently; and must be administered consistently according to their wording.

These principles of legality are necessary for the application of rules to achieve social order and regulate human behaviour. Rules that fall short of these principles cannot regulate behaviour effectively as required in the legal system. For example, rules that are not publicly promulgated or properly understood cannot regulate human interactions because the people may not be able to establish what the law requires. The eight principles are inherently necessary as internal building blocks of the law because they are part of the necessary conditions for the existence of law. According to Fuller, any system that fails to meet any of the eight principles is not a legal system.

Fuller suggests that law is basically moral because the eight principles which qualify the rule of law constitute morality. Fuller also suggests that the law has a positive moral value because it entails the creation of a system of social order through the respect for human rights freedom. Rules guide behaviour to promote human autonomy so that no one can interfere with the rights and freedoms of others. For example, criminal law regulates that a person who steals or destroys the property of another person should be jailed and compelled to pay for the damages caused. In some cases, the courts order the criminal to pay for damages in civil law, which allows the wrongdoer to be accountable or take responsibility for his actions.

These rules are inherently as moral as religious values. For instance, the Christian Commandments includes a rule which states, “Do not Steal”. This religious doctrine is similar to the rules of criminal law, and both of them are based on moral grounds – stealing and destroying people’s property are not the right things to do, morally speaking. Legally speaking, such moral standard is affirmed, but an aspect of sanctioning and punishment is added. In religion, such wrongdoing is punished by “God” in the afterlife. In whichever way morality is defined, it is clear that any law, whether secular or religious, is inherently moral in nature.

Fuller’s perspective on internal morality of laws is inconsistent with the idea of separation between morality and law. According to Fuller, the eight moral principles forming the foundational conditions for the existence of law are internal hence depicting a conceptual linkage between morality and law. However, Hart opposes this point by arguing that the eight principles suggested by Fuller are not moral principles, but internal standards of efficacy. He opines that when the inherent standards of efficacy are in conflict with moral standards, they still form laws, but they cease to be moral standards. Hart agrees that the eight principles suggested by Fuller are necessary conditions for creating rules of law, but he does not think that they demonstrate any conceptual connections between morality and law.

Hart was right when he said that some principles leading to law are not moral, but he does not also deny that some moral principles are essential conditions for creating laws. After all, most of the eight principles suggested by Fuller reflect moral standards of fairness and freedom. Labuschagne & Sonnenschmidt (2009) suggest that Fuller’s principle of public promulgation can be considered as both an internal standard of efficacy and a moral ideal. Defined as the standard for determining what is wrong or right, morality makes public promulgation of rules a morally right duty for the government because it enables the public to understand what they are required to do in given circumstances to demonstrate the right behaviour.

From a moral perspective, it is wrong for a state to implement bad rules such as poisoning. According to Hart, poising can provide a standard of efficacy. However, Fuller did not include such negative standards in his formulation because they are inconsistent with moral ideals. In this regard, Fuller’s principles of legality are consistent with moral ideals; and any standard of efficacy that results in inconsistent and retroactive rules of law are not necessary conditions for the validity of laws. After all, laws that seem to impose retroactive rules and regulations to limit freedoms and rights are challenged by many countries in the modern world. Nowadays, democratic ideals have adopted moral standards in their legal formulations to enforce positive behaviour and duty in society and minimise conflicts and crime.

The critics of positivism argue that the most important aspects of law are not contained in its source-based and facticity approach, but on its capacity to promote justice and common good, protect human rights, and enhance good governance based on integrity. The reasons for establishing, changing and maintaining laws include moral reasons, e.g. preventing people from killing each other or stealing from each other. These reasons shape the concepts of law; hence law is not separable from morality as suggested by positivists.

In the current world, there is a growing concern for the protection of human rights, duties, responsibility and freedom. The ideal role of the government is no longer to maintain peace as suggested by Hobbes, but also to protect the rights and freedoms of citizens as suggested by John Locke. The ultimate goal of the state in democratic systems is to promote the welfare of the people. It is on the basis of this moral principle that the people have demonstrated the desire to be involved in decision making processes and policy implementation so that their interests can be fully addressed.

Democratic countries have allowed their citizens to participate in voting exercises to enable them choose leaders who can represent their interests. The legal principles of public participation are envisaged in the constitutions and various other legislations. Therefore, the law has now embraced the moral responsibility of the state to create laws that promote the welfare of its citizens.

In this regard, the ideal laws of the state should be based on the principles of morality to enhance good behaviour, justice and fairness in all aspects of the state. Apart from voting rights, moral laws also protect people’s rights and freedoms to pursue their full potential. In this regard, countries such as the UK have laws that give people the equal rights to education, health, and other social services. Retroactive laws that deny people such rights and freedoms are immoral, and cannot their primary role of regulating behaviour because the people are bound to oppose them, leading to chaos rather than peace and stability.

Indeed, positivism has contributed significantly to understanding of the relationship between law and morality. Positivist thinkers such as Hart and Hobbes argue that the law and morality are separable because laws can be formulated, changed and maintained through facts and standards of efficacy without necessarily thinking of moral standards. However, Fuller argues that laws are fundamentally the products of morality. He identifies eight moral principles that are essential conditions for the validity of legal systems. However, Hart disputes these principles as standards of efficacy. Hobbes also supports the positivist thinking by suggesting that sovereign governments have the responsibility to make laws that promote peace, regardless of whether they are just or unjust in the eyes of the public. However, in modern democracies like the UK, morality and law are inseparable because governments pursue laws based on moral principles of rights, responsibilities, accountability and duty. The purpose of governments is to promote people’s welfare and justice; hence moral standards should be included in the process of making, changing and maintaining laws to promote people’s freedoms, rights, and welfare.

Bibliography

Boyle J, ‘Thomas Hobbes and the Invented Tradition of Positivism: Reflections on Language, Power, and Essentialism’ [1987] University of Pennsylvania Law Review 383.

Fuller LF, The morality of law (Yale University Press 1964)

Gardner J, ‘Legal Positivism: Five and a Half Myths’ [2001] The American Journal of Jurisprudence 199.

Green L, ‘Positivism and the Inseparability of Law and Morals’ New York University Law Review, 1035.

Hart HLA, The concept of law (Oxford University Press 2012)

Hart HLA, Hacker PMS, & Raz J, Law, morality, and society: Essays in honour of H.L.A. Hart (Clarendon Press 1988)

Kammerhofer J & Aspremont J, International legal positivism in a post-modern world (Cambridge University Press 2016)

Labuschagne BC & Sonnenschmidt R, Religion, politics, and law: Philosophical reflections on the sources of normative order in society (Brill 2009)

Posner, EA The twilight of human rights law (Oxford University Press 2014)

Schauer F, ‘Was Austin Right After All? On the Role of Sanctions in a Theory of Law’ [2010] Ratio Juris, 1.