Wednesday, 22 January 2020

Legality is not guidance to morality

There are a number of issues about the relationship between morality and law in any pluralistic, secular democracy. Among them are whether legislation should reflect moral principles, whether judges should interpret laws in light of moral values and principles, whether laws should enforce morality, whether laws are binding if they do not reflect moral principles, whether it is moral or not to disobey bad laws, and what gives law its authority. 
  • Normally laws are desired to be crafted carefully and with regard for our moral notion of justice and fairness and with utilitarian regard to their fostering good, rather than harmful consequences. 
  • Not all morality is enshrined in the law. Many unfair and wrong business practices are not anticipated and were not made illegal until someone invents and uses them in a way mistreating others. These practices are wrong and immoral from inception, but not illegal until law catches up to them. 
  • In a sense morality is complete and applies to all acts, but the law typically is incomplete and only applies to behaviors legislation has already addressed. 
  • Law has to be invented or manufactured but morality only has to be recognized. Laws do have loopholes but morality does not have loopholes. It is impossible to make a complete set of laws that anticipate, enumerate, fully describe, and forbid every possible specific wrong behavior. 
  • Upholding morality is not the main purpose of most laws. Most laws are there to maintain order and safety or to promote efficiency. Laws are never meant for moral guidance.
  • Traffic laws are not based on morality. They are moral because they are a way of promoting social benefits of a certain kind in an optimal way. 
  • There are some government programs set up by law that simply harmed the people they were intended to help, such as aspects of the welfare rules that ended up trapping people in poverty rather than assisting them to escape it. 
  • Not all morality should be enshrined in law, because enforcing some morality would be far worse than not enforcing it. 
  • Society has a legitimate right to enforce morality in preventing great harm, it need not and should not make everyone do the right thing all the time. 
  • What makes people voluntarily obey laws --  they believe the law is in conformity with what is morally right (or if it is a procedural law, it does not conflict with what is right) and is just and beneficial.
  • It is always possible that people will obey the bad laws of any government out of fear or risk of punishment or reprisal. But that does not give law rightful authority. They have the power, but not the authority. 
  • Many morally good people will disobey laws they think are very wrong, either in a form of civil disobedience, or in order to get away with it because they believe the law does not have moral authority then. And if the government passes sufficiently many bad laws it will lose obedience by rebellion or revolution, because citizens will believe that the laws and the government are too immoral to have any authority that deserves their obedience.
The law is something like a formal system of rules and procedures that is meant to invoke and instantiate our moral sense of justice. People have an expectation for law to try to do that in the best way it can, so that even with institutional and administrative limitations, the law gives the most morally optimal results that can be achieved. The law should always be trying to live up to that expectation, not acting as, nor trying to be, a substitute for it. 



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