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Law and Morality : Moore’s Philosophy

Written by: Vasudha Tamrakar I am a IVth Year Student from National Law Institute University Bhopal
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In general view morality is the quality of being in accord with standards of right or wrong conduct. M.S Moore also thinks in the same way. Morality, for him speaks of a system of behavior in regards to standards of right or wrong. The word carries the concepts of: (1) moral standards, with regard to behavior; (2) moral responsibility, referring to our conscience; and (3) a moral identity, or one who is capable of right or wrong action. Morality has become a complicated issue in the multi-cultural world we live in today. Timeless wisdom explains that there cannot be a complete law unless there lays the effect and inclusion of morality. My Project explores what is Moore’s concept of morality and how he explains its affects on our behavior, our conscience, our society, and our ultimate destiny. In this light further to understand his concept completely I would like to analyze in my project the following issues as given below:

Issues
My project deals with the four aspects related to law and morality.
The first is the relationship between the law that obligates judges, and morality: exactly how, does that law relate to morality?
The second relates to the nature of that morality to which the law is related.
The third involves the proper aims and limits of law making in a democratic society: is it possible to legislate morality?
The fourth is the content of that morality apt to be part of the law.

Relation of Morality to the Law we Have
According to Moore, the question of how law is related to morality is best approached through judicial obligation that obligates judges in their role as judges, and then to further consider how ought judges to use morality in their decision of disputed law cases? How should morality properly enter into judicial decisions?

A. Morality in Judicial Reasoning

Moore’s idea to understand the judicial reasoning is by considering the “obvious law”.[1] This can be understood with the help of certain examples, which he cites. When statutes award custody of minor children to a parent it is most likely in the best interest of the child, award citizenship only to those applicants who possess good moral character, deport those who are convicted of crimes of moral turpitude. This shows that judges in legal systems with obvious law like ours have to make some kind of moral decisions in order to apply such laws to the cases before them
Moore further has explained that why and how Judges are justified. He says, with the force of the state behind them, they coerce people into giving up their money, their liberty and their lives. Such coercion requires justification, which is of course the (obvious) law, which lays down certain doctrines of legislative supremacy and the ban on common law crimes. Some political ideals such as democracy, the separation of powers, and the rule of law make those doctrines a source of judicial obligation.

B. Conceptualizing Morality in Law

Conceptualizing[2] what judges ought to do as judges becomes important. This can be done by finding that whether judges while performing their duties are following the law. Moore here discusses, the ideas of legal positivists. They admit that judges should look to such incorporated moral standards but deny that such standards are part of the law, which raises an analogy. Likewise for cases where the obvious law is indeterminate a positivist advises judges to look to morality because there is no law in such cases. When the judge makes some law by his decision, the law that is made may be morally correct, but it will still be law only because the judge laid it down and not because it is morally correct. On the other hand, the natural lawyer denies both, that the obvious law is all the law, and that the obvious law is in fact always law. According to this school of thought there should inclusion of morality in law. We thus face a conceptual choice that is not obvious.

Morality And Our Behaviour

Morality, according to Moore, describes the principles that govern our behavior. Without these principles in place, societies cannot survive for long. In today's world, morality is frequently thought of as belonging to a particular religious point of view, but by definition, we see that this is not the case. Everyone adheres to a moral doctrine of some kind to ensure fair play and harmony between individuals; (2) to help make us good people in order to have a good society; and (3) to keep us in a good relationship with the power that created us. Unless we live in a dictatorial society, we are free to choose our own personal moral code. The question is, what happens when our choices conflict with each other? If we do not have an absolute standard of truth, chaos and conflict will result as we are all left to our own devices and desires.

Morality And Law
According to Moore, there seems to be no distinction between law and morality. Greek writers, he quotes, 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. 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 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). The 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.

How Does Morality Relate To The Law We Ought To Have?

Moore moves forward from the relation of morality to the law that binds judges, to the relation of morality to the content of what ought to be law in a liberal, democratic state. He thus, moves from the judicial role to the legislative role. Legislators no less than judges need a theory of their role, a theory about what are and are not proper ends to be sought via legislation. A legislator should simply represent accurately the views of his or her constituents, whatever those views might be with respect to the new law proposed to be created. But where do we find a theory of proper legislative ends? The obvious answer for Moore, is, “morality.” Where there is no obvious law available to a judge morality is referred on the subject.

Mill thought that one of the aims forbidden to legislators in a liberal democracy was the aim to legislate morality. Only legislation aimed at preventing behavior harmful to others was proper; legislation aimed at promoting morality was as much condemned, as was paternalistically motivated legislation. E.g.: the state should not coerce or encourage any moral conception of the good life; or the state should refrain from legislation on moral matters where there is no overlapping consensus; or the state should only provide the fair framework in which differing moral visions can compete; etc

The critique of Mill and these Post-Millian liberalisms is very simple. If something is morally good, that gives each of us a reason to promote its attainment. That is as true of legislators as of anyone else. If laws can be made that promote justice, there is good reason to make such laws. How liberal they are depends on the structure of morality they would enact into law. If that morality contains such items as a general right to liberty, then a moralist legislator should respect that part of morality too. Mill’s harm principle is not a limit on proper legislative aim rather it is a theory of when behavior is morally wrong. Most harming of others without their consent is morally wrong, and most seriously immoral wrongs consist of causing such harms. According to Moore, Austin had it right, when he held that we should legislate morality. The law we ought to have should be as near to morally correct as we can make it. But Moore can be criticized here, when he supports legislation of morality, which is practically impossible

Should Real or Conventional Morality Be Part of The Law?

Moore further discusses here a meta-ethical issue: that whether “is and ought” which is to be a part of the law, real or conventional morality? Is it so that the moral beliefs shared by citizens are the mores of our society? Or is it what some call “critical morality,” and what Moore calls real (or the correct) morality? The second issue is a substantively ethical question: is that morality utilitarian including justice as something to be maximized?

Moore examines the first issue here and the second in the succeeding section. He assumes that meta-ethical relativism is false. The argument for use of conventional moral beliefs that interests him proceeds not from necessity but from desirability. The idea is that it is right to look to popular, generally accepted moral beliefs when questions of morality arise in the law. That at least is the shape of the conclusion.

1. Supposed wisdom of many

Moore says, everyone has quite a few firmly held moral beliefs. Is it likely that they can render those beliefs doubtful because many others disagree with them? If truth in morality is really so hard to achieve, why defer to others, who surely are as muddled as are you? There is another argument for use of conventional morality in law, but it is distinct and merits separate mention. This is the idea that perhaps, conventional morals are a good heuristic to true morality. Whether a particular murderer really deserves to die, for example. In this case we use conventional morality, not because it is more likely true, but because thinking about conventional morality gets us to our own best views of what true morality requires.

Somewhat more plausible, perhaps, is deference based, not on the fact that conventional moral beliefs are correct, but on the fact that they are conventional, i.e., they are what most people think. Social peace and harmony is worth the price of living under incorrect moral beliefs. In the Law We Ought to Have Supposed these democratic and “peace-at-any-cost” ideals, which convince one to use conventional morals whenever morality enters the law. This conventionalist legal moralism would mean that there are no principled limits to what may be legislated by a majority. Lord Devlin showed us this in his debate with Herbert Hart in the 1960’s. Seeing this makes it easy to see why Mill thought he should be arguing against legal moralism as much as against legal paternalism. Mill took this to be an example of legal moralism doing its pernicious work. Yet what if Mill thought that polygamy was deeply immoral, perhaps like female circumcision in certain African tribes. Wouldn’t his outrage have been eliminated – because then, the Americans would have been legislating true morality and not (a largely incorrect) conventional morality about sex. Mill surely thought (as also Moore) that polygamy was no big deal morally speaking, and therefore that using the coercive force of the law to stamp it out was unjustified. In this case, Mill’s real target was the use of conventional morals as the basis of legislation, not the use of morals as such."

2. In the Law We Have

Now turn to morality in the law we have, the law that obligates judges in their roles as judges. As we saw, there are four ways by which morality enters into the law we have, and let us consider how it looks if we plug conventional morality in at each of these four points.

(1) The explicit incorporation of moral standards into legal standards

Consider the constitutional case first. As noted earlier, the U.S. Constitution explicitly requires moral judgments by judges as they exercise “the great power” of judicial review. Despite the rhetoric of many Supreme Court opinions – that judges should look to “the canons of decency and fairness which express the notions of justice of English-speaking peoples” (Frankfurter), “the canons of decency that mark the progress of a maturing society” (Earl Warren), “the values, so rooted in the traditions and conscience of our people as to be ranked as fundamental” (Cardozo), “the narrowest social tradition” (Scalia), etc. – using conventional morality in exercising the power of judicial review makes no sense. For remember, what is being reviewed is the product of consensus moral beliefs, a statute enacted by a representative legislature. It makes little sense for a court to use that same conventional morality to review an expression of it by a more representative body.

This general point is reinforced by a point specific to the rights-protecting clauses of the U.S. Constitution. Such rights become important when their support does not command a majority so that they will not win out in the political process. The idea that there are such minority rights against majority views again makes little sense if these rights are given conventional i.e., majoritarian interpretations. A right good against the majority only when the majority agrees with it is not much of a right. These arguments are unavailable when it is not constitutional law that incorporates moral standards, but is common law or statutory law. One argument common to all three kinds of law is based in language use. On the theory of meaning Moore have long thought correct, he says, when we speak we ordinarily refer to things whose nature guides our meaning. If I request that you “prospect for gold,” I expect you to bring me stuff that is really gold; “fool’s gold,” or other stuff commonly thought to be gold, will not be what is meant. The same is true of moral usages. If legislatures direct judges to find wherein lies the best interest of a child, or whether a petitioner for citizenship does or does not possess good moral character, they like all other speakers should be construed to mean what is really best or good, not what most people think is best or good.

It is possible of course, for prior judges, legislatures, or constitutional conventions to mean something else. It is possible they meant for judges to look to popular moral beliefs. It is even possible they meant for judges to look to their (the law-givers’) moral beliefs on these matters, whether such beliefs were conventionally accepted or not. But absent some special context making the existence of these special interpretive intents plausible, surely law-givers should be seen like other language users. Judges are to ascertain where the child will really be better off, not guess at what most people would think on the matter.

(2) The justification of the obvious law by the thoughtful judge.

As we have seen, the thoughtful judge justifies the use of obvious law like statutes by political ideals such as democracy and the rule of the law. It is this exercise that justifies judges in using the coercive power of the state to order the litigants before them to give up their property, their liberty, their children, and their lives. It is inconceivable to Moore that judges could ever feel satisfied in this justificatory task, if they repaired only to conventionally accepted versions of democracy, the rule of law, etc. For notice how personal is this question: what justifies me in doing what I am about to do?” That others think it fine cannot answer for me. “Do I think it’s fine? is the relevant question, and for that question only ideals that I accept as true can fit the bill.

(3) Filling in the indeterminacies in the law in hard cases.

In cases of conflicting legal standards, cases of first impression, and cases of penumbral application of legal standards – Fuller’s “hard cases” – conventional morals has perhaps its most plausible use. The fact that these “legislators” i.e., judges in hard cases, are not subject to the discipline of frequent, regular election might incline one away from the conception for which Moore had earlier argued. As many legal philosophers have noted that the views of judges in hard cases doesn’t reflect the continuity judges rightly sense, between what they do in hard cases and what they do in easier ones. On the “molecular legislation” view, judges do two quite different things: in easy cases they apply the law, and in hard cases they make new law. In hard cases there is an extension of what went before, not the fresh beginning suggested by the phrase, “judicial legislation.” Judges owe an obligation to extend the past in a way legislators do not.

Therefore, conventional morality should not be used in doing the interpretation required in hard cases. But how are we to conceive of “the past” to which judges owe fidelity in hard cases? Should we see the obvious law that is to be extended in hard cases as: (1) a reflection of the community’s moral beliefs? (2) an imposition of the law-givers’ moral beliefs at the time that law was laid down? or (3) a reflection of some underlying ideal of justice, partially and somewhat inaccurately expressed by the obvious law? If it is the first, then judges might well seek to extend that past consensus by bringing it up to date with the present consensus. If it is the second, then judges might well seek to extend that past imposition in light of those lawgivers own views of what they did. If it is the third, then judges should seek to extend that attempt to capture justice with their own best insights as to what justice requires. Which of these views to adopt is not be settled by history. It should not matter much how law-givers of the past viewed what they were doing. The question for judges is a more straight forwarding normative one. In Moore’s vicarious judging, judges should see law makers of the past as striving for justice, and should thus join them in the task of achieving it.

Conclusion
Moore has summarized the relationship between morality and law in the following manner:
(1) On one hand the existence of unjust laws (such as those enforcing slavery) proves that morality and law are not identical and do not coincide.

(2) On the other hand 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.

Further Moore says suppose law had no connection to morality. Suppose, that the content of the law we ought to have is fully determined by what a majority of citizens wants. Then to know what ought to be made law as a legislator is to know the results of the most accurate opinion surveys. It is morality in the law that makes law worthy of our intelligence and our interest. It is the morality in the law that makes the philosophy of law truly philosophical.

Bibliography
· Article : Four Reflections of Law and Morality by M.S Moore
· Article : Morality, the backbone of society by Wayne D. Leeper.
· Philosophy of Law in The Internet Encyclopedia of Philosophy.
· Morality and the Concept of Law, L. Murphy.

[1] According to Moore obvious law is the law, which the people know, like Statute made law.
[2] To form a concept or concepts of, and especially to interpret in a conceptual way: "Efforts to conceptualize the history and structure of the universe were already running into trouble because... the universe was not as uniform as had been assumed" (John Noble Wilford).

The author can be reached at: vasudha_tamrakar@legalserviceindia.com / Print This Article

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