So how can we best address this conflict that seems inherent to our modern social governing structures? When do we satisfy ourselves with what the current law says and when do we look beyond it to what is moral? And in case of a society with different groups having different moral codes, how do we reconcile among these if we need to look beyond the legal into the moral? These are some of the difficult questions that need to be asked and answered. We will only tackle here two broad situations where we are required to look beyond the legal into the moral.
Any legal corpus includes certain scope, jurisdiction, processes, and enforceability; all legal codes address particular subjects, apply to particular groups of individuals and particular geographies, are defined and changed based on certain rules, and are enforced by some form of physical power. Today there is no one Universal Law that includes all subjects and applies to all humans and to the entire universe. I am stating what is evident, naïve, but at the same time important and often forgotten. We need therefore to be careful when action is undertaken based on a certain legal code where it does not apply; in such situations, we need to look beyond what is legal to what is moral. This is for example the case when we justify breaching the right for privacy of non-US citizens by claiming that the US constitution does not forbid from doing it. We also need to be careful when action is undertaken in the name of some law when the legal code is inexistent, incomplete, undefined, or blatantly vague. This is the case for example when it comes to International Law today. Unfortunately, we repeat, the international legal system, if we can call it as such, is highly deficient both in terms of scope, processes, and jurisdiction. How can the legality of geopolitical action be subject to the veto power of five particular governments in the world, and we still put international law on the same pedestal as domestic law? It is as if we were saying that five members of the United States Supreme Court have veto rights that can render mute anything they do not desire. There are several international agreements in place today in the world, and several legal bodies the largest of which is the United Nations, but there is no one International Law on all subjects and for all jurisdictions. Absent of a satisfactory international legal code in terms of scope, jurisdiction, processes, and enforceability, we often need to look in international law beyond what is legal to what is moral. The long-term solution to the problem of international law is in completing the international legal code in the same manner as the domestic legal codes, but we remain alas miles and miles away from achieving this goal.
The second broad situation where we need to look beyond what is legal into what is moral is when the processes and enforceability of the legal code are compromised to the benefit of particular individuals or groups in society over the others. This is the case with dictatorships, rulings of the few, ethnical segregations, religious segregations, and the list is long. Here, an element of common sense and collective consciousness is necessary and cannot be circumvented in judging these situations. Our greatest moral and legal achievements have often been realised through this collective consciousness, through this aspiration for a better future identity, and through the acknowledgment of our common humanity and equality; these realisations are likely to continue to be our driving force in situations of legal uncertainty.
Legality vs. morality will continue to be a source of conflict for the modern man as long as Law is limited in scope and in jurisdiction; and this is not necessarily a bad thing. A world where Law dictates and regulates our every single behaviour is both dangerous and dull. Morality and Law are both, to some degree, cultural phenomena, and as our cultures proceed on the path of greater abstraction and intellectualisation so will these two concepts, as well as the nature of the conflict between them. It is important however not to forget the genesis and order of priority of these concepts in human affairs; they are often blindly mixed as politically suitable but intellectually unacceptable.