Chapter 8Law and Morality
8.1 What is at Stake?
There is no question to which philosophy of law has devoted more attention thanthat of the relationship between law and morality or, in other (controversial) terms,of the relationship between right and good. One could maintain that all thatthere is to say has been said. Nonetheless, philosophy and philosophy of law isno exception is exactly this: the rethinking of new problems which are in factalways old ones, to which, I would add, there are no definitive solutions. They thusrequire continual attempts at redefinition. In philosophy one is continually begin-ning again.1 When engaged in this endless task, however, there is no need for eitherdisillusionment or despair; it is neither futile nor useless. There are indeed solutions;but they cannot be stored or stockpiled or frozen or codified. A solution in phi-losophy to be such should be revived through discussion, and in any new discussionfurther arguments are possible, and everything or nearly everything here then startsagain from the beginning.
The apparently inconclusive nature of philosophy is determined not only by thesubjects that it is called to deal with, but also and primarily by its own particularstandpoint. This is to use Thomas Nagels expression2 the view from nowhere.Philosophy is by nature counterfactual and distinctly normative: it is not alwaysreally feasible for a brute fact to falsify a fundamental philosophical assumption.This is not meant as an idealistic claim or a glorification of old-style metaphysics.What I want is simply to underline the special character of the intellectual endeavourthat is usually labelled philosophy.
Above all, even though lawyers frequently look at philosophy in an ironic conde-scending manner, it is good to underline the practical relevance of controversy aboutthe relationship between law and morality; it is not a simply an academic question.At least three questions spring to mind in relation to the problem that occupies usnow: Why do we have to obey the law? What is the legitimate content of the law?
1Cf. Helmut Plessners introduction to Das Fischer Lexikon Philosophie, ed. by A. Diemer andI. Frenzel, Frankfurt am Main 1965, p. 10.2See Th. Nagel, The View From Nowhere, Oxford 1987.
231M. La Torre, Law as Institution, Law and Philosophy Library 90,DOI 10.1007/978-1-4020-6607-8_8, C Springer Science+Business Media B.V. 2010
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Or rather, is the law whatever the effective political authority wants to be law? Whattype of issues are legitimate or valid in legal reasoning? Or rather, in a legal processcan we as lawyers, judges or citizens, use extra-legal moral arguments as validreasons for making a legal decision? Or, said differently, are there moral argumentsthat serve as legal reasons? They are all, as is clear, questions essential to every-day legal work. The nature of law and legal reasoning are not distant and unrelatedissues; on the contrary they overlap and perhaps are even one and the same problem.
The conception of the relationship between law and morality is revealed asof central importance in one specific, significant area of law, that in which lawis often identified tout court and that which gives it a truculent fame: criminallaw. Theories of crime, of that which should be prohibited and legally punished,obviously require detailed awareness of that which is morally acceptable and thatwhich is illicit. It thus requires a articulated theory of morality. As that which ismorally speaking illicit doesnt necessarily (logically) have also to be legally illicit,it requires a distinct awareness of the nature of the appropriate relationship betweenlaw and morality. Should the punishment be retribution and expiation? Or should itbe directed at the re-education of the criminal? In order to answer these questionsone needs to start with a conception of the relationship between law and morality,and ultimately with a conception of morality.
In this final chapter it is not my intention nor my task to answer all of thesequestions. Here they are a point of arrival, not a point of departure. I use them inorder to justify and defend myself from the accusation of futility that in a LawSchool is continually endangering legal philosophy. That which I intend to do is topull together some of threads of that said in the preceding pages (by now perhapsalready too much for the reader) and to unveil the meaning of my effort, its Witz.It is not, in accordance with its aims, a merely academic effort.
8.2 Definitions and Distinctions
In the first place I need to trace some distinctions and propose some definitions.Some of these are already established. Above all the distinction between ethics(the study of morality as a philosophical discipline), morality (as critical moral-ity, the moral attitude endorsed by individual conscience) and positive morality(the socially dominant morality or the morality concretely adopted in a certainhistorical moment by a determinate human group). One could also here distinguish against what I have done in a preceding chapter3 between ethics and morality.Although it is not unusual to merge morality and positive morality as variousmembers of the Vienna Circle such as Moritz Schlick4 attempted to do , morality,as we have seen in the preceding chapter, is reflexive and strongly normative andit cant be derived from or confused with unreflective conduct, for example simple
3Cf. above Chapter 6.1, pp. 169171.4See M. Schlick, Fragen der Ethik, Frankfurt am Main 1984.
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regularity of behaviour or mere habit. Morality transcends every concrete state ofaffairs, every situation of fact; it cannot therefore be deduced from these. Moralityhas a clearly individual character (even though not necessarily individualistic): itsultimate point of reference is the individual, who asks whatever the others thinkor do What is the right thing to do?, or rather, What should I do? . Even if bymorality is meant positive morality, as dominant practice, it is still possible alwaysto distinguish two aspects: the internal and the external. If from the externalpoint of view positive morality is still an observable sequence of conduct and it canbe conceived as a collective activity, the internal point of view actually refers to theintensional activity of the individual and primarily individual activity (it refers tothe propositional meaning of the judgments with which one expresses the contentof positive morality).
Here, as has been said, morality that is positive consists of a combination ofjudgments and principles assumed as valid, that dont refer back to the positivemorality, but rather are considered part of an ideal and critical morality.5 The indi-vidual is invested with concern for the right thing to do, not insofar as she carriesout a particular social role as a student for example, or a judge, but rather simplyas a human being. This doesnt mean that the individual doesnt enter into moraldebate as the real individual that she actually is, with all her social roles and herspecific institutional obligations. Also, it doesnt imply that there are not specificmoral obligations deriving from the enacting of certain function or the playing ofa social role. It means only that the individual can refer to an ideal type of func-tion and role, and then compare this to her specific concrete obligations with moregeneral obligations and decide which criteria should prevail. Such a comparison isalways possible, not just as the result of a certain abstraction and idealization ofour personal conception of myself, of our normative vision of ourselves, but alsobecause our myself is never, in any society, identical to our social identity. Thedisjuncture and gap between my topics and those of society result from the factthat we are subject to a deeper degree to the action of time than society and othercollective entities. Subjectivity is identity in time, and the time of the individual andthat of society dont coincide perfectly. There is a time-discrepancy between mensprivate lives and the altogether different life-expectancy of the public world.6 Tobluntly express this idea, man alone tends towards destruction, to death; and theworld, humanity, to life.7
The individualistic nature of morality does not mean that human beings haveto decide moral questions without taking into consideration the interests of others,or without discussing things with them. This (moral) discourse, however, is not areality in itself, a Luhmanian system that is self-sufficient and self-contained. Thisis the case, since, even if morality is based on the intrinsic logic of the linguisticpractice (something in the vein of Habermas discourse theory), the moral point of
5C. S. Nino, Derecho, moral y poltica, Barcelona 1995, pp. 4647.6H. Arendt, On Violence, in Id., Crises of the Republic, Harmondsworth 1972, p. 139.7M. Aub, Campo francs, Madrid 1998, p. 14.
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view is something that cannot be assumed without the conscious, intelligent andintentional contribution of the individuals concerned. Speaking about morality inholistic terms is excluded. From the cavern of prejudices and rules followed due toimitation or tradition people exit gradually and one by one.
Here it could be also important to confirm a distinction that is much used in philo-sophical debate that between ethics and meta-ethics. This was presented above, butit needs to be confirmed. Metaethics is a meta-language that deals with the languageof ethics. It is worth saying that it is a second-order language whose contents dealonly with non-empirical entities sentences, propositions, judgments and meanings.If for any reason the reference to non-empirical entities is worrying we can reformu-late that distinction saying that a language deals with non-linguistic entities, whereasa meta-language deals with linguistic entities. Metaethics thus becomes logical anal-ysis, epistemology and ontology of ethical judgments, that is of the sentences ofwhich an ethics is composed. With reference to the meta-ethics, ethics accord-ing to the definition above no longer means the philosophical study of morality,or even of a particular sector of morality, rather it coincides with sphere of morality.Ethics and morality in this context overlap and become synonyms.
There are those who propose distinguishing between moral questions and ques-tions of justice, although in the majority of natural languages just and moralare in the same linguistic field and can be used as equivalent in certain contexts.The concept of justice would be reserved to those questions that in a way dontconcern the entire personality or existential condition of a human subject but arelinked only to rules and actions, and in another way are concerned with the alloca-tion and distribution of costs and benefits. One can adopt the following definition,perhaps with the condition that one drops the reference maintained to personal qual-ities: Justice is that character of actions, actors, rules or systems of rules, wherebya good scheme of allocation and compensation of costs and benefits is implementedor guaranteed.8 Indeed, justice and morality are not fully distinct notions; questionsof justice are more plausibly but special cases of moral questions.
It remains to be explained why to exclude the personal qualities of individualsfrom the area covered by justice. There may be moral, epistemological and logi-cal reasons for so doing. I will leave aside moral reasons and refer only to the twoother types. First, the qualities of a person, at least those that are relevant for a moralevaluation of her conduct are revealed only through the action of this person. In thissense anything said about the moral qualities of a person is derived from an evalua-tion of her behaviour. Furthermore, an argument based on the idea that one is givenmoral qualities such as these could perhaps lead to a Naturalistic Fallacy, to theinference of normative consequences from descriptive sentences. If moral qualitiesare not qualities of actions they can be interpreted as a sort of internal, natural orpsychological property of individuals, or even as a species of object with an impre-cise (and indeterminable, I fear) ontological status. In the first case psychology andmorality would be strongly linked, in such a way that it would be possible to derive
8R. Dreier, Recht-Staat-Vernunft. Studien zur Rechtstheorie 2, Frankfurt am Main 1992, pp. 1213.
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a moral judgment from the a certain trait or from the psychological character ofthe person. This would however constitute the deduction of a normative sentencefrom a descriptive one, and thus it would be a case of Naturalistic Fallacy. We couldnonetheless reinterpret the moral character of a person as her virtue, and con-sider the latter a general disposition or a habit gained by training to act followingthe appropriate and valid moral principles.
Finally, it is important to distinguish between a weak and a strong normativestandpoint. The first expresses the ideal of, or the claim to, correctness: conduct hasto be effected in a way so as to conform to certain criteria of rightness. Given acertain praxis governed by rules, for whoever is involved in, or committed to, a formof that praxis there is the obligation of correctness, that is an obligation to observethe rules on which that particular praxis is built. Nonetheless, this obligation is not,unlike some, equivalent to a moral obligation. (For example, I dont have a moralobligation to put the verb in the second place in a phrase when I speak German; andyet in some other sense I am obliged to do so). It is the strong normative positionalone that expresses the ideal and the claims of morality. A statement is stronglynormative if it doesnt depend entirely on the factual circumstances of its issue, oron the empirical consequences of its execution, and is justifiable through means ofa universal or universalizable judgment.
There exists a normative standpoint that is sui generis or also as has beensaid detached.9 This is, in fact, expressed through descriptive sentences but itis normative insofar as it assumes the existence of norms or rules as a states ofaffairs in the world. Thus we could speak of the sui generis normative positionof an observer who, with the aim of describing a particular society, should takeinto consideration the system of rules of this society and avoid any evaluation ofthose rules in terms of moral validity. It is that which has also been called cognitiveinternal point of view.10 I set myself up as one who uses, and accepts, certain normsbut only in order to describe the conduct that derives from them, without committingmyself in any way to adopting these norms as criteria for my own conduct.
In a similar way one could speak, for example, of a normative or norma-tivistic institutionalism or realism, referring to the fact that the pe...