In a recent post by Michael DeDora on Rationally Speaking, he briefly argues for the following principle:
“If we have a moral obligation to act a certain way toward someone, that should be reflected in law.”
In general this is a reasonable principle, but I think there are particular instances in which one should doubt the principle. In general, there are many laws that obviously have some moral force. For example, murder and rape are clearly illegal because, or for the same reasons that, they are grossly immoral. However, there are some instances of immoral action that one might think should not be formalized into law. Consider adultery, non-fraudulent lying (i.e., not lying for monetary gain but merely for reputation), abandoning one’s parents in a non-luxurious nursing home and then never visiting them. These things strike me as immoral, but not as the sorts of behavior the law ought to regulate.
The converse to the proposed principle has similar weaknesses. The converse states, “if an action is legally obligatory, then that obligation is reflected in morality.” There are many legal obligations that we do not correspondingly associate with moral obligations. For example, there is not a moral obligation to go exactly the speed limit (it is morally permissible to go a little bit faster), it is not morally obligatory that one register for the military draft (whatever that is called these days; I had to do it when I turned 18), and it is not morally obligatory that one pay for car insurance, new license plates, etc. Furthermore, there are some laws that strike us as immoral, like in contract law where a party to a contract is encouraged to breach if to do so is pareto- or kaldor-hicks efficient. This is essentially legalized promise breaking, which many find to be immoral. I mention the counterexamples to the converse to highlight the conceptual independence of the law and morality.
Michael might respond by invoking his system of morality in order to show that those things I’ve mentioned actually are not immoral, and thus they are not counterexamples to his principle. This may work for some of my examples, but I suspect there will always be a few cases of immorality that a reasonable person does not think should be formalized into law. For me, adultery poses a difficult case for Michael’s principle. It seems clearly immoral to me, but I don’t think it’s the law’s business to regulate such matters.
Finally, Michael’s principle may be making a weaker connection between the law and morality than the link I am supposing. Rather than endorsing a one-to-one link between moral obligation and legal obligation, the principle might be stating merely that for every moral obligation, the law must in some way account for it. For adultery, such an account might be something as simple as recognizing that the spouse of an adulterer is entitled to some compensation. However, I think this reply still entails that adultery is illegal, for who are we to suppose is to compensate the spouse? Surely the adulterer. Thus, the adulterer’s actions result in his/her punishment, via a fine or whatever. This is to say that adultery is illegal to some degree that warrants a fine.
In summary, I think there are good reasons to be skeptical of any proposal that forges a strong link between morality and legality. What do you guys think?
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