The official blog of University of Missouri Skeptics, Atheists, Secular Humanists, & Agnostics

What’s the connection between morality and legality?


Seth here.

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?


About Seth Kurtenbach

Philosophy grad student who wandered into a computer science PhD program with a backpack full of modal logic and decision theory.

6 comments on “What’s the connection between morality and legality?

  1. sean hogge
    May 3, 2011

    Can it be even simpler? The purpose of legislation is not to make those it governs moral. The purpose of legislation is to prevent immoral people from causing harm to other parties.

    Which of course leads right to the question of whether immorality is harmful to individuals or society. That seems fairly easy to handle if we accept that “harm” must be any act that prevents another individual from living a life of reasonable freedom. Such that Person X’s cheating on their spouse doesn’t prevent Person Y from living safely and satisfactorily.

  2. Seth Kurtenbach
    May 3, 2011

    That is a substantive view of the purpose of the law. I think that preventing harm is one purpose of legislation, but that other purposes include establishing and enforcing pragmatic conventions, improving/encouraging economic efficiency, and allowing the least well-off members of society to live a minimally decent life, regardless of whether another individual is trying to prevent them from doing so. For example, people born into abject poverty are not having their ability to live a minimally decent life infringed upon by some other individual’s action; it is just a result of unfortunate circumstances, and legislation ought to assist such people.

    Some people, like aristotelians/virtue ethicists, think the law really should make those it governs behave virtuously, or at least to encourage as much.

    I think you are right that the answer to the question in my title will involve discussion of the purpose of the law. I am not sure that it is as simple as you make it out to be.

  3. messiasnonest
    May 3, 2011

    I’m not sure I agree that the purpose of legislation is to prevent immoral people from causing harm to other parties. I think the fact that many of the morals and laws that coincide only do so because, as Seth pointed out, they both happen to “enforce pragmatic conventions.” The difference is, the law sees this purely as a pragmatic convention, the morality of which may or may not be; whereas morality would define them as good/bad/etc. and possibly pragmatic as a bonus. Maybe a better way to say it is, the law might reflect a general morality but it certainly does not do so intentionally, only accidentally.

    Now, that’s not so say that a group’s opinion of a law (whether to create, repeal or obey) isn’t based on any certain moral values, but that the enforcement and interpretation of the law is in no way bound by those moral values.

  4. sean hogge
    May 4, 2011

    I hear the objections to my assertions and I agree. That is too simplified a view.

    Perhaps the crux of my argument is that any similarity or relationship between morality and legislation is circumstantial. A law against murder isn’t a moral one. It’s pragmatic, necessary for the efficient function of society on several levels. The law against rape is also not moral. Nor corporate taxation, Earned Income Credit, or child endangerment.

    So I guess I should say I only really disagree with Seth’s positing that any laws have a moral foundation – no functional, rational law needs a moral foundation and if so, then we are muddying the waters of both legal and moral debates with irrelevancy.

  5. sean hogge
    May 4, 2011

    Also, I see the messiasnonest commented much the same thing in his or her reply, but I think we can take it one step further. While laws may be “dreamed up” in a moral setting, their actual existence and function is amoral.

  6. Maggiesaurus May
    May 4, 2011

    Hey Sean, I’m interested in your position that no law has a moral foundation, yet laws may be dreamed up in a moral setting. I was wondering if you could clarify that a bit, as I tend to think that how a law is formed/dreamed up is its foundation. Also, I’m wondering if you’re talking about “just” laws, or all laws that have existed. Further, what would be the function of having degrees of murder and voluntary manslaughter (which were dreamed up on moral bases) and the felony/murder rule (which is now defended on moral grounds, though not dreamed up on moral grounds)? Often morals have pragmatic functions in society, but you appear to take the position that the two are exclusive. IE: it may not be necessary for a rational, functional law to have a moral foundation, but it may be sufficient.

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This entry was posted on May 3, 2011 by in Author: Seth Kurtenbach and tagged , , , .
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