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The Relationship Between Law
and Morality: Distinctions and
Connections
Law and Other Normative Systems
Material vs Formal / Conceptual vs Categorical
Legal rules are not the only rules that regulate human behavior; there are other normative systems also fulfilling this function of social organization. Some behaviors are regulated by only one normative system, while others are regulated by more than one. Therefore, the description and distinction of these normative systems is required.
Social Treatment Rules and Their Description: Connections
and Distinctions with Law and Morals
Behaviors generally accepted by a social group or community can be labeled as 'social customs'. Social customs are classified as "not normative" when, despite being a general pattern of behavior, they aren't considered "required" behaviors by the group; they're social customs simply because they are regular habits of the individuals of that group (e.g. carrying out leisure activities during the weekend). The failure to comply with these behaviors doesn't generate any kind of adverse reaction by the other members of the social group.
Social customs of a normative nature are considered obligatory by the members of the group. If some of the members of this group move away from these social customs, an adverse reaction of the rest of the group may happen. These normative social customs, also referred to as 'social treatment rules', are an instrument of social organization, prescribing the behavior of the individuals (e.g. mourning).
Though social treatment rules are a normative system different from law, there are some connections between them. Social treatment rules are, in many cases, an initial platform in the consideration of certain behaviors as obligatory, so that the social group may be interested in demanding that behavior through legal rules in order for it to be supported by the coercion machinery of the state. In fact, much of the behaviors demanded by law were, originally, social treatment rules that were turned into laws. There are also behaviors that were initially demanded by law until they were later turned into social treatment rules, thus ceasing to be legally demanded.
Nevertheless, we must state certain canons to distinguish law from social treatment rules:
Heteronomy
Heteronomy (alien rule) is the cultural condition where actions are influenced by a force outside the individual. Thus, social treatment rules may be considered as heteronymous rules, because they are not created (and enforced) by the individuals that have to obey them, independently of their later acceptance. Here, social treatment rules may look like legal rules. Yet, we can distinguish between legal and social treatment rules: legal rules are created and enforced by competent authorities through appropriate proceedings, while social treatment rules aren't created by any competent authority, nor following an appropriate proceeding. Social treatment rules are simply produced and enforced by that abstract body that is the social group in a non-established way.
Temporal and Geographical Scope of Validity
Social treatment rules don't have a clearly defined temporal and geographical scope of validity. Thus, social treatment rules look like moral rules (traditionally described as autonomous rules (Kant)) and differ from legal rules.
Externality
Social treatment rules are depicted through "externality", meaning that external observance is enough in order to assert if an individual has adapted his/her behavior to what is prescribed in the social rule. Here again, social treatment rules look like legal rules and differ from moral rules, which demand 'internal observance'. I have to adequate my behavior to comply with the established norm independent of my opinion of said rule. Appearance of affability / social hypocrisy: to comply with social norms even if we don't wish to (e.g. being polite to a neighbor even if you hate him).
Sanctions
The obedience of social treatment rules is reinforced with "external sanctions", which might be a disdainful gesture of other members of the social group, the creation of a bad public opinion about the person who disobeys the rule, the marginalization of this person –ostracism-, etc. This is once again different from moral rules, reinforced with an "internal sanction" (remorse). We can also talk about a difference between social treatment rules and legal rules: though both are supported by "external sanctions", law uses an "institutionalized sanction", which means the content of legal sanctions is publicly and previously known; the competent authority and the appropriate proceeding to exert the sanction are previously and publicly known; there is proportionality between the sanctions and the seriousness of the breach on what law demands. Sanctions with moral rules are internal (remorse, etc.), while sanctions in social treatment rules are external (a bad public opinion). Law also applies external sanctions, but these are certain, established sanctions (institutionalized sanctions), whereas in social treatment rules they are not.
Conceptual Separation between Law and Morals (Kant)
Law and morals are two different normative systems, but even if we can make distinctions between the two, there are still connections between them. The model of conceptual separation between law and morals is the one we find in modern western countries. This model emerged during the 17th century, after the appearance of Protestantism and the breaking of religious unity. The need for peace led to the recognition of religious pluralism, thus creating a new model of relation between law and morals, which established a categorization of certain canons of distinction between the both (without denying the evident connections between them).
This model states that there are certain behaviors interesting only to morality, certain behaviors interesting only to law, and certain behaviors interesting to both law and morals. This model also states that every legal system contains a certain conception on morality and the acceptance of certain values. This approach insists that, despite the connections between law and morals, they are two separate normative systems, and that there is no necessary connection between them, being the qualification of a legal rule as valid something independent from its morality or immorality.
The Model of Conceptual Separation between Law and
Morals: Distinctions and Connections
Distinctions
We can point out certain canons to differentiate between law and morals (most of them framed by Kant):
Object canon : Morality is interested in internal actions or duties, while law is interested in external actions or duties (conscience: internal; speech: external). Thought (internal) must be regulated by morality (freedom of thought or religion, for example), not by Law; Law is only for external actions (speech). However, it is sometimes difficult to radically separate internal and external actions. Some actions, like thinking, can be labeled as purely internal, but any external action has an internal dimension (speech has the internal dimension of thinking on what is being said). Thus, we shall re-classify actions as purely internal and external (containing both an external dimension and an internal dimension). Law is interested in the external dimension of external actions (though it does take into account the internal dimension). Morality is interested in both the internal actions and the internal dimension of external actions.
Goal canon : Kant believed that Law always has a social goal, which might be order, peace, security, liberty…, while morality pursued an exclusively individual goal related to personal perfection, self- realization, salvation, etc. However, we can assert that morality also pursues a social goal. Thus, we must distinguish between social morality and individual morality: social morality pursues a social goal, while individual morality pursues an individual goal. In this lesson, we
are mainly focused on social morality as a form of social control and social organization (normative system). However, we may also consider that law cannot be absolutely separated from the final and more personal goals of human beings. This is clear, for example, in every legal system where human rights are recognized, protected and guaranteed.
The Distinction Between Law and Morality
The Will Canon
Kant considers morality to be autonomous, as it is not produced by any external will but rather rises from the individual's own conscience, which generates moral obligations. In contrast, he views law as heteronymous, as legal rules are created by an external competent authority and supported by a coercive power distinct from the individual.
However, it is important to note that neither morality is absolutely autonomous, nor is law absolutely heteronymous. Many principles of individual morality initially come from social morality and are later accepted by the individual through socialization processes. Similarly, in democratic systems and certain legal fields, individuals hold a greater degree of participation in the creation of laws, making the legal system somewhat more autonomous.
The Observance Canon
According to Kant, the observance of moral rules requires "morality" of the action, meaning adherence in conscience to the content of the rule. In contrast, law requires only "legality," which is the external observance of the rule, even if the individual disagrees with it in conscience.
While it is true that intent is relevant to law in cases of non-observance of legal rules, internal observance is also important for the effectiveness of the legal system. If a legal system is to be effective, it is crucial to win the internal observance of the law by individuals.
The Temporal and Geographical Canon
There is an indeterminacy (multiplicity of possible interpretations) in the temporal and geographical validity of morality, whereas the validity of law is perfectly determined in this sense.
The Sanction Canon
Moral sanctions are internal (remorse or pang of conscience), while legal sanctions are external. However, if we consider morality as social morality, the sanctions for social moral rules may also be external. The difference between law and social morality sanctions lies in the fact that legal sanctions are institutionalized.
has been historically denied in other types of political systems, leading to "pathologies of the relation between public and private ethics":
In the "totalitarian pathology," private ethics are dissolved in the public ethics, and the individual becomes a tool serving the state and its goals.
In the "fundamentalist pathology," certain private ethics developed by a church or philosophical conception turn into the public ethics of the state, which are then imposed on individuals through legal rules, leaving no space for individual morality.
