’ A society without any objective legal scale is a terrible one indeed. But, a society with no other scale but the legal one is not quite worthy of man either’.

                                                                                                Aleksandr Solzhenitsyn

The relationship between law and morale has generated endless debates between philosophers, academics and lawyers and as far as I know, it’s still going on today. But, I would like to take a closer look to the relationship between these two as regulators of our daily conduct. I will refer to morale and morality interchangeably in order to avoid any confusion between moral and morale.

As much as I agree that legal integration is very important and legal reforms are a crucial step on our common journey towards the EU, I believe that some of our legal issues we are dealing on the national level are not strictly about the law itself. First of all, I don’t believe that law exists and operates in a vacuum and neither do we as a society. If we take a closer look at our laws, whether prescriptive or prohibitive, regardless of their content or their intent, they all arise from a system of values, from a belief that some things are right and others wrong, that some things are good and others bad, that some things are better and others worse. It is that system of values and beliefs that we know as moral conduct within our society.

Every piece of legislation touches directly or indirectly on moral issues, or is based on moral judgments and evaluations to some extent. This can be seen almost in all of existing legislation pieces in our countries, starting from the criminal codes, constitutions, fundamental rights charters, family codes and many others. We have outlawed slavery, theft, murder, fraud, rape, and so forth precisely because they are immoral and we wanted them stopped, or at least radically curtailed. As a result, the existence of a particular law is itself a form of expression, and the message sent out is that a certain behavior is harmful, threatening and not acceptable to our society.

In fact, we prepare and set our laws in order to control behaviors we cannot tolerate, because those behaviors are seen as a threat to our moral environment and are against our standards as a society. The laws then decided by us, keep the balance of a good behavior in our daily lives. This of course does not mean that law and morale cannot exist outside and separately from each. They do of course, to a certain degree, but the main idea here is that the most fundamental laws and important legislation pieces are created and balanced by the moral values of a society and it is the society that decides through its moral behavior which ones to what degree are right for its proper functioning.

So, if we agree that our legal systems reflects our morality level to a certain extent, does this mean that our laws are weak because our morality foundation is incomplete? 

My answer is YES. You see, in our countries, we look at the law as separate from our moral standards and behave as if the law is completely outside of what we think and how we feel about a deed, norm or issue. We don’t realize that our moral conduct sets the corner stones for what and how we believe something should be legally regulated. In such countries, people rely only on the law to be a ‘good citizen’. And they don’t see the ‘good behavior’ as a personal and individual responsibility, but as an imposed and forced conduct by the state, which they are obligated to obey and follow.

However, being a ‘good citizen’ is not something law can force on us, it is something we already are and it’s about doing the right thing. It is about what we think is right and wrong for us. Law is a monitoring device and a tool through which we delete and add norms to our standards in order to achieve higher levels of integration. Law only reflects how we feel about a deed and what have we chosen to believe about it. Many of our laws are not prepared based on the society’s standards but are taken from some other system of values and beliefs which at that time did not represent the morality standards of the society it applied to.

As a result, such laws were not prepared from the level of the morality of our society, but they were taken from somewhere and applied within our countries with the aim to raise the level of our morality. There is where the contradiction starts sucking us in this ‘egg and chicken ‘game where we go around between what we believe is right for us and what should we do. We as society need to set our norms and standards about what we consider important and prepare our laws in line with that. That is of course a long and difficult process, because it involves at least a couple of generations work. But we must be clear that only as a morally healthy society, we can agree on what is right for us legally.

Only then we will be able to improve and feel good about our legal system because it’s our job to decide the standards we want to experience through the law implementation later on. It is here that the real integration starts. That is what EU is asking from us, and what we also should want for ourselves. Not necessarily making laws stricter, but making people better.

References and sources

‘The Falsity, Futility, and Folly of separating morality from law’. (Vol. 21 / N. 3 / the  Christian Research Journal).
‘Enforcing morality ‘. Criminal Law and Philosophy (2013) 7:455–471. Steven Wall
‘Four reflections on law and morality’. William and Mary Law Review
[Vol. 48:1523. Michael. S. Moore
‘Law versus morality as regulators of conduct’. American Law and Economics Review, V. 4, N.2, 2002,Steven Shavell
‘Some remarks on the connection between law & morality’, Law & Philosophy (2014) 33: 773–793, Maria C. Redondo
‘The necessary connection between law & morality’, Oxford Journal of Legal Studies,V.22, N. 3 (2002) Tony Honore
‘The problematic of moral and legal theory’, Hein Online –V. 111 N. 7, Harv. L. Rev. 1637, Richard A. Posner

15 November 2015                                                                                                                 Saimira Tola Khouw