I believe there's an inseparable link between morality and the operative law. As you've stated, the issue with accounting for a moral influence on the law is the divided moral conception present amongst society. In this sense, balancing competing moral views is a perpetual goal of the law rather than a prevailing truth. I feel compelled to oversee the concept in reverse; that the law influences societal morality, and in this sense becomes inseparable from morality. With reluctance due to the sensitivity of the issue, the concept of same-sex relationships exemplifies this idea. If the law had an overnight statutory reform, discounting opposing public opinion and decided to legalize same-sex marriage; the institutional authority of the law will dissipate in the public sphere, which will stimulate the presence of an anarchy state. Albeit, it's perhaps too extreme to submit that same-sex marriage will lead to anarchy, but reasonable to put forth the importance of the law being reflective of societal morality to ensure its supreme and institutional operation. The law has instead espoused a progressional recognition, which supports the moral transformation of society. By methodically aligning the rights of same-sex couples with that of heterosexual couples, the law allows a statutory progression of recognition, which influences the growing societal acceptance of same-sex relationships as a moral and therefore acceptable ideology.
If the law advocates the morality of murder, it will lead to the moralization of a previously immoral concept amongst individuals within that governing state. Due to influencing the newfound societal morality, the law will henceforth be reflective of individual morality; whether wholly representative of society or not, it will still reflect morality held within a portion of the population. Hypothetically, if someone is discussing a certain issue, we instinctively question its legality, "is it legal?". Perhaps that is to refrain from partaking in a certain activity to avoid punishment, but is it something deeper than that? Is it because the law puts forth an imposition of morality when it prohibits a certain activity? Do we therefore align ourselves with the law, because it's such a supreme and governing authority, that it must systematically advocate morality? Ultimately, through its operation, the law can validate the paradigm of being reflective of 'morality', without necessarily conforming to previous moral standards - as it transitions societies immorality to morality, and vice versa.
Interesting viewpoint. In other words you believe because the law acts also as an educator of members of society, it should be morally righteous? We learn that this is called the "centrality of law", where the law acts the primary social ordering model and also serves to educate. It's entirely valid, but I can't help but point out that morals are subjective, and many morals reflected in the Western legal system arose from English Common Law, back when the Bible was a significant influence on the law system. But overtime the law has changed to reflect social forces, not necessarily religiously based. That's why I posit that the law stands to be an autonomous institution, that doesn't necessarily need to connect with morality, but does need to reflect humanity (if that makes sense...). And even though same-sex couples have their rights aligned with those married, it doesn't mean that they are equalised socially. They still technically aren't realised as a couple - remember, de facto relationships has no definition, but a criteria that needs to be ticked off to qualify. What you also bring up is one of my arguments; that of the morality in civil disobedience in certain situations. Long story short, it just means when there is a recognised immoral value in the law, it becomes moral to disobey it, even though it goes against the law and order of society. In that way, like you said, the law is made of morals, but nothing specifically suggesting that there is only one body of morals in the system. There is undoubtedly a connection between law and morality, (and I hope this part makes sense because it's not in my writing so far
) but it's an unnecessary connection because of this individual conception of morality. It serves to educate which means by prohibition it informs what's right and what's wrong, which is, at the end of the day, morality in its raw essence.
This is too hard to argue without sounding like a huge clump on self-contradictions...
shouldn't the law be morally good? bam, connection.
Yeah, but what constitutes morals is difficult to interpret. For example, Lord Devlin argues that societies are held together by a shared morality and thus crimes should constitute punishment if they are against the morals, even in the event that no one is harmed or that the wider society does not know of its occurrence. But HLA Hart counters that the concept of a 'shared morality' is flawed, because in pluralistic and multicultural societies there are inevitably a huge diversity of views on morals, and so a singlular 'shared morality' would be unreasonable to identify. In that way it kind of seems that protecting individuals' rights becomes the important aspect of law, and even though that's morally right, that brings into issue things like homosexual marriage which by all accounts should be legal as it constitutes institutionalised discrimination, but would upset the religious demographic because it would mean to break the traditional idea of matrimony. So does that make it morally correct to inhibit a certain demographic from doing something, because another would be upset by it, even though it wouldn't really adversely affect them at all? The same applies to most contentious issues like abortion.
Too many paradoxes when considering law and morality... my brain actually hurts...
IMO in order to answer this question one has to determine their philosophical interpretation of ethics in terms of either:
(a) Believing in absolute and objective ethical principles
(b) Taking a morally relative stance wherein moral principles are subject to culture or prevailing social/ individual beliefs
In the case of (a), where ethics is deemed objectively definable, the law could either reflect or completely fail to reflect morality in an absolute sense. I.e. if murder is deemed objectively immoral, depending on how the law views murder, legislation is either in line with, or completely against, respective ethical principles.
In the case of (b), where morality is subjectively determined, it is impossible to actually determine a connection between morality and law considering that in this case, ethics is a relative construct that reflects personal or social desire rather than objective truth.
So I guess it depends how you view and approach ethics. If ethics is objective, a connection or disconnection between the law and morality can be logically determined. On the contrary, if ethics is viewed as subjective, the link between morality and law depends on the individual making the link and thus cannot be determined in a philosophically consistent sense.
EDIT: Ironically this entire process of interpreting ethics as objective or subjective is subjective in itself (Nonetheless IMO, this doesn't mean ethics can't be objective)
Yep, this is where the interesting part of the question is though. To my delight the Law faculty has written that there is no right or wrong answer, just well-argued opinions, so if I explain myself properly it shouldn't sound too much like a mess
I've had an assignment similar to this... however, it was more centred on whether natural law (which are laws created on the basis of morals) is outdated...
not going to tell you what I wrote but it involved HLA Hart's Minimal Content of Natural law and a run down of many other theorists.. It also went into current events which are being swayed by moral objections from faculties like religion... things like, stem cell research... I then went on to say that natural law is still prevalent...
the impression I'm getting is that you're attempting to convey a legal positivists view... the view being, morality is a separate being from law... Probably good to do a bit of reading on the issue and search up a few legal positivist approaches to your problem...
truth of the matter is, no matter which theory you use, you are always going to run into problems...
Yeah, I am taking a legal positivist view, and natural law comes into my counter arguments. I have my readings so I won't look too uninformed, but it's quite a difficult question to word yourself around. The paradoxes hurt...
