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Is there any necessary connection between law and morality

Jurisprudence and legal theory (la3005), university of london.

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Is there any necessary connection between law and morality (however “morality” may be understood)? Explain and defend your answer.

In this essay, I am going to be discussing whether there is a necessary connection between the law and morality. Law and morality can be understood as concepts, but any attempt made to define them becomes difficult. Laws are concerned with legal rights and duties which are protected and enforced by the State. If one disobeys the laws of the State, they can be punished. Morality identifies human behaviour as right or wrong. If one does not conform to the moral standards of society, he cannot be penalised by the law. So, while morality seeks to control both the internal external behaviour of people, the law seeks only to interfere with the external. I aim to prove with this essay that not only is there a necessary connection between law and morality, but also prove this connection as a source of the laws binding power. As it would be impractical to discuss all the thinkers, I intend to limit the scope of this essay by focusing mainly on two thinkers: Hart and Fuller. I chose those two because the Hart-Fuller debate is arguably one of the most interesting academic debates in jurisprudence, and also because it demonstrates the divide between positivist and natural philosophy of law regarding the role of morality in law. Over the course of this essay I will be discussing both Hart and Fuller’s position on what constitutes a legal system and show why I think the naturalist school of thought should prevail. I will then proceed to look at Fullers’ argument for why he thinks there is a link between law and morality particularly in the context of Nazi regimes. Then conclude by looking at morality in our modern pluralistic society. My aim by the end of this essay to prove why I believe that there is a link between law and morality.

Before we look at why I think there is a necessary connection between law and morality we must first understand what our theorists (Hart and Fuller) think of law itself and how it relates to morality.

HLA Harts’ view

Hart is a positivist, so he does not believe that there is a necessary connection between law and morality. While he does acknowledge that there is a close relationship between law and morality, and does not disagree that the development of the law has been immensely influenced by morality. However, he does not believe that they are interdependent

on each other.[1] As such he feels that a line should be drawn between what law should be, and what law ought to be. The fact of the matter remains, that a law does not stop being law due to moral criticism of it. Hart believes that officials should display truthfulness about the law by concentrating on what it says rather than focusing on what one desires it to say.[2] According to Hart the law consists of primary and secondary rules. Primary rules art duty imposing rules on the citizens and have a legal sanction. Secondary rules are power conferring laws that describe how laws should be recognised, adjudicated or changed. Hart says these rules form the heart of the legal system and the rule of recognition is the glue that binds the legal system as a whole. So, Hart advocates that conformity to a certain moral standard is not required for a legal system to exist. Hart acknowledges that law and morals are bound to intersect at some point, for instance where a case comes up where the wording of the relevant statute is not sufficient to give effect to the purpose of the law (professor hart refers to these as problems of the penumbra), Hart says that such cases can be solved by way Judicial interpretation. A decision can be made about what the law ought to be, and moral factors play a crucial role in deciding such hard cases.[3]

Fullers’ view

Fuller is a naturalist, and he sees laws as a way of achieving social order by regulating human behaviour through laws. He believes that our legal systems are derived from the norms of justice which have a moral aspect. [4] He argues that for a law to be valid, it must conform to a certain moral function test These are the eight desiderata set out by Fuller; (I) Rules (ii) published (iii) prospective (iv) intelligible (v) not contradictory (vi) possible to comply with (vii) reasonably stable through time (viii) followed by officials.[5] Fuller implores law makers to take into consideration each of the above before determining whether a law is valid. Fuller goes further to explain morality by categorising it in two; Morality of aspiration and morality of duty. Morality of aspiration suggests a desired norm of human conduct that promotes his/her best interest. Morality of duty describes the standards people follow to ensure smooth functioning of society. Other forms of morality discussed by Fuller are “Internal morality of law” and “External morality of law”. the former is concerned with procedure of law making while the latter focuses more on substance rules of law which are applied in decision making.[6] fuller rejects the positivist approach to law

If we follow Harts positivist views, the decision given by the Court was wrong, because hart believes that no matter how heinous the Nazi laws were, they were in accordance with the Enabling Act passed by the Reichstag, and were valid. It satisfies Hart’s rule of recognition. I find this very disturbing for many reasons. Fuller on the other hand recognised the Court’s decision because it created respect for law and morality, and by using his 8 desiderata Fuller states that all Nazi laws were illicit. This justifies the courts overlooking of the earlier 1934 act and upholding the wife’s conviction. Without the courts applying a moral concept in the application of the law, the courts would have had to acquit the wife and agreed with Hart, a decision I feel would have been wrong.

According to Hart, the Courts were left with only two options to preserve the integrity of the judicial decisions, either to let the wife go free because the statute protected her, or make a retrospective laws repealing the statute under which she claimed protection, and declaring the acts of the perpetrators of such atrocities as criminal.[9] Even though Hart did not favour the retrospective application of criminal statutes, he argued that the Nazi regime could have been considered an exceptional circumstance for the application of retrospective of laws, if the Courts were afraid that Hitler’s accomplices would be acquitted. Hart was strongly against the Court’s decision to introduce a concept of morality and deciding the statute which protected the woman was no law at all.[10]

fuller contended that Hitler’s regime was so harmful to morality, that there was nothing in the system that could qualify to be called a law as they did not comply with his desiderata. He stated that the Nazi laws lacked the necessary internal morality required in the process of law making, which gives laws respect and makes them obligatory to be followed by citizens. Fuller believed that unless the Nazi laws were treated as non-laws, the perpetrators of evils under the Nazi regime would go unpunished. A result I feel is unjust.

I agree with fuller and I think that hart is mistaken because Hart’s arguments fail in my opinion on the grounds that hart himself becomes inconsistent when he concedes to the fact that his rule of recognition requires a minimum morality of law. Impartiality in application of a rule is a moral standard which is necessary in any legal system.[11] Fuller believes that Hart is aware of the internal morality of law, but refers to it justice in the administration of laws. which in my opinion indicates that there is indeed a connection between law and morality. To Harts credit he

tries to justify his position that morality is not always necessary in the application of the rule of law, Hart, presents us with a hypothetical illustration.

Supposing a law forbade the taking of a vehicle into a park, and is not specific as to which type of vehicle. An apparent meaning of the term ‘vehicle’ would imply that cars are prohibited from entering the park. However, in absence of any clear definition of the term vehicle, would toy cars or airplanes qualify as vehicles? And, would the rule of prohibition be equally applicable on them? Hart emphasises that interconnection between what the law is and what the law ought to be in the penumbra does not depict how the law actually functions at the core.[12] I find harts arguments here to be weak because I believe that language does not determine the core of legal rules. this is because it is not possible to determine what the wording of a statute in this case the term ‘vehicle’ without first looking at the purpose behind the rule. Fuller also argues that it is not possible to determine if a rule applies to a given situation, without understanding the purpose that the rule was supposed to serve by referring to the objectives of entire provisions of law rather than seeking to find meaning of individual words. He identifies the problem as one of interpretation of words and not an issue of core and penumbra as claimed by Hart. Fuller emphasises that fidelity to law can be only achieved if the law is in accordance with morals at all stages, be it at the time of making of the law or its application by the court. People will comply with the law only if they are convinced that the law is based on strong moral foundations enacted for their common good.[13] Fuller further criticises Hart’s definition of law which insists that law and morality needs to be separated. Fuller contends that there cannot be a specific definition of law. Likewise, even morality cannot be defined accurately. Therefore, Fuller argues that because there is no precise definition for law and morality, it is pointless to argue that both of them are separate.[14] and I believe that this offers a much more compelling argument than any of Harts positivist claims.

Onto my final point, the issue with principles of morality is that various societies will have different moral principles. So in pluralistic societies such as ours, there will be conflicting ideas of what is, or not moral. For example, in Muslim countries it is considered immoral for a woman to walk outside without a hijab, whereas in the west this is not considered immoral. There is also the issue that morals tend to change over time, so

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The Morality and Law Relationship Essay

Introduction, changes in law created by moral concerns, reference list.

Moral principles are the backbone of society. In the process of establishing rules and hierarchies to follow, people have chosen certain principles and beliefs that are beneficial to them as a group. Common taboos such as killing or stealing are understood as detrimental to social life, creating an incentive to prevent people from committing them. Similarly, nations create and uphold laws in order to reach specific goals or prevent unwanted outcomes. There is a direct link between what society understands as valuable, morally and ethically, and legislation. With the evolution of human thought, the law changed accordingly, following certain precedents or exchanging them for newer ones.

While it is impossible for established law to account for any moral dilemma, the commonly understood boundaries of right and wrong can often be supported by existing legislation. This paper is concerned with discussing and showcasing the direct link between moral issues and legality. Using examples from the past, including case law and historical events, it will be possible to approach this subject. In particular, topics of international workers’ rights and racial segregation will be broached, as their legal status has shifted along with the people’s moral values.

Worker Rights

Throughout history, work has always been a part of people’s lives. An activity directed at securing a living, creating certain outcomes that are necessary for human prosperity. With the transition from feudal to capital societies, work became vital in producing goods and services. Without labor, it is impossible to support the economy, maintain a capitalist framework and fulfill the needs of consumers. Workers as a central force in promoting the necessary outcomes for society as a whole. Due to the existence of a profit motive, and a lack of regulation in early capitalism, emerging factories rarely had workplace regulations or protections for their laborers. For many, this resulted in trauma, injury, and death in the workplace. People were overworked in unsafe conditions for meager pay, forced into the production cycle that regarded them as simple cogs in the machine.

The mistreatment of workers contributed to the emergence of worker’s rights organizations, which argued against unethical and immoral workplace treatment of employees. Different nations have had their own distinct relationships with the concept of workplace advocacy, depending on their history or leadership. However, the vast majority of nations have been able to enact labor laws in a certain capacity. Social movements, protests, sit-ins, and active participation of workers all across the world were effective in highlighting the moral reprehensibility of contemporary professional practices. Most worker’s rights organizations found the existing lack of protections or considerations for the working class intolerable and focused on helping the common people. They argued that individuals have to be treated with dignity and fairness, considering their worth and individual humans and their needs. This is especially true of considerations such as child labor, unreasonably long work hours, or a lack of days off. In the US, a combination of factory owner neglect and a desire to maximize profits drove factories to ignore the moral and ethical concerns of their workers. The Fair Labor Standards Act, introduced in 1938, established regulations for acceptable work hours, pay, and days off and fully prohibited child labor (Fair Labor Standards Act of 1938). The incessant work of activists and worker’s interest groups has forced changes in the government, which recognized the unethical nature of harsh business practices. Other nations were similarly capable of negotiating fairer labor standards. In France, the Matignon Agreements of 1936 established a regulated work week, labor protections, and minimum wage. For UK workers, the 1998 National Minimum Wage Act was a notable legislative change, giving all employees more livable and secure wages. The collective work of governments and their people was able to make labor practices align better with the social and moral standards of today’s age.

Segregation and Massive Resistance in the US

Segregation is another major consideration for the United States of America, one connected with its storied legacy of slavery. Even after slaves were legally freed, black people were largely unable to enjoy the same rights and capabilities as their white counterparts. Local governments, businesses and various entities worked to dictate where the black population could live, study, and even eat. Certain states used their authority to force the newly freed slaves into a system of suppression and exploitation. In the state of Virginia, for example, the local constitution of the time focused heavily on reinforcing the principles of white supremacy and black subjugation. In particular, black people were largely excluded from voting, disallowing them from shaping the future of their community. Similarly, all-black schools received limited funding, and African-Americans were often forced to live in poorer areas. The combination of existing law and a lack of protection contributed to a systematic disparity between the black and white populations.

Despite established laws and protections against segregation existing in the US Constitution, states were able to exercise their own authority in order to reinforce certain outcomes. However, considerable public pushback could also be felt, both from the legal and ethical side of the issue. With the precedent set by the Brown v. Board of Education case, other courts and public figures argued on the unconstitutional nature of segregation. Public figures in newspapers, such as Lenoir Chambers of The Virginian-Pilot, worked tirelessly to convince the public about the immoral nature of segregation. The efforts of black activist groups, good-faith politicians, and courts have laid a path forward to fighting the remains of segregation in the US. This has resulted in other precedent court cases, such as the one discussed in Harrison’s contemporary article. The writing talks about the Court for the Eastern District of Virginia’s decision to rule desegregation as unconstitutional, which signaled a major shift in legal and public opinion within Virginia. The existence of an active conversation has helped the courts to take matters to the legal level and support vulnerable individuals.

The examination of these two subjects has presented an important connection between legislation, people’s rights, and morality. In the course of history, people that cared about the lives and health of others wanted to see positive change which reflected the value of human life have prompted changes in legislation. Considerations of ethics and morality of people’s treatment coincided with the need to protect certain groups, allowing the law to change. Workers demanded to be treated with dignity and understanding that was warranted by their importance, prompting the government to introduce better labor standards. Similarly, activists and public media figures fought against segregation and opposed attempts at re-introducing it in society. Their concerns and passion, often focused on the well-being and security of others, were rooted in what they understood as right for society. People who want to see their community better reflect individual-centered moral considerations are largely responsible for shaping today’s legislation.

Crawford, Jason. “How Factories Were Made Safe.” The Roots of Progress .

Daugherity, Brian. “Desegregation in Public Schools.” Encyclopedia Virginia .

Harrison, Joseph. “Virginia’s ‘Massive Resistance’ Laws Declared Unconstitutional.” The Journal of Negro Education 28, no. 2 (1959): 163.

Hayter, Susan, and International Labour Office. The Role of Collective Bargaining in the Global Economy: Negotiating for Social Justice . Cheltenham, UK; Northampton, Ma: Edward Elgar; Geneva, Switzerland, 2011.

Lebowitz, Shana. “Here’s How the 40-Hour Workweek Became the Standard in America – Business Insider.” Business Insider . Business Insider, 2015.

Leidholdt, Alex. Standing before the Shouting Mob Lenoir Chambers and Virginia’s Massive Resistance to Public School Integration. Univ Of Alabama Pr, 2007.

Queen Mary University of London. “A Short History of the Living Wage in the UK.” Www.qmul.ac.uk .

Ralph Clipman Mcdanel. The Virginia Constitutional Convention of 1901-1902 . Holmes Beach, Fl: Gaunt, 1999.

Fair Labor Standards Act of 1938 [Online]. U.S. Department of Labor Wage and Hour Division.

Brown v. Board of Education of Topeka [1954] 347 U.S. 483 (U.S. Supreme Court).

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IvyPanda. (2023, June 19). The Morality and Law Relationship. https://ivypanda.com/essays/the-morality-and-law-relationship/

"The Morality and Law Relationship." IvyPanda , 19 June 2023, ivypanda.com/essays/the-morality-and-law-relationship/.

IvyPanda . (2023) 'The Morality and Law Relationship'. 19 June.

IvyPanda . 2023. "The Morality and Law Relationship." June 19, 2023. https://ivypanda.com/essays/the-morality-and-law-relationship/.

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Does Law Exist to Provide Moral Order?

Is social cohesion possible in plural societies? Philosopher H. L. A. Hart weighed in amid debates on abortion and same-sex relationships.

In 1959, as a response to what was commonly known as the Wolfenden Report, Lord Devlin, an English judge, delivered the Maccabaean Lecture in Jurisprudence at the British Academy. The lecture that would later be published as The Enforcement of Morals . The Wolfenden Report was more correctly called the Report of the Committee on Homosexual Offences and Prostitution. Two years before Devlin’s lecture, the Committee had recommended by a majority of 12 to 1 that, in Britain, “homosexual behaviour between consenting adults in private should no longer be a crime.” Devlin’s objections to this recommendation would spark a passionate public debate between himself and H. L. A. Hart, Professor of Jurisprudence at Oxford University.

In his lecture, Devlin countered the Wolfenden Report, arguing that law should both be and is used “ to achieve uniformity ” in society. He went further, stating that the laws against homosexuality were there because the strong feeling of “disgust” was “deeply felt” in society. The presence of disgust, he claimed, “is a good indication that the bounds of [tolerance] are being reached… No society can do without intolerance, indignation and disgust; they are the forces behind the moral law.”

“It is generally accepted,” he continued, “that some shared morality… is an essential element in the constitution of any society. Without it there would be no [social] cohesion.”

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After Lord Devlin’s lecture, Hart, who described himself privately in letters to friends as a “suppressed homosexual,” felt compelled to speak out on BBC radio. As he would state in an interview in later life, he had felt obligated to act because, as he put it: “I think Devlin’s arguments are really bad and misleading and enable reactionary people to claim a philosophical mantle.”

Hart, in his response to Devlin, agreed with the Wolfenden Report’s statement that “there must remain a realm of private morality or immorality which is, in brief and crude terms, not the law’s business.” This idea, Hart argued, had a close connection to John Stuart Mill’s doctrine in his essay On Liberty that stated, “the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others.”

Hart was a legal positivist, meaning that he took a social scientific approach to the law, regarding the law as a social fact. What the law is, he argued, and what it ought to be are two distinct questions. As he would argue in his famous The Concept of Law , morality may influence the law, but laws and morals are distinct social phenomena.

In what would become known as Hart’s “separability thesis,” he argued that a law such as the one as obligates a person drive on the right-hand side of the road might be a good law, but it is not a moral principle. One would never go to Britain and say, my morality commands me to drive on the right, and I feel morally compromised driving on the left. Morality can, he argued, influence the law, but it is not synonymous with the law. On the other hand, laws against dangerous driving (or, say, murder), for example, are no doubt influenced by morality, but they are also part of social-bureaucratic order. And well-ordered states are not necessarily moral states. Devlin’s claim that laws are there to enforce morality was, Hart pointed out, simply factually incorrect.

But the problem Hart had with Devlin’s argument were deeper than Mill’s doctrine and his separation of law and morality. Hart was also, along with his great friend Isaiah Berlin, one of the most important twentieth century liberal philosophers who believed in an open, free, democratic, and plural society. Within these societies, both Hart and Berlin argued, are differing moral codes and beliefs. Berlin articulated what was a constant theme in Hart’s writings: that moral principles are incommensurate and often come into direct conflict with one another. One example of this conflict can been in the debate around abortion: pro-life and pro-choice (among others) are conflicting positions, but they both come from a recognizable moral framework.

To this problem, both philosophers suggested that an open, tolerant, and democratic society was the only moral solution (ironically). “Plural moralities in the conditions of modern large scale societies,” Hart wrote, “might perfectly well be mutually tolerant.” And in fact, “there actually are divergent moralities living in peace” in almost all open democratic societies .

For social cohesion to exist in a society, Hart argued, there is no need for the law to impose a singular “seamless web” of morality over its people, as Devlin had claimed. In fact, to live in a state of freedom, we must be allowed to choose our own moral systems. The law should not impose one way of life on people, a way of life that denies them perfectly harmless and consensual actions in private. As Hart argued in his Liberty, Law and Morality , the private sphere is neither the law’s business, nor society’s.

When asked in an interview if he saw Devlin as threatening liberalization, Hart answered:

He was. Although paradoxically I got to know him and quite liked him… After he produced his arguments against me and Mill, he then wrote a letter to The Times saying he thought the law [on homosexuality] ought to be altered.

In many ways Devlin’s letter was one of the success stories of the liberalization process in mid-twentieth century Britain. Like his friend Isaiah Berlin, Hart was never afraid to discuss issues openly with those who held divergent views. And Devlin’s letter is a testament to just how open and engaged dialogue (and even friendship) can be a persuasive force in society.

It was in this spirit that Hart addressed the issue of abortion in several lectures. For Hart, moral pluralism meant that there was nothing necessarily wrong with a society that contained within it divergent views on the morality of abortion. As he said in the interview mentioned above, “I can see how Catholics might object to abortion.” His legal positivist beliefs did not allow him into any obfuscation of facts. As he openly acknowledged , medical facts confirm that “the physical structure… of a foetus is remarkably similar to that of a new born baby” and “the legal facts are those which show that the law recognises the unborn foetus as having rights.”

He would also go on to caution those who dismiss out of hand that the “foetus is at any stage a person,” suggesting that this position had led to a failure to convert “many to a different view of the moral status of the foetus.” But, he pointed out, “only rarely has English law equated any form of abortion with murder.” Hart’s point was that, in England, some traditional belief, that can be seen in the law’s formulation, held that there was some distinction between a foetus and a new-born baby.

He also pointed out that what is now commonly called a “pro-choice position” is most often held by people who do not disregard the sanctity of human life. “Many of those who have campaigned for the relaxation of [the abortion] law,” he pointed out, are quite often “opponents of capital punishment and pacifists.” As he went on, “similarly, at the national level, the Scandinavian countries who have been the foremost and most consistent supporters of liberalisation of the law were also among the earliest to abandon capital punishment.”

Hart believed that a free society should allow for morally autonomous choice on matters such as homosexuality and abortion. But all laws, he believed, should be scrutinized for what harm they might cause. Hart in this pursuit addressed the issue of the harm that the abortion laws produced in Britain before their liberalization in 1967. In 1950s and 60s, it was thought that around 10,000 illegal abortions took place in Britain per annum. This meant that, in 26 years, 260,000 women from all walks of life were guilty of a crime punishable by a prison sentence. But when Hart looked at the statistics, he discovered that there were only around 55 convictions each year. This, to Hart, suggested that the society had little interest in upholding this law, and that it had become a dead letter. He also pointed out that illegal abortion was part of a “high profit criminal industry,” which offered “targets for the blackmailer and corrupting temptations to law enforcement agencies.”

As he discussed this issue in front of an Australian audience in 1971, he pointed out that relaxation of abortion laws in Britain were at least in part helping to solve the problem of “unwanted children, particularly illegitimate children, the reduction of maternal mortality through illegal abortion, and the reduction of illegal abortion.”

Hart would not allow himself to disregard the negative impact of liberalization. There had been, he observed, “the growth of a vast private sector where often very high fees are charged and large profits may be made by doctors.” This industry was bound to compound unwanted inequality in society, creating one “abortion law for the rich and another for the poor.” He also had “not the slightest doubt that a large scale racket has developed in this sector.” Doctors were making significant amounts of money at the expense of the unhappiness of women.

Abortion law reform, Hart would go on to say, was not like the relaxation of the law against homosexuality. It had deeply significant social impacts that must be addressed by government. It required “careful planning of available resources” and “should be accompanied, and if possible preceded by a really effective provision of free contraceptive services and education in their use.”

Consistent with his separability thesis, Hart’s philosophical positions were always accompanied by strong moral convictions. As he would argue, laws “must in the end be submitted to a moral scrutiny.” And in this regard, the liberalization of abortion laws had made it “possible for large numbers of pregnant women who do not wish to continue their pregnancy to lay their case frankly before doctors and to discuss it without shame and without fear.”

In the 1960s, liberal legislation pushed through parliament, and England witnessed the likes of the conservative Lord Devlin softening his position. But as the reactionary movements of the 1980s took hold, a handbrake to liberalization was applied: Margaret Thatcher would do her level best to place the liberalization vehicle into reverse. In 1988, her government pushed through “a new law to reduce the legal limit for abortions… from 28 weeks of pregnancy to 18.” Some months later, her government would pass a law that “prohibited local authorities and schools from ‘promoting’ homosexuality.”

Interviewer David Sugarman asked Hart in 1988, “What do you think about the current tendencies to reverse liberalization of the 60s in terms of abortion, homosexuality, and so?” Hart responded emphatically, “I loathe it.”

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1 Relationships Between Law and Morality

• Published: March 2019
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This chapter distinguishes three types of inquiry about law. It articulates the two conceptual views about morality and the nature of law that comprise the focus of this volume. First, the chapter explains positivist and anti-positivist views with respect to whether it is a conceptual truth that the criteria of legal validity include moral constraints on the content of law. It then turns to the dispute between inclusive and exclusive positivists with respect to whether it is conceptually possible for a legal system to have content-based moral criteria of validity. Finally, this chapter argues that the claim that conceptual jurisprudence should not be done is either unclear or false.

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