Introduction
The question of drawing a distinction between law and morality is a complex one, since in some cases legal positivists have emphasized that the distinction is legitimate. Still, there are oppositioners, who considered it ineffective. Ultimately, the law and morality are connected and that there can be no ‘value-neutral’ legal code—although, according to the natural lawyers, there is no cross moral norm by which the law must shape itself. The function of morality in upholding the law is critical. The qualifier ‘objectively’ obscures its ultimate point of uncertainty, which is alluded to in the tautological phrase ‘rule of recognition.’ The secularized legislation, like the secular state, relies on the success of its people’s consciences, just like the secular state depends upon the existence of Christianity in civil society. The morality and empathy play a huge role in the law system and this paper is aimed to prove it.
Even if it is merely for the sake of research, it is worthwhile to learn about the contents of morality. Ethics and morality are referred to as ‘earthy’ in Jeffrey Brand’s work on the philosophy of law. He says that for philosophers, morality is not a ‘secret area’ that deals with ‘superstition, tradition… [and] religious dogma. Instead, it is ‘the broadest sense’ of good and wrong that morality deals with. At the end of his brief introduction to moral topics, he emphasizes that while rational people may disagree on some moral questions, there is still a ‘wide consensus’. that certain actions are wrong. Others include murdering and torturing as well as polluting the environment. People of ‘reasonable intelligence’ believe that these practices are morally repugnant in modern society.
For Brand, the basis of right and evil lies not in studying some timeless canonical scripture or priestly catechism but rather in watching the common ways modern individuals seem to characterize moral right and wrong. This gives rise to a somewhat human understanding of morality in Brand’s work. Such actions are wrong is intuitive, although the basis of this intuition is not examined. Still, it has been implied that this intuition comes from custom so that one can term the attitude human, even with all its stress on ‘reasonable individuals reaching moral conclusions.’. As a result, the reason in question has nothing to do with rationally ascertaining the good but rather helps to conjure up pictures of a non-exceptional and usually functioning member of the community.
Brand is perfectly accurate in emphasizing a non-mystical aspect of morality. The assumption that the law is in accordance with unchanging moral principles that we can discover in any way we choose is what should be discarded. However, the assertion that the law can be emptied of any moral values is unjustified. Imagining a legal system free of values is to imagine a legal system that does not exist – even in the absence of any extraterrestrial moral constraint, the law is fundamentally rooted in the affirmation of some values and moral standards, even though they are not conscientiously recorded in the law books. To imagine a legal system free of values is to imagine a legal system that does not exist.
It is necessary to consider the case of a morally difficult public issue, such as the presence of the death sentence, which serves as the best illustration. There is no difference between those who support and oppose the death penalty for the same reasons. Some may see the sentence as necessary to discourage some heinous crimes (or appropriately punish severe offenders). In contrast, others may find it disgusting for reasons of enormous public expense or an insult to the dignity and worthiness of all human beings. Moral principles serve as a cornerstone in all circumstances, from warm-humanistic intuition to cold-rationalization.
The Relationship Between Law and Morality
Law and morality overlap, but the separability theory may hold no causal relationship between the two concepts. Laws represent the values of a society, even those taken for granted, which is why they are so important. Even the greatest utilitarian explanation for the death sentence cannot be detached from any form of perceived moral value in the case of the death penalty. For instance, one accepts the death sentence despite being against all principles.
In this case, it is reasonable to assume that they find help in the death penalty because it ensures public safety on our streets; the death penalty provides a sufficient deterrent for behavior that could risk their own or someone else’s life. Even if their concern for other people’s lives is ultimately self-interested, these are still moral categories: their concern for other people’s lives requires the existence of some form of a moral rule. This strict rationalization of how one can relate to others still concerns ‘right and wrong in the broadest sense,’ even if one abides by the golden rule as a sort of fundamental ethical axiom for entirely self-interested reasons.
Regarding the legitimacy of the death sentence in the United States, it is not difficult to detect even the moral significance of the institution’s continued existence. Treason, espionage, and murder, including hostage-taking, are only a few crimes under this category’s umbrella definition. With these considerations in mind, it is possible to argue that no moral values are being communicated in this instance – the only thing that exists is deterrence. As a result, according to this line of reasoning, rules as draconian as the death sentence exist to compel people to adopt a particular way of life, and that ‘Covenants, without the Sword, are simply words, and of no strength to secure a man at all.’.
Even yet, we are nevertheless required to act in accordance with a set of rules for the greater good: the welfare of the state, the perfection of society, and so on. Quibbling over whether or not this is a moral function loses all value since every demand for allegiance before a sovereign must be predicated on the premise that it is correct. Other than the threat of being crushed, one should observe a law because not doing so would lead to a ‘war of all against all.’
The Implications of Legal Positivism
Our current situation is analogous to the Brechtian question: What does it mean when someone breaks an established law and when someone creates an established law? We are faced with the extreme contingency of the law, which is still too young to explain itself in accordance with time-honored traditions or be bathed in the waters of moral sanctity at this peculiar moment, when legality and crime cannot be distinguished—a point that manifests itself in circumstances of civil war or great social upheaval—and we are presented with the total contingency of the law. There are a few exceptions to this rule, such as in regimes where the law is consolidated into war engines like police, gendarmes, or even armies.
The only thing left is a struggle between opposing interests and the eventual victory over the other. Russian civil war was a perfect illustration of this, as both sides sought to build ‘tough-minded Vlast,’ which Hobbes describes in Leviathan as an idealistic kind of government. The occult power of the state, which may raise abduction, murder, and robbery from criminality to the dignity of the law, is the ultimate content of any ‘rules of recognition.’ The Vlast, which translates to ‘the power,’ stands for this occult authority.
As a result, there is a complicated relationship between morality and the law. Law and morality are inseparable, but the relationship being discussed is not an Aristotelian one. The law does not exist to fulfill some pre-existing ‘common benefit of all’ or actualize the good’s form. The law is self-serving in that it produces its good in enforcing it. There can be no law without morality since morality acts as the law’s guiding myth or its twisted halo in a less severe form; therefore, it is impossible to separate the two. The separation of law and morality is impossible because the law generates its good and because morality is ‘internal’ to the law (rather than something external). There would be no ‘values’ in the law, even in an ideal world. This is not only because individuals who draft the law have their moral ideals ingrained in them; the law itself contains morality.
Opinions of Legal Positivism Scholars
An early positivist like Hobbes would underline this: the law is closely linked to justice and injustice. All injustice implies is ‘the not performance of covenant,’ and justice is ‘whatsoever does justice.’ Even if you agree with Hobbes that right and wrong are intrinsically linked to the question of justice or injustice, it is important to note that these questions are not predicated on the presence of law.
Unlike natural lawyers who believe that the moral Good comes first (and that it is the law that approaches morality), Hobbes thinks that the law itself comes first, generating its inner good. This is the polar opposite of natural law. We can reject Hobbes’ legal positivism without necessarily rejecting Aquinas’ metaphysics of law, which Hobbes’ legal positivism dispenses. The fact that laws and morality differ from one judicial process to the next is due solely to the authority to enact their changes from one system to the next if we accept Hobbes’ priority of law over right.
However, this discussion of sovereignty as the source of law has not gone unnoticed in the past. For Hart, there is no ‘legally unlimited legislator’ in current legal systems. It is irrelevant whether or not there is a real-life sovereign, as long as any entity, whether institutional or otherwise, has the authority to exclude itself from the law. Even though all three parts of the US government, including the legislative branch, are subject to the law, in an emergency case, they might be suspended, and the authority is given to other methods for a certain period. True sovereignty exists only in states of exception, even if constitutional governance binds all authoritative authorities to the rule of law. Real sovereignty can only exist if one can halt the regular functions of existence.
Sovereignty outside the legal system is a real possibility, although it exists only in theory in most current legal systems. Hart’s ‘ultimate rule of recognition,’ which is ‘usually observed by the public,’ is previously mentioned by Brand. The ‘rule of recognition,’ even if it is true that law-abiding citizens are not constantly afraid of punishment, can only be based on the strength of police dogs, barbed-wire fences, and a long-lasting jail system. People are aware of this, regardless of whether or not they agree with it. For example, an abstract desire for a better society does not exist (and ultimately amounts to nothing); hence, it cannot be used as a basis for a rule of recognition.
At its core, this power embodies the state’s authority since it is wielded ‘in the end instance’ by the state. When discussing the relationship between law and morality, one should descend from heaven to earth in our search for a definition of what the law is. Taking no other premise than the presence of men and women and the methods by which they arrange their survival, what can we say about the state other than that it is a mechanism that may be used to ‘keep social strife at bay?’ A harmonic, self-regulating gemeinschaft would eliminate the necessity for governmental machinery and the need for a legislative framework.
Conclusion
Finally, there is no way to evaluate the legality of the legal system without it being put down and declared as self-evident or supported by sufficient power to ensure that it will never be overturned. Law’s ‘foundational violence’ only fades from memory with time and experience. Then it is up to moral opinion to adorn it with swaths of divine justice or natural right. ‘nothingness,’ the point of contingency at which law is established and declared as the law, can only partly mask any legal system’s complete vacuity; it is ‘nothingness.’
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