[Dystopian Darkness]

As a law student this is a question that has always bothered me and still goes unanswered - It will probably remain so, but I'm curious to hear everyone's perspective.

Argument for:

- Every law (or most laws) represent a moral imperative. Obviously, the question is not if all morality is legislated but which - And usually it's either the majority's morality or the moral standards based on society's values (such as western values, freedoms and rights, duties, etc.).

- Every society' possesses some kind of objective or inter-subjective morality that historically and culturally influences the laws being made - Even if people don't realize it, morality is the root of law.

- Some laws have no justification other than morality - For instance, walking around naked in public is harmless to the rest of society but it's still illegal.

Arguments against:

- Laws don't contain anyone's morality but merely a sect of rules that allow us to live peaceful, they're based on evidence, facts and the majority's will (assuming we live in a democracy) regardless of what motivates it. To provide an example - The reason we won't allow murder (with an amoral legal system) is because murdering others is dangerous and harmful to society's well being and compromises people's opportunity to live according to their individual rights, not because murdering is immoral. Another example - Theft isn't illegal because it's immoral to steal, but because it causes an unjustified patrimonial loss for someone and it's therefore unfair

- Some laws may be completely amoral, like the ones that regulate the method of paying taxes, economic and free market rules and permissive laws (i.e. Laws that allow you to have a certain behaviour if you want, like the right to freely circulate around town)



Feel free to add more arguments. For now, I lean slightly more on the laws are based on morality side.

[One Degree]

Without a morality base, do you not run the danger of financial restitution replacing incarceration. This would obviously end up benefiting the wealthy.

[velvet]

I believe it's more accurate to label our legal systems as legislated as reflections of the dominant interests within given communities. Our communities are divided into a number of different spheres and within these spheres different actors seek to have their interests legislated. Some spheres are more or less all encompassing - i.e., individual freedoms: liberals versus conservatives, to be crude - whilst other spheres revolve around much smaller subsets of our communities - i.e., agriculture: big farmers versus small farmers, to be crude again. Our moral values are involved but these are no less interests than how different class groups feel about top-tier taxation.

It becomes more interesting once we consider the role of judges in this. In common law systems - and I'm adding this because I don't think the OP is from one - judges play a large role in interpreting, and as such defining, our laws. I'm not sure there's a set answer about the basis of the law that can be offered considering this. I believe judges take a roughly formalist approach tempered by their ideological inclinations. So, the actual legal system, is still a reflection of the dominant interests within given communities, it's just a little fuzzy around the edges.

I also see this as producing an amoral collection of rules that are legitimised by their reference to forceful compulsion.

[Dystopian Darkness]

Without a morality base, do you not run the danger of financial restitution replacing incarceration. This would obviously end up benefiting the wealthy.

Explain this better please. Was that a question?

I believe it's more accurate to label our legal systems as legislated as reflections of the dominant interests within given communities. Our communities are divided into a number of different spheres and within these spheres different actors seek to have their interests legislated. Some spheres are more or less all encompassing - i.e., individual freedoms: liberals versus conservatives, to be crude - whilst other spheres revolve around much smaller subsets of our communities - i.e., agriculture: big farmers versus small farmers, to be crude again. Our moral values are involved but these are no less interests than how different class groups feel about top-tier taxation.

So, in this context, could we define simplistically each group or individual's interest as some kind of survival mechanism? - And since no one wants to die, we all have to restrict ourselves mutually to survive.

It becomes more interesting once we consider the role of judges in this. In common law systems - and I'm adding this because I don't think the OP is from one - judges play a large role in interpreting, and as such defining, our laws. I'm not sure there's a set answer about the basis of the law that can be offered considering this. I believe judges take a roughly formalist approach tempered by their ideological inclinations. So, the actual legal system, is still a reflection of the dominant interests within given communities, it's just a little fuzzy around the edges.

I also see this as producing an amoral collection of rules that are legitimised by their reference to forceful compulsion.

You are correct, I am from a legal/civil system. The rule of law is the written law produced and created by the parliament - But our judges to have to interpret the law because some concepts or formulations are ambiguous and apply to a variety of real life cases; the only thing a judge cannot legally do is to completely violate the grammatical meaning of the law (example - If the law says "thou shall not murder" a judge can never reach the conclusion that murdering is acceptable). I agree that judges probably have an ideological leaning and some base themselves on morality - For instance, some judges apply heavier sentences (within the legal limits) because they believe retribution and punishment is more important than rehabilitation. But how are those rules amoral?

[One Degree]

One Degree wrote:
Without a morality base, do you not run the danger of financial restitution replacing incarceration. This would obviously end up benefiting the wealthy.

Explain this better please. Was that a question?

I posed it as a question because I do not consider myself a legal scholar.
It would seem logically that punishment is only used because it is considered amoral.
If it is simply against the law (community interests), then it would seem logic would dictate that restitution be made to the community in a monetary manner.
Initially this probably would not be so, but in the long term, it would trend in this direction.
There would be less demand for incarceration if the crime was not considered a crime against morals.

Edit: It was simply a thought I decided to throw out to see what others thought.

[Dystopian Darkness]

I posed it as a question because I do not consider myself a legal scholar.
It would seem logically that punishment is only used because it is considered amoral.
If it is simply against the law (community interests), then it would seem logic would dictate that restitution be made to the community in a monetary manner.
Initially this probably would not be so, but in the long term, it would trend in this direction.
There would be less demand for incarceration if the crime was not considered a crime against morals.

Edit: It was simply a thought I decided to throw out to see what others thought.

Couldn't it be because we, as a society, consider that suffering and pain is immoral and therefore those who put others in situations of pain and suffering should be punished?

In my country the criminal already has to provide a monetary restitution after getting out of prison (or alternatively he can work inside for community service to pay the debt) - It is a civil law restitution, not criminal, because criminal law is not there for the victim, but to protect society as a whole from threats and dangerous delinquents

[One Degree]

Couldn't it be because we, as a society, consider that suffering and pain is immoral and therefore those who put others in situations of pain and suffering should be punished?

How can you do this and say the law is not based upon morality?
It may be a matter of 'distance' but it is still law based upon morality.

[Dystopian Darkness]

How can you do this and say the law is not based upon morality?
It may be a matter of 'distance' but it is still law based upon morality.

You misunderstood me, my observation was to support the idea that laws are based on morality, it was a pro argument.

[One Degree]

I guess I am predisposed to expecting an argument.

[velvet]

So, in this context, could we define simplistically each group or individual's interest as some kind of survival mechanism?

I would define individuals interests as their views towards maximising their own utilities.

The rule of law is the written law produced and created by the parliament - But our judges to have to interpret the law because some concepts or formulations are ambiguous and apply to a variety of real life cases; the only thing a judge cannot legally do is to completely violate the grammatical meaning of the law (example - If the law says "thou shall not murder" a judge can never reach the conclusion that murdering is acceptable).

I would be lying if I said I had anywhere near a competent understanding of non-common law legal systems.

The understanding I have though is that judges have a lot more discretion in how to decide cases in common law systems. For example it's quite possible for a judge to engage in an interpretation of the law that might eschew what a literal interpretation that some statute might indicate. Unenumerated rights existing within the Irish common law system would be the most obvious products of eschewing literal interpretation of our constitution. I always found Fuller, L., L. (1949) an amusing example of the differing forms of judicial interpretation available - Wikipedia link here.

But how are those rules amoral?

If law is based in interests and not morals then the law is neither moral or immoral. It just is; because, without subjective exterior evaluation, interests just are.

Looking at it from the other end - because it's just easier to argue - I believe whilst in some spheres laws might be a reflection of a societies moral values (as combined in their interests) the law does not reflect moral values itself. Some rule being in the law says nothing of that rules moral character as considering either [1] the historical shifts in law or [2] the inconsistencies across borders and cultures, would indicate.

I also wrote the last line in the previous post as an aside at the end. It's not relevant to the formation/basis of law.

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There would be less demand for incarceration if the crime was not considered a crime against morals.

It's arguable that people just see incarceration as depriving (roughly) the same number utils from people as compared to monetary payments which might derive more or less from people depending on their incomes and wealth. Consider a millionaire and a two-job single mother caught speeding to their workplaces and an equal fine of 300euro being allocated to both: It's going to hurt the two-job single mother a lot more than the millionaire.

It seems likely the case in communities basing their legal systems about acting as a deterrent to crime.

[kobe]

Are laws based on morality?

It's a mixed bag. There are economic laws, there are laws that maintain hierarchy/order, and laws that reflect the morality of the people that passed them in the time and place they were passed.

Economic laws: excise taxes, tariffs, customs, licensing; institutions like the joint stock corporation, federal reserve, limited liability, etc. These are not laws that deal with morality but rather laws, or regulations if you will, that regulate commerce in order to make it more uniform and- in theory- maximize profits. Antitrust laws fall in a sort of gray area because some view them as morally positive, but for the most part it is to aid in competition.

Laws that maintain hierarchy/order: these laws are the organization structure of the bodies that pass, enforce, or judge laws. Although the system that they establish tend to be based on moral considerations, they do not themselves affect morality, only control. This would be in America the establishment of the three branches of government and the establishment of rights for states versus rights for federal government. You can read yourself a lot about the origin of the structure in both the federalist and anti-federalist papers. Indeed for this reason many call the civil war not one of morality but of procedure, though of course if you look into it you realize how distorted that view is, but it is very true that since we are so young and based on a rather difficult to amend but very important constitution.

Moral laws: these are easy to pin down. War on drugs, "traditional marriage", civil rights act, bill of rights, the anti-abortion laws that used to be popular before Roe v Wade, the eugenics laws that used to be extremely popular, women's suffrage, "dry counties"... Laws concerning morality are numerous even in a country that separates church and state. In a country like Saudi Arabia where laws are almost solely based on a certain religion, the moral laws are even more numerous.

[mikema63]

I suppose you could always make the argument that laws are based on some sort of morality or another, but the real question is who's and what moral system do they use.

Ethical Egoism is also a system of morality, so even self serving laws can be claimed to serve some kind of moral code.

[kobe]

I disagree. Laws that arise from economic or structural identity of a state seem to only tangentially relate to morality. Although I suppose you are right that any law can be considered morally just or unjust by some system of morality. Certainly the punishments for violating laws seem to always be based on morality. However, some laws are for all intents and purposes unable to be violated. For instance it is unconstitutional (after FDR) to run for more than two terms. There is no way to violate it. It is not based on moral law but rather tradition that was never codified until it was. Is that a law because of the system of morality, or because the people who made the amendment believed that two terms were more conducive to the structural benefit of the system?

[mikema63]

Why shouldn't the good functioning and structure of the state be moral? From a consequentialist point of view a functioning, stable, state and economy are a highly prized moral good on the basis of increasing general happiness and well being.

Is that a law because of the system of morality, or because the people who made the amendment believed that two terms were more conducive to the structural benefit of the system?

I have no idea of the history behind the amendment, some people put a moral value in tradition though so it's certainly a plausible explanation. You could also argue that the sitting president has a major and undemocratic advantage in reelections, so the limit would be a structural benefit in that case.

[Dystopian Darkness]

I would define individuals interests as their views towards maximising their own utilities.

So what happens when individuals want to impact other individuals and not just their own lives? For example, if I support the state spying on citizens I'm advocating invading others' privacy, even if I genuinely believe it is correct and necessary to do

I would be lying if I said I had anywhere near a competent understanding of non-common law legal systems.

The understanding I have though is that judges have a lot more discretion in how to decide cases in common law systems. For example it's quite possible for a judge to engage in an interpretation of the law that might eschew what a literal interpretation that some statute might indicate. Unenumerated rights existing within the Irish common law system would be the most obvious products of eschewing literal interpretation of our constitution. I always found Fuller, L., L. (1949) an amusing example of the differing forms of judicial interpretation available - Wikipedia link here.

This made me curious - The little I studied about commonlaw was enough to understand that jurisprudence and courts of law have high interpretative powers but are somewhat limited by previous decided cases - I don't know how this is called, but I'm talking about when case 1 is settled and then an equal case (case 2) appears and is decided similarly to case 1 - because of this I've heard some states in America can live with little laws.

If law is based in interests and not morals then the law is neither moral or immoral. It just is; because, without subjective exterior evaluation, interests just are.

But aren't interests based on morality to an extent?

Looking at it from the other end - because it's just easier to argue - I believe whilst in some spheres laws might be a reflection of a societies moral values (as combined in their interests) the law does not reflect moral values itself. Some rule being in the law says nothing of that rules moral character as considering either [1] the historical shifts in law or [2] the inconsistencies across borders and cultures, would indicate.

I also wrote the last line in the previous post as an aside at the end. It's not relevant to the formation/basis of law.

I'm inclined to agree.

It's arguable that people just see incarceration as depriving (roughly) the same number utils from people as compared to monetary payments which might derive more or less from people depending on their incomes and wealth. Consider a millionaire and a two-job single mother caught speeding to their workplaces and an equal fine of 300euro being allocated to both: It's going to hurt the two-job single mother a lot more than the millionaire.

It seems likely the case in communities basing their legal systems about acting as a deterrent to crime.

[/quote]
And because incarceration prevents future crimes in case the delinquent has highly deviant behaviour. In my opinion, prison is based on "an eye for an eye", at least among the people, even if criminologists and criminal law students like me like to brag about deterrence, special prevention, rehabilitation, incapacitation and other academical concepts

[One Degree]

This made me curious - The little I studied about commonlaw was enough to understand that jurisprudence and courts of law have high interpretative powers but are somewhat limited by previous decided cases - I don't know how this is called, but I'm talking about when case 1 is settled and then an equal case (case 2) appears and is decided similarly to case 1 - because of this I've heard some states in America can live with little laws.

I believe you are referring to 'precedent'.
It has never made any sense to me.
You decide what is right based upon what someone else decided is right.
It seems to be a convenient way of interpreting the law any way you wish without worrying about the justice of the current case.
It has worked wonders at twisting our constitution rights into serving what ever is politically correct at the time.

[velvet]

So what happens when individuals want to impact other individuals and not just their own lives?

The legal system allows for that.

There's also nothing incoherent in having an interest in dominating someone else for personal comfort.

I don't know how this is called, but I'm talking about when case 1 is settled and then an equal case (case 2) appears and is decided similarly to case 1

It's called precedent .

The judge has to follow previous decision (ratio decidendi) of a higher court for a (more or less) equivalent case. Sometimes this involves some amount of interpretation. In Irish law it's possible for the Supreme Court to over-rule an earlier Supreme Court judgement if it feels that Supreme courted had erred previous.

But aren't interests based on morality to an extent?

Sure. In some cases our interests might be a reflection of our moral values and taking that view

I see this as part of a broader network of interests though. We might judge our moral value important and worth legislating but we are legislating because it makes us feel better in ourselves. For me that's what takes it beyond just being a moral value reflected in law.

In my opinion, prison is based on "an eye for an eye", at least among the people, even if criminologists and criminal law students like me like to brag about deterrence, special prevention, rehabilitation, incapacitation and other academical concepts

I agree for sure here.

I might take the moral high ground with the arguments I make here but when it's implemented you can be sure it's for some popular base emotional reason.

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You decide what is right based upon what someone else decided is right.

I don't see much justice in treating the same cases in a different manner.

It seems to be a convenient way of interpreting the law any way you wish without worrying about the justice of the current case [...] It has worked wonders at twisting our constitution rights into serving what ever is politically correct at the time.

That's not precedent in action. It's judicial interpretation.

---

I suppose you could always make the argument that laws are based on some sort of morality or another

I can accept this. I'm not sure how meaningful this is though:

You can also argue that all actions are found in some moral theory or another. Ethical Egoism leaves a lot of room for this especially.

[One Degree]

I don't see much justice in treating the same cases in a different manner.

You don't think determining a case based upon 2 attorneys each presenting precedents from an earlier era subverts the facts of a current case?
It would seem the case is then determined by the attorneys ability to find the best precedents rather than arguing the correctness of actions.
Precedents simplify the legal procedure, but is it the fairest method, in your opinion?

[velvet]

It would seem the case is then determined by the attorneys ability to find the best precedents rather than arguing the correctness of actions.

The correctness of actions was determined in the creation of the precedent.

It's also possible for a judge to distinguish a case if he figures the precedent doesn't fit close enough, which is how new precedents get created.

Precedents simplify the legal procedure, but is it the fairest method, in your opinion?

I think it's of good moral imperative to treat people as equal under the law, and it's difficult to do that when the law is in constant flux with the whims of judges.

It also creates consistency which simplifies things for claimants, though that's secondary.

[Dystopian Darkness]

Regarding the precedent, in my opinion it has one problem - Even if you consider two people who committed the exact same crime under the exact same circumstances, the simple fact the agent is different requires different solutions - For instance, if one of them displays higher psychological instability and tendencies to aggression the sentence may have to be higher - The simple fact personalities are different requires different rehabilitation methods (if we're going that way). I'm a firm believer that in criminal law there is no such thing as an equal crime as long as the person committing it is not the same (and even if he/she is, the circumstances will never be the same)