Saturday, July 25, 2009
Separation of Morals and Law
Since we started studying legal positivism we've been talking a lot about the idea that laws should be separate from morals, and vice verse. Personally I don't really understand how we can arrive at this idea that laws and morals are separate. If you ask me, the laws themselves are based upon a set of universal morals amongst all of the citizens in the society. I mean, for the most part we all agree on the laws that have been laid upon us, and if we don't as a society we have the ability to change them. If we look at murder for instance, I think we can all agree that it's morally wrong, which is why we designed laws to protect us from it. In a nutshell that's how I feel about the topic; but I would like to hear some other opinions on this, so I suppose my question would be: Isn't law ultimately based upon our moral values as a people, and is thus inherently tied to morals now?
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A positivist would probably reply to your post by defining law as a set of rules guiding our behavior. These rules don't correspond with any sort of moral code, they're meant to promote and maintain social order.
ReplyDeleteEverybody connotes murder with immorality, yet it persists. Additionally, some might consider murder as a form of vengeance as a morally justified act. Given the incongruencies between each person's moral code, simply stating that a law's validity depends on it's moral basis seems unreasonable to me.
I agree, its rather hard probably nearly impossible to separate law from morality. The law in essence lays down what is wrong and right, which is a moral debate. So I never really understood how you could truly separate the two. Positivism attempts to separate the two and base law on social fact, I took it as that law is not derived from some divine source. Just that people make the law and not a higher being or power, but those same people construct the law based on some religious, moral, or personal scale which makes me view legal positivism as irrelevant.
ReplyDeleteI agree that law and morality are very closely knotted in almost every aspect of law, just as what was previously stated. I feel that even in the instances we discussed in class such as speeding and zoning laws, these too have a moral value to them. This can be seen through examples such as zoning laws preventing a strip club or liquor store being built in a neighborhood or too close to a school. Although these laws may not appear to have a moral value, there are values rooted within them.
ReplyDeleteI also agree that the law and morality can go hand in hand with one another. I think that one of the best examples that are used is the murder example. From the law aspect, there are specific laws that are in place to penalize us for our actions if we take the life of another. However, from the morality aspect, we all know that taking the life of an individual is morally wrong and that if we would be to do so we would have to be just in our actions. I feel that they are tied in together because we know that there is a law that is in place for taking the life of an individual and we know that if we break that law that there will be consequences for our actions. We then weigh these consequences morally thus determining whether or not to break the law and whether or not it would be worth it.
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