Basic Observations on Law and Morality

Most recent alteration: September 10, 2001

At first there seems to be no distinction between law and morality. There are passages in ancient Greek writers, for example, which seem to suggest that the good person is the one who will do what is lawful. It is the lawgivers, in these early societies, who determine what is right and wrong.

But it is not long before thoughtful people recognize the difference between what is actually legal, or legally right according to the political authorities and what should be legal. What should be legal roughly corresponds to what is really right or just, that is, what we would call morally right. We find, for instance, the distinction between what is legally or conventionally right and what is naturally (or as we would say today morally) right.

Sometimes this is expressed as an opposition between what the gods command (i.e., what is morally right) and what the political authorities command (i.e., what is legally right). This is dramatically illustrated in Sophocles' tragedy Antigone, in which the heroine defies the decree of the king (the source of "legal right" in the circumstances) and buries her brothers (an act the audience would assume was morally right).

The contrast between what the state demands and what the gods demand is not the only way that this legal v. moral distinction is expressed. We find it also in the important Greek philosophers, who frequently discuss the distinction in terms of appearance and reality, or between what superficially seems or appears to be the case and what a thorough rational investigation reveals.

Plato, for example, holds that knowledge of what is just or moral, and the ability to distinguish true justice or morality from what is merely apparently just depends on the full development and use of human reason. According to Plato, there is a very close connection between true justice or morality and human well-being or flourishing. Legal and political arrangements that depart too far from true justice should, if possible, be replaced by arrangements that better promote justice and thus well-being.

Ethics, therefore, has claimed a right to criticize legal arrangements and recommend changes to them. Many debates about the law, when they are not merely debates about how legal precedent mechanically applies in a particular situation, are also ethical debates.

Let's summarize the relationship between morality and law.

(1) The existence of unjust laws (such as those enforcing slavery) proves that morality and law are not identical and do not coincide.

(2) The existence of laws that serve to defend basic values--such as laws against murder, rape, malicious defamation of character, fraud, bribery, etc. --prove that the two can work together.

(3) Laws can state what overt offenses count as wrong and therefore punishable. Although law courts do not always ignore a person's intention or state of mind, the law cannot normally govern, at least not in a direct way, what is in your heart (your desires). Because often morality passes judgment on a person's intentions and character, it has a different scope than the law.

(4) Laws govern conduct at least partly through fear of punishment. Morality, when it is internalized, when it has become habit-like or second nature, governs conduct without compulsion. The virtuous person does the appropriate thing because it is the fine or noble thing to do.

(5) Morality can influence the law in the sense that it can provide the reason for making whole groups of immoral actions illegal.

(6) Law can be a public expression of morality which codifies in a public way the basic principles of conduct which a society accepts. In that way it can guide the educators of the next generation by giving them a clear outline of the values society wants taught to its children.