We can continue citing examples for long; legal and moral oppose each other every day and in different contexts. Torture may not be explicitly forbidden by law in some jurisdictions, but is it moral to turn a blind eye on it? Animal abuse is not illegal in many places, but what is our moral stance concerning it? Domestic violence may not be explicitly punishable by law in some cultures, but should we not do anything about it from a moral point of view?
All such examples are an illustration of the conflict between legal and moral that is a growing sign of our last centuries of intellectualisation and of our most civilised societies. But why is this happening? Was it always the case? And what can we do about it?
Law is rational; measured; composed; often precise; can be partially put to test and its social consequences measured; refuses to be swayed easily by subjective opinions; and represents our best cultural mode of addressing social conflicts. Law is necessary in some form for social governance and for the stability of societies, as through it physical power is better controlled. But Law is a branch of Politics, and as such, it can be subject to change, sometimes-rapid change, as well as politicking. Political abuse can be translated into legal abuse as it happens with many governing systems around the world. Morality, on the other hand, is of a higher nature. Morality precedes Politics in importance; it is (or should be) the guiding force of Politics. Morality is less precise than Law; can have a higher element of emotionality in it; its sources can be many (religious, cultural, rational etc.); but it is also less subject to politicking and compromised rhetoric. In Morality reside our collective consciousness, how we perceive ourselves or wish ourselves to be, our collective identity, and our ideals. It is generally accepted that we cannot always be one hundred per cent moral all the time, that we aspire to be moral but we may sometimes fail, and that our collective structure pulls us back in line when we stray away from what is moral in some instances. We are however supposed to act legally one hundred per cent of the time, and if we do not, there are (more physically harsh) consequences to bear.
Law and Morality were not however always that distinct from a historical point of view. Law and Morality as concepts have evolved with our cultural evolution as is the case of many of our social and cultural concepts. The distinction between Law and Morality seems first and foremost a question of where political power (and by extension physical power) truly resides in a society and where moral authority actually resides. In theocracies, and they are quite present in history, Law and Morality are more or less the same. But beyond theocracies, many rulers have historically combined both political and moral power either explicitly (such as with many monarchs outside Catholicism in Europe) or implicitly (by having the power to appoint or change the key custodians of Morality). In ‘Old Catholic Europe’, there were two entities with ‘divine rights’ competing, and they somehow serve as precursors to the kind of conflict we witness today in a more generalised way: the King, chosen by God to rule, and the Pope, head of the Church, also chosen by the Holy Spirit. In our days, the concept of a custodian of Morality or a monopoly over Morality has somehow faded away, with the exception of few cultures, and we find Morality to be held and updated collectively, rather than through the push of a particular individual or institution. This seems to be a direct result of the French Revolution, the American Constitution, and the consummation of the separation of State and Church during the Enlightenment Period. The disappearance of the caliphate in the Muslim World after the fall of the Ottoman Empire and the ‘un-deification’ of many rulers (e.g. the Japanese Emperor after World War II) contributed to a further geographical expansion of this concept of separation. In this separation, State and Law have precedence over particular personal, moral, or religious inclinations, and components of Morality make their way into formal application only through the legislative process, i.e. through becoming part of Law. In other words, Law indirectly reflects some components (but not all) of Morality through the political process. Political process is necessary when a society desires its governance to be influenced by the collective will in a way or another. But one of the unfortunate consequences of the political process is the appearance of this conflict between Law and Morality, the difficulties we previously described, and the subjection of Law to narrow politicking in many instances.
Not all what has been legal is moral, and many great civil rights activists were deemed in breach of law until they managed to acquire the right political support. Revolutionaries are considered illegal at the beginning of independence movements and become later on liberators and symbols of morality once they achieve a certain success. Civil disobedience against tyranny, refusal to torture someone when given an order to do it, and sheltering ethnically persecuted people from harm are all historical examples of actions that were considered illegal at some point by somebody to later become not only legal but also morally praiseworthy.
[To be continued].
JHTF
John H.T. Francis 