A Question for our Lawyers and Legal Experts
January 28, 2009
Is there a necessary, conceptual connection between law and morality or are all real connections between the two merely contingent?
Yes, this is the old legal positivism vs. natural law debate, but I am curious to hear from our Catholic lawyers and legal experts on this.
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I guess it depends on what you mean by ‘necessary’. Do you mean is it necessary from a normative perspective(i.e. should there be a connection?) or a descriptive perspective (is their necessarily, in fact, a connection)?
There is a necessary connection between law and morality, though the nature of that connection has often been misunderstood. To understand what law is, one has to look at it not only from the external perspective (people tend to obey a given social rule or law with regularity) but also from the internal perspective (people feel that they are bound to follow the law, and don’t simply do so out of habit). Understanding law from the internal perspective requires an acknowledgment of the moral purposes which law is designed to serve, and in that sense any full account of law is going to have to make reference to those purposes, and any law which does not meet those purposes will be to that extent defective qua law.
For a fuller treatment of this line of reasoning, I would recommend the first chapter of Finnis’ Natural Law and Natural Rights.
On law, I always like to go back to Aquinas: an ordinance of reason for the common good made by him who has carfe of the community. It is not about regulating morality- thus Aquinas was able to argue that keeping prostitution legal could further the common good, and Murray followed this up with contraception.
Actually St. Thomas did think that regulating morality was part of the purpose of law. For example, in the Summa, II-I Q. 92 art. 1 he says:
This doesn’t mean, however, that the law ought to prohibit every immoral activity, as one must take account of the practical considerations that apply in a given time and place. From the Summa II-I Q. 96 art. 2:
Cathleen Kaveny of Commonweal has written that many debates over abortion are actually debates over the purpose of the law. I hope I don’t misrepresent her, but she says there are two approaches: the law as a teacher of virtue and the law as a “marshal in the Old West.” If I had time today, I would write some deep thoughts. But to the extent that I understand the two approaches, put me down for the latter. It seems to me that if the law is used to be a teacher of virtue, one has to decide whose virtue. It also seems to me that if laws were to teach virtue, there would be no objection to laws that were nearly impossible to enforce.
I think that Prof. Kaveny (who, incidentally, taught me contracts in law school) is wrong here. Ron Paul, for example, is probably about as “marshal in the Old West” a kind of guy as you’re likely to find in the U.S. today. Yet he’s also pro-life. The real issues lie elsewhere.
Not being a lawyer or student or teacher there-of, I will hesitatingly answer that the connection is necessary. It seems discussions focus primarily on codified law. If we are to speak of just codified law, than I believe the case could made that there is no connection. I don’t believe one can discuss such as custom though without law being directly tied to morality.
BA: From what I understand of Finnis I think that his view is perfectly compatible with positivism, isn’t it?
From what I understand of Finnis I think that his view is perfectly compatible with positivism, isn’t it?
That’s right. Finnis says that legal positivism a la Hart’s The Concept of Law is true but incomplete.
I’m not sure I know what is at stake in the debate over natural law and legal positivism. As I see it, there are two claims we want to be able to make about law. First, we want to be able to say that certain laws promulgated by the appropriate authorities are nonetheless unjust. Second, we want to be able to say that we are sometimes justified in disobeying unjust laws. Whatever force natural law thinking has comes from the notion that legal positivism cannot make these two claims. But that seems wrong to me. There is nothing in the claim that the law is whatever the appropriate authorities say that it is that prevents us from making these two claims. But maybe I just don’t understand the natural law position very well – I’ve not studied the Hart/Dworkin debate, for example.
Any system of laws must be justified from a perspective outside that system; it would be silly to make a law saying “You must take the law seriously”.
So in a minimal sense, it seems that the law must be justified on a prior notion of fairness.
On law, I always like to go back to Aquinas: an ordinance of reason for the common good made by him who has care of the community. It is not about regulating morality…
What BA said. Your characterization is only true if there is no necessary relation between the common good and morality.
Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like.
[From BA's earlier quotation from ST I-II 96.2]
Just a side note, the rationale behind the bolded section above is reflected in the following statements from Evangelium Vitae- statements which have been alluded to here in the past:
Certainly the purpose of civil law is different and more limited in scope than that of the moral law. But “in no sphere of life can the civil law take the place of conscience or dictate norms concerning things which are outside its competence”, which is that of ensuring the common good of people through the recognition and defence of their fundamental rights, and the promotion of peace and of public morality. The real purpose of civil law is to guarantee an ordered social coexistence in true justice, so that all may “lead a quiet and peaceable life, godly and respectful in every way” (1 Tim 2:2). Precisely for this reason, civil law must ensure that all members of society enjoy respect for certain fundamental rights which innately belong to the person, rights which every positive law must recognize and guarantee. First and fundamental among these is the inviolable right to life of every innocent human being. While public authority can sometimes choose not to put a stop to something which-were it prohibited- would cause more serious harm, it can never presume to legitimize as a right of individuals-even if they are the majority of the members of society-an offence against other persons caused by the disregard of so fundamental a right as the right to life.(~71)
Laws which authorize and promote abortion and euthanasia are therefore radically opposed not only to the good of the individual but also to the common good; as such they are completely lacking in authentic juridical validity. Disregard for the right to life, precisely because it leads to the killing of the person whom society exists to serve, is what most directly conflicts with the possibility of achieving the common good.(~72)
It is impossible to further the common good without acknowledging and defending the right to life, upon which all the other inalienable rights of individuals are founded and from which they develop. (~101)
“The natural law … provides the necessary basis for the civil law with which it is connected, whether by a reflection that draws conclusions from its principles, or by additions of a positive and juridical nature.” – The Catechism of the Catholic Church