The main difference between law and morality is that law refers to the set of rules and regulations applied by the state to regulate human behavior in society, while morality refers to a person's ethical code of conduct. In what would be known as Hart's “separability thesis”, he argued that a law such as the one that requires a person to drive on the right side of the road could be a good law, but it's not a moral principle. You would never go to Great Britain and say, “My morality commands 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.
Liam Murphy, a graduate ethics fellow from Safra, at The Boundary of Law, explored the boundary between law and morality. On the one hand, legal positivism suggests that the boundary 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 views. First of all, in the view of the German jurist Gustav Radbruch, a patently unfair state directive could actually be a law. Therefore, in extreme cases, judges have to exercise their own moral judgment to determine what the law is. Second, from Ronald Dwokin's point of view, legal interpretation, although restricted by legal materials, basically always requires moral judgment because these legal materials are inconclusive.
Law and morality are two systems that govern the way human beings behave. The law is a set of rules and regulations that all people are obligatorily obliged to comply with. Morality, on the other hand, refers to general principles or standards of behavior that define human behavior within society, but are not mandatory to follow. The relationship between law and morals is complicated and has evolved over the years.
Initially, the two were considered equivalent, but with time and progressivity, it stands out that the two are different concepts, but with a certain interdependence between them. And in this sense, the liberalization of abortion laws has made it possible “for a large number of pregnant women who do not want to continue their pregnancy to state their case frankly before doctors and discuss it without shame and without fear”. Only when this voice took the form of a law did people slowly begin to accept a woman's will and their moral ideologies on the subject began to change. While that is true, it can also be observed that rules and regulations also have a great impact on the moral standards that exist in society.
By virtue of the lack of distinction, all laws had their origin in what the people of a society considered morally correct. In simpler terms, no law can be considered valid if it does not pass the test of morality, which is based on the ethical ideas that people have. The dispute between a positivist and Dworkin is about how to understand what a judge does when moral reasoning must be exercised to resolve a case. Suppose, on the other hand, that a non-positivist view would lead someone to consider many of their state's legal directives illegal.
If you understand law and morals in this way, you can see that there is confusion surrounding statements such as “anything is allowed to be done as long as it is not criminal” and “no social sanction should be imposed on acts that are not criminal”. In other words, when Bentham distinguishes law and morals, he barely talks about his own conscience or the goodness of his own motives, but he tries to distinguish their functions according to his utilitarian objective of promoting general happiness. In this case, the statement is simply that it cannot be denied that positive morality exists apart from positive law. Here he makes a detailed classification of law and morals, as well as a classification of human actions according to how they affect the happiness of oneself and that of others.
In Murphy's view, in the absence of general agreement on the concept of law, one might worry that there isn't a right answer as to what law is. In the end, Murphy suggested that the project of finding the true concept of law is useless, regardless of the method used. He doesn't talk about natural law or natural rights, which he is famous for criticizing in his other writings, especially in his Fragment on Government and Nonsense on Stilts. .
Leave Message