Connection Between Law and Morality

Question: Discuss about theConnection Between Law and Morality. Answer: Introduction Law cannot be viewed in isolation form the social and political values of the day. Even when in most cases, law is inferred from interpreting legislation, the Constitution and Judicial decisions; the moral and political practice of the society is essential in establishing the rules that should govern people in a many spheres of life. This is a position which is strongly backed by natural law philosophers who opine that law must be concordant with moral underpinnings of a society.[1] One of the greatest proponents of natural law is Lon L. Fuller who elaborately discussed the essence of moral law through his famous postulates of procedural morality. This paper intends to discuss why law must borrow from moral and ethical principles using Fullers philosophical conception of law and morality. Background Information There are two main theoretical frameworks within which law is characterized. First, there is Natural Law, and then legal positivism. Natural law implies that laws normative power stems from a number of axiomatic principles which are innate in human nature.[2] As such, law is generally informed by religious principles; morality and other conventional norms. On the other hand, legal positivism stipulates that a law is only valid if there is an authority behind it. According to Jeremy Benthams conception, there must be a threat backed by a sanction in case of non-compliance. Without such enforcement authority, then words remain statements and not law.[3] Aside from these two main theories, there are many other theories like sociological jurisprudence, legal realism and pure theory of law. The conception of legal positivists also implies that the only rules that can be considered as law are those which have been posited by an authority; those which are written in black and white within l egal documents. Any rules which are not sanctioned by an authority cannot be regarded to have any normative force within the society.[4] The position that law should only be drawn from that which is written by the authorities has however come under strong opposition. According to Cotterrell, the law must always be apprehensive of the happenings in the society. In addition to this, Judges are always faced with cases which do not have a precise answer in the law. Therefore morality and politics should be invoked to fill in the grey areas.[5] Fullers Conception of Law and Morality Lon Fuller was an American Jurist who devoted most of his scholarly life establishing the relationship between law and morality.[6] Much as his arguments are often associated with natural law, Fuller did not conform to the conventional natural law approach that holds that all unjust law is not law at all. He never explicitly subscribe to this position.[7] Natural lawyers generally assert that there are certain objective moral principles which exist according to the nature of the universe and can be discovered by reason. In this case a proper legal system cannot exist if it is not guided by any religious or moral fabric. Fuller advances this argument by distinguishing these natural rules from the general practice that is adapted by people who are aware of their needs in the society in a bid to further their welfare. Both of these forms of rules essentially guide day to day human activity even though they are not sanctioned by the authority. In his theory, Fuller stipulates that there is external and internal morality of law. According to him, while external morality entails the fairness and justness of law and its impact to the society; internal morality is an order of law which is contained in procedural natural law.[8] His specific focus was on the inner morality of law whereby he enlisted eight principles which a law should satisfy for it to meet the threshold of having internal morality. First, the laws must contain a set of ongoing rules governing human conduct which are expressed in terms generally known to the people. Secondly, the rules must be of progressive effect and not retrospective in application. Thirdly, the laws must be publicly promulgated so as to notify people of the obligations and duties imposed on them by the laws in question. Also, the laws must be intelligible, explicit and expressed in a manner that is easily understandable by the persons subject to them without any ambiguity. The fifth rule is that the laws should be consistent at all times with other existing laws and not contradict each other. In addition to this, the rules must be crafted in a way that makes it possible for the people to obey them. In this case, the laws must make realistic demands to the people. The seventh rule is that once a law has been enacted, it must remain as constant as possible so that the people can easily predict how their actions can be sanctioned unlike if the laws governing a concept are changed so often. Finally, the administration and enforcement of the said rules must be always consistent.[9] The Nexus Between Fullers Postulates and Contemporary Legal Systems Natural lawyers argue that since the law draws from nature, it is universal and cannot be changed because it is an edict of God. The implication of this statement is that even if the authorities or government of the day does not recognize natural law; it still exists because these principles are innate and are shared by the whole society. Therefore governments should endeavor to incorporate these principles into law and enforce them so as to achieve justice. From this background, this theory further asserts that anything that does not comply with standards of natural law is bad law and ought not be enforced. The question of whether a law can be classified as good law and worth applicability can only be answered through judicial interpretation. Lon Fuller explained this concept through his hypothetical scenario of the Spelucean Explorers Case.[10] In this case, he establishes that Courts are often faced with hard decisions to make in situations where a strict application of written la w would result in outright injustices.[11] From this background, it is imperative that a more objective source of law is invoked so as to fill in the gaps or rectify holes in posited law. That is where morality comes in. The legal regime in Australia borrows heavily from common law principles which have been in effect for a very long period. These rules are often framed in very general terms which leave a great discretion for the Judge to ascertain the threshold of applicability. For instance, the renowned standard of a reasonable man is an arbitrary impression which has to be determined by a judge according to the perception he has created over a certain matter.[12] On top of this, it is also noteworthy that Constitutions of most legal systems are expressed in general terms so as to allow for a much more expansive interpretation of these documents.[13] This notwithstanding, in many jurisdictions, specific statutes contain provisions which are straight forward in their wording in order to avoid any ambiguity. This is clearly concordant with Fullers position that laws should not be expressed in general terms. One feature that is notable with Fullers postulate is that he did not arrange the eight rules following any order of precedence. Instead, he mooted for an informed balancing process that can lead to all the rules to be applied in equal measure. The problem with this is that in many cases, enforcing all these rules may be impossible because some are likely to conflict with each other. In this case, a lawmaker is entitled to employ discretionary powers with a view of subordinating some of the rules so as to achieve a greater societal goal. It is important that such discretion is arrived at after the lawmaker has examined all the eight rules and their intended goals before deciding on precedence because it is very crucial to the viability of the laws.[14] In that case, the most important procedural rules have to be given preference over all the rest. According to the scholar, each one of the eight principles should be regarded as essential desideratum. As mentioned earlier in this paper, he did not entirely agree that there exist certain axiomatic rules laid down by a Supreme Being, with which all laws ought to conform for them to be regarded as good laws. His view is that law is terrestrial and a creature of mankind aimed at addressing what mankind wants.[15] In light of this, laws are made with the sole intention of promoting the greatest public good in the society. Also, the fact that the principles enumerated by Fuller are objective in nature and in tandem with the general moral stipulations; it is often argued that this theory is essential in checking whether enacted laws satisfy the moral test that all rules have to pass for them to be regarded as good law.[16] Therefore, a Judge should first examine a law in light of the eight principles so as to ascertain whether its enforcement would result in an infringement of the inte rests of the people.[17] Lon Fuller also unequivocally dissociated himself from any impression that may be made that he subscribes to the legal positivists school of thought. This is evidenced through his definition of law where he stated that law is an element of subjecting human conduct to governance of rules.[18] This definition explicitly omits the aspects of force and coercion which legal positivists hold that they must be present for any set of regulations to be called law. Positivists believe that for rules to be law, there must be a threat which is backed by sanction and this is the only assurance that the said rules will be well administered and applicable to all people. Fuller generally posits that laws are made to regulate human activity with an intention of achieving the objectives of the society and there are two types of laws.[19] There are formal laws which are initiated with the backing of the government of the day. There are also other directions which are given by persons who cannot compel enforcement but are nonetheless applicable. Both of these sets of laws according to Fuller, must satisfy the eight requirements for them to qualify to be called proper laws. About the precise relationship between law and morality, Fuller decided to divide the term morality into four different categories and subsequently create a two diametrically opposed conceptions of morality. He pointed out that there are two major types of morality; morality of aspiration and morality of duty.[20] Morality of aspiration is informed by the generally accepted principles within a society which people believe that they are the right behavior if the society is to achieve certain goals. This type of morality is has been widely likened with ethics because in ethics, people decide on taking up a given practice not out of coercion but on their own volition because they acknowledge the positive outcome associated with doing so.[21] On the other hand, morality of duty is now morality in its conventional sense. It is a set of principles which are set out by a supernatural being with an aim of guiding the society. The implication of morality being a duty is that people end up con forming to moral principles not necessarily out of will but for fear of sanctions from a higher moral authority. The two sets of law could often be conflicting amongst themselves. In the same way that natural lawyers would view a command of the sovereign to be inconsistent with moral principles and thus not qualified to be law; at times the morality of aspiration may make directions that are contrary to the morality of duty. According to Fullers exposition, morality of aspirations encompasses all regulations which are meant to further mans best interests.[22] Legal principles under this type of morality have to depict the true colors of the people and realize the best out of the potential of all persons. The morality of duty however, establishes minimum standards which are essential to facilitate orderly and smooth functioning of the society. Therefore, legal principles which are formulated with the objective of promoting order in the society should always be in line with the morality of duty. General determination of how appropriate human conduct is must however be left to the morality of aspi rations. Having established this background, Fuller strongly defended the fact that human endeavor should not be regulated wholesomely by law but instead, general societal norms also have a role to play. He cautioned that there should be utmost restraint while making laws that are meant to govern the conduct of individuals. In addition to this, he insisted that the lawmaker ought not to confuse the morality of duty with morality of aspirations.[23] Ascribing to the teachings of classical natural law, Fuller cautioned that it is important that the morality of duty is referred to while making laws, because considering morality of aspirations might greatly inhibit proper utilization of the law and lead to creation of unsatisfactory legal principles. If the law is predicated upon the morality of aspirations, then the society risks coming up with a body of too many rules which deal with all types of human activity. A legal system that has this much of specificity could hamper the achievement of fu ll potential by normal citizens. Such laws according to Fuller, are likely to regulate experimentation, prevent one from putting all his talents into good use, and prohibit freedom of action which essentially is against the best interests of a human being. The scholar also opposes the position that law is only that which is posited by the sovereign and enforced by threats and sanctions. Not all legal provisions whose compliance is forced on people by powerful figures deserve to be called law. The fact that a sovereign has issued a command does not imply that the directive will be followed or obeyed by all people. That is why in many countries, anti-gambling laws are rarely followed by citizens in many countries. Further to this argument, legal positivists have also not come out to explain the reason as to why there are some rules which are just followed without a threat or sanction being directly attached. For example, many people find themselves obeying traffic rules especially when crossing roads, not because the rules are extremely friendly to them but because they believe that there is much to gain when obeying the laws than when they fail to do so. The people who obey laws not out of fear of sanctions generally believe that the ru les in question are good. Conclusion This paper has established that at all times law makers and interpreters cannot maintain a clean break from moral and political considerations while breathing life to rules and regulations in the society. In the course of his scholarly works, Lon Fuller appreciated that not all human aspects can be regulated sufficiently by law. Therefore, in most cases, the work of judges involves giving directions about certain grey areas within the law. The question that always rings in this respect is where does the judge get the guidance within his mind to give directions over a matter that has never been posited or provided for within the text and practice of the law? According to Fuller, Judges often invoke both the morality of aspirations and morality of duty in a bid to reach an informed decision that is fair and reasonable according to the best objective standards. Therefore, the moral beliefs of a given society and their collective goals help to shape the law at all times, even when the wr itten law makes clear stipulations. Bibliography B Macleod-Cullinane, (1995) Lon L. Fuller and the Enterprise of Law, Legal Notes 1995) No: 22. Cotterrell, Roger, The politics of jurisprudence: a critical introduction to legal philosophy 2nd ed, (Philadelphia: University of Pennsylvania Press, 2003). Fuller, Lon L., Positivism and Fidelity to the Law A Reply to Professor Hart , 71 HarvardLaw Review 630-72 (1958); reprinted in Feinberg and Gross, Philosophy of Law, pp. 81- 102. Fuller, Lon L., The Case of the Speluncean Explorers, Harvard Law Review, Vol. 62, (1949): pp. 616-645; reprinted in Feinberg and Gross, Philosophy of Law, pp. 530-545. Fuller, Lon L., Legal Fictions, (Stanford, California: Stanford University Press, 1967) The Principles of Social Order: Selected Essays of Lon L. Fuller, edited with an introduction by Kenneth I. 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