Karlee Dillon
Doctor Lutz
Jurisprudence
Law and Morals
When law is thought of today, it is often the case it is viewed as a collection of
rules or regulations that prevent people from performing certain actions. In many
cases this is true, however, there is much more to law than just the restrictions it
imposes on citizens. Who creates the law, who enforces the law and what the law
should be, are all important aspects that should be taken into account. It is an oftendebated controversy whether or not morals should be separate from law. Despite
the popular vote for morals to be separate of law, I disagree with the majority. Law
and morals should not be separate, but correlate with one another.
Amongst the many political theories that exist today, legal positivism is
avidly working for the separation of law and morality. According to legal positivism,
law should be strictly scientific. It is a literal practice of the study of what “is”. In a
sense, one could say this theory has given our government and society an excuse to
surrender responsibility of living virtuously rather than viciously. When law and
morals are separated, chaos ensues and people start to put blame on irrational
thoughts and reasoning. A modern example of this would be any local terrorist
attack such as a shooting or bombing. Due in part to the lack of a set code of morals
for our society, it is scarce that anyone follows ethical rule. Instead of recognizing
that there is such a distinction and existence between virtuous people and vicious
people, society blames people’s wrong doings on mental illness or something of the
sort. A good criticism of positivism is that, “the most important features of law are
not to be found in its source-based character, but in law's capacity to advance the
common good, to secure human rights, or to govern with integrity”.1 If morals were
incorporated into law, society would have a better understanding for the truth of
virtue versus vice.
To understand the true purpose or meaning of law is a key factor in
understanding why morals and law should not be separated. Aristotle states,
“…common advantage also brings them together insofar as they each attain the
noble life. This is above all the end for all both in common and separately”.2 Aristotle
means that the purpose of law is to help people grow in virtue. Saint Thomas
Aquinas also talks about the essence of law in his Treatise. According to Aquinas,
there are four contributors that make a law. To be a law, it must meet the
requirements of being an ordinance of reason, promote the common good, made by
one who is in charge of the community and is promulgated.3 To be a true law, all
four criteria must be met. In all most all cases in our government and law system we
have today, these criteria are not met. Pertinent to the essence of law are the
different kinds of law according to Aquinas. In each case of these laws, there is a set
code of morals that are interwoven with them. This makes a great difference in the
way a society will function.
Fred Miller, "Legal Positivism", The Stanford Encyclopedia of Philosophy (Fall 2012
Edition), Edward N. Zalta (ed.), URL =
<http://plato.stanford.edu/archives/fall2012/entries/aristotle-politics/>.
2 Fred Miller, "Aristotle's Political Theory", The Stanford Encyclopedia of Philosophy
(Fall 2012 Edition), Edward N. Zalta (ed.), URL =
<http://plato.stanford.edu/archives/fall2012/entries/aristotle-politics/>.
3 Thomas Aquinas, “Question 90 : The Essence of Law”, Treatise on Law (The
Complex Text), Alfred J. Freddoso.
1
Overall the benefits of keeping law and morals interwoven are greater than
that of continuing to follow the positivist trend our society currently lives in. With
law and morals in a close relationship with one another, justice for all people is
more attainable and it would be easier to promote the common good in a society of
chaos and relativism.
Bibliography
Aquinas, Thomas “Question 90 : The Essence of Law”, Treatise on Law (The Complex
Text), Alfred J. Freddoso.
Miller, Fred "Legal Positivism", The Stanford Encyclopedia of Philosophy (Fall 2012
Edition), Edward N. Zalta (ed.), URL =
<http://plato.stanford.edu/archives/fall2012/entries/aristotle-politics/>.
Miller, Fred "Aristotle’s Political Theory", The Stanford Encyclopedia of Philosophy
(Fall 2012 Edition), Edward N. Zalta (ed.), URL =
<http://plato.stanford.edu/archives/fall2012/entries/aristotle-politics/>.