Morality and Law (PHIL 280.001)

Every time you act, you encounter social constraints on your behavior: there are choices which are open to you and others which are not. For instance, you can choose to go or not to go to a birthday party. But if you do go, you should bring a gift. You can choose to socialize or not to socialize with other people, but if you do socialize, you have to be polite. You can choose to answer or not to answer a question someone has asked of you. But if you do answer it, you ought to tell the truth. You can agree or refuse to serve as a witness in court, but if you do agree, you must not give a false testimony. What is the source of these constraints on human action? Why is it that there are things which one “ought to do” or “ought not to do”? Most briefly put, the answer is that there are norms governing human interaction. Some of these norms are moral (“You ought not to lie”), others – legal (“You must not to commit perjury”), yet others are a matter of social conventions (“Whenever you go to a birthday party, you should bring a gift”), or rules of etiquette (“When you talk to someone at a party, you have to be polite, you cannot say things like, ‘I think you are a really boring person.’”). Legal norms are unique among norms in being backed by State power. All other kinds of norms are reinforced through informal mechanisms such as social pressure. Thus, if you are impolite to people, you will earn bad reputation – the bad reputation is society’s punishment for your impoliteness and its attempt to make you change your ways. But you won’t have to pay a fine or serve jail time for being impolite. If you commit perjury, on the other hand, you can go to jail. So it appears that legal norms are of great import to us– they matter so much that we don’t leave their enforcement to informal social mechanisms, and we employ the coercive power of the State in order to ensure compliance. But what are legal norms and what, if anything, gives them the authority to command our obedience? Do they derive their authority from the authority of the legislator or does legal validity have some other source? Why should we obey legal norms? Is it just to avoid punishment or is there some other reason? And should we obey every law, regardless of what it demands of us or should we obey only the laws we consider just?

These are some of the questions we will discuss in this course. The tradition of legal philosophy offers, very roughly, two different kinds of answers to these questions. One type of answer starts with the observation that legal norms are created directly by rational human agency and can be changed by legislators (this is another way in which legal norms appear to differ from norms of other kinds). From here, some legal theorists – generally known as legal positivists – have proceeded to argue that law is grounded in social facts, and that legal norms are valid when issued by someone who has the power to issue them (in an absolute monarchy, that “someone” may be the sovereign; in a democracy, it is the legislature).

There is an alternative theory. It is known as the “natural law” theory, and it starts from the premise that some laws issued by a power with the authority to make laws may nonetheless be morally unjust. Should we obey them? St. Augustine once wrote, “Unjust law is not law,” and natural lawyers have followed suit. According to them, legal norms are grounded in moral norms. This means that collectively, we ought to strive to make our laws morally just, and as individual citizens – we may be permitted and sometimes even obliged to disobey an unjust law on moral grounds. Natural law theorists respond to these arguments by saying that unjust laws are still laws.

Who, if anyone, is right in this debate? This is one of the main questions we will seek to answer. There are other questions we shall address. For instance, the question of objectivity in law and morality: moral norms can only serve as an adequate ground for legal norms if they themselves are grounded in objective facts. But is morality itself objective or is it a social artifact, in the way in which rules of etiquette can be said to be? Or consider another question: regardless of whether morality is objective or not, the spheres of law and morality, while they largely overlap do not exactly coincide. Roughly, not everything immoral is legally prohibited (it may be immoral to be rude to your parents, but it is not illegal), and not everything illegal is immoral (it may not be immoral to steal bread to feed your starving children, but it is illegal). What determines just which moral norms have to be codified in the form of laws and backed by the coercive power of the State?

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