LAW, MORALITY AND SOCIETY

Law, Morality and Society

Law, Morality and Society

Introduction

The relationship between morality and law is perhaps the fundamental issue in modern Western legal theory. For centuries, legal philosophers have framed this issue in terms of a debate between natural lawyers and positivists. Natural law approaches have often been associated with religious belief. Secularization of intellectual discourse has led to increasing use of “morality” rather than natural law as the counterpoint to positive law.

Morality as a Concept

Legal theorists have less rigorously analyzed the concept of morality. A source of confusion is the risk of slippage between two different understandings of morality. According to one, morality embodies true or sound values that provide a “final test of conduct” (Cane, 2007, 125). According to the other, morality consists of (a subset of) non-legal norms of conduct defined independently of notions of truth or finality. Thus, Hart (following nineteenth-century utilitarian) differentiated between affirmative and critical morality: affirmative morality intended morality really performed by a society or communal assembly, and critical morality intended the measures by which one assesses affirmative morality. Ronald Dworkin distinguishes anthropological from discriminatory morality, the last cited founded on cause as are against to strong feeling, prejudice, parroting, and so on.

Both Hart's and Dworkin's distinctions are problematic. In the face of troublesome contradiction, not only about the content of critical morality but furthermore about how one can recognise it, the distinction between affirmative and critical morality brands only a distinction of perspective. Critical morality comprises of the measures that persons use to consider other people's lesson convictions, and affirmative morality comprises of other people's (but not one's own) critical morality. The force of Dworkin's distinction between anthropological and discriminatory morality is dwindled by his acceptance that discriminatory lesson places may be held by their supporters as axiomatic or self-evident, and require not be sustained or adept of being sustained by (further) reasons. How, for example, should we categorize foundational lesson convictions held as an issue of devout faith?

More significant, possibly, an account of the connection between law and morality founded on either one of these understandings is probable to disagree in important values from an account founded on the other understanding.

Society, Morality and Sociality

Dworkin morality is inevitably compelled up with society: it is by virtue of society that morality is possible. In short, 'Man is only a lesson being because he inhabits in society, since morality comprises in solidarity with the assembly, and varies as asserted by that solidarity' (Dworkin, 1977, 325), or as he remarks in a later paper on the conclusion of lesson details, 'society is the end of all lesson undertaking … morality starts with life in the assembly, since it is only there that disinterestedness and devotion become meaningful' (1977, 327). In a sequence of clear comments on the connection between society and morality Durkheim states that his anxiety is to realise 'objective lesson truth, that widespread and impersonal benchmark by which we assess action' (1977, 329). Durkheim claims that the one-by-one, if portraying as agency ...