The basic distinction between legal and moral is fairly easy to identify. Most people agree that what is legal is not necessarily moral and what is immoral must not necessarily be illegal. It is commonly used as an example. In what would become known as Hart's “separability thesis”, he argued that a law such as that requiring a person to drive on the right side of the road might be good law, but it's not a moral principle.
You would never go to Britain and say that my morality requires me to drive on the right and I feel morally committed to driving on the left. He argued that morality can influence the law, but it is not synonymous with the law. On the other hand, laws against dangerous driving (or, for example, murder), for example, are undoubtedly influenced by morality, but they are also part of the social bureaucratic order. And well-ordered states are not necessarily moral states.
Devlin's claim that laws exist to enforce morality was, Hart noted, simply factually incorrect. Summary of Japa Pallikkathayil, Edmond J. Graduated in ethics from Safra In The Boundary of Law, Liam Murphy explored the border between law and morality. On the one hand, legal positivism suggests that the border between law and morality is strict and exclusive.
That is, the question of what the law is and the question of what it should be are completely separable. Judges, therefore, cannot use their own moral judgments to determine what the law is. Murphy contrasted legal positivism with two non-positivist viewpoints. First, in the opinion of the German jurist Gustav Radbruch, a manifestly unjust state directive could actually be a law.
Therefore, in extreme cases, judges must exercise their own moral judgment to determine what the law is. Second, from Ronald Dwokin's view, legal interpretation, while limited by legal materials, basically always requires moral judgment because these legal materials are inconclusive. However, law and morality are not the same thing. On the one hand, the law is binary, meaning that an action is legal or illegal.
But, morality is full of gray areas. For example, stealing bread is illegal regardless of motivations, but most people are more sympathetic if it was done to feed hungry orphans than as a random act of robbery. In addition, government actors such as the police and courts enforce the law, and there are established punishments for offenders. Morality is not formally regulated, although immoral actions could certainly have social consequences.
Finally, the law is the same for all citizens, but morality depends on who you ask because everyone has a different perspective and set of experiences. Consider these similarities and differences when defining exactly what legal and moral means. The reform of the abortion law, Hart would continue to say, was not like the relaxation of the law against homosexuality. He went further and stated that laws against homosexuality existed because the strong feeling of “disgust” was deeply felt in society.
Hart was a legal positivist, meaning that he adopted a social scientific approach to law, considering the law as a social fact. It would also warn those who flatly rule out that the “fetus” is, at any time, a person, and suggests that this position has led to not converting “many” to a different vision of the moral state of the fetus. As he would argue in his famous The Concept of Law, morality can influence law, but laws and morals are different social phenomena. A court, following the concept of Radbruch's law, determined that the GDR's legal directive requiring guards to act as they did was so unfair that it could not be said to be law at all.
Murphy admitted that there are some cases in which this conclusion could be reached, but he suggested that the concept of law has a substantial core that is widely shared and, therefore, there will be many cases in which the question of what the law is should be considered resolved. But Hart's problem with Devlin's argument was deeper than Mill's doctrine and its separation from law and morality. And in this sense, the liberalization of abortion laws has allowed “a large number of pregnant women who do not wish to continue their pregnancy to present their arguments frankly to doctors and discuss them without shame and without fear”. At his lecture, Devlin refuted the Wolfenden Report, arguing that the law must and is being used “to achieve uniformity in society.”.
Hart, in his response to Devlin, agreed with the Wolfenden Report's statement that “an area of private morality or immorality must remain, which, in brief and crude terms, is not a matter of law. While not everyone agrees with the decisions, changing laws is a big step in changing social opinions in general. The bottom line is that when laws are unfair or outdated, people have to stand up and fight for what's right. While Raz tries to explain the concept of law through a conceptual analysis project, Muprhy suggested that there is too much disagreement in the intuitions that are the date for such an analysis to succeed.
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