Law can be defined as a systematic implementation
of rules and policies which may be enforced by punishment, to contain the
actions of its members, while morality is a set of principles and values that a
society as a whole believes to be right and ethically acceptable. Today I want to emphasize on the importance
of morality in contemporary application of law, because without morality law is
simply an impractical concept, without having any macro level benefits.
Devlin's philosophy of law
argued that the collective judgment of a society should guide enforcement of
laws against both private and public behavior that was deemed immoral. According to Devlin, when a
behavior reached the limits of "intolerance, indignation and
disgust," legislation against it was necessary, whether or not it was in
line with the modern-day beliefs. This meant, whatever the law maybe, it must
be brought to fit the morals that were believed originally by a society, and
not change moral grounds with changing views of the social order. On the other
hand, Dr. Hart talks about how laws
should not be based only on popular moral consensus but if they follow
an official rigorous process to be formulated, they can and will always precede
morality. It is not that morality should not exist, but is more of
a private matter that if does not fall in line with law shall not have a legal
standing.
I agree that law is a political
system’s most esteemed weapon, but without morality law has no limits. Take
Pakistan as an example, for all technical and practical purposes there is a law
that exists in Pakistan. However, it is due to lack of morality that those laws
are not implied justly; only aiding the ones who create it.
3 comments:
It is true that many constitutions have laws which are against the sprite of Ethics and Morality. Just like these Laws we have a law to call Ahamdies to be non-Muslims.Another interesting thing is some thing which is part of Morality and ethics in one culture or Nation is very Immoral to another Nation It is a Counter-Culture example is Hijab in Muslim countries are compulsory and same thing is Immoral in France and other European countries
I agree with some of the points you made, however, isn't morality a subjective concept? Every individual decides for himself what he believes to be right or wrong, therefore everyone has their own set of morals.
Delvins philosophy is one I don't agree with. Your claim that without morality, law has no limits can be looked at from two different angles, one that you mentioned, and the other that since morals are different for everyone, how can we establish one set of morals that should be applicable to everyone? Wouldn't you agree with me if i said that this can be deemed as one of the main reasons for the unfair and barbaric punishments given by local judicial systems such as jirgas in rural villages. If the board of members of the Jirga think talking to the opposite gender is immoral and therefore announce a punishment for it, their view would differ from those that most of us hold, who see no harm in such an act. Therefore, I think following such an ideology where laws are based on what people believe to be moral or immoral can lead to great chaos.
The idea of law and morality is so complex that it opens up an entire pandoras box. If laws are to be based on morals, a huge argument stems up on how every individual differs in his opinions of what he deems as right or worng. How then can laws be based on morals of individuals? Perhaps what morality here refers to is the social norms or what the society as a majority deems moral and immoral. It should shift from a private footing to a public consensus and that is the only way to go forward. Without morality, laws become baseless and pointless. Why would you even have laws if they weren't meant to stop immoral and unjust actions? Laws ARE morality.
Just for clarification, laws should only be based on morals if the majority society upholds those morals not individuals because that can produce no outcome other than anarchy.
This is why when a society forms laws not in line with the social contract or the morality of the majority, rifts occur. Such can be seen in Maharashtra such an uproar has occurred for a law declaring 5 years of prison for beef consumption. The population is revolting against the fact that the government deems beef consumption a more immoral action in comparison to rape! Whenever the laws are not in line with the society's morals, such tensions are bound to occur.
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