Law and Morals: the Perennial and Necessary

• Publication year: 1979
• Citation: Vol. 2 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 2, No.2SPRING 1979

Law and Morals: The Perennial and Necessary Tandem

Peter J. Riga (fn*)

The relationship between law and morality has never been terribly clear in the American mind. On one hand, there has been the attempt simply to identify the two. On the other hand, there has existed a deep suspicion of all attempts to relate the two. Traditional Western jurisprudence, at least before Austin, tried to follow a middle course between these two extremes. It is particularly important today, when law occupies such an important dimension in American life, that lawyers once again reexamine this relationship. Law is infinitely more than procedural technique; but it is something less than a religion or an ethical system. Law presupposes an ethical system and attempts to maintain and promote that system in the concrete lives of citizens. Law is, above all else, a teacher. This essential core of a legal system often is forgotten, to the confusion and detriment of that system.

I.

"Morality" is only slightly less difficult to define than "law." We know, however, there is an intimate and inextricable relationship between the two. It is like defining the relationship between church and state: the relationship is clear and the balancing delicate; if one is absorbed in the other, the result is tyranny, or superstition, or both. One cannot be absorbed by the other and if it is, we have neither church nor state.(fn1) The relationship of law and morals, similarly, is one of tandem and tension.

Both law and morals concern who and what man is, that is, human existence. Although wolves do not argue about the merit of running in packs, man always argues about, and seeks to define, his existence. It is this very quest that defines man as human. Man is free, therefore he is responsible and moral; man ; relates to others in community, therefore he needs law whereby his freedom and his relationships can be channeled for their maximization.(fn2) Freedom and law are both a possibility and a limit. That is what the medieval schoolmen meant when they said that man achieves his highest freedom only under law; homo liber et legalis.(fn3) Without law, man falls into the confusion of anarchy or into the tryranny of the stronger.

To be free does not mean the ability to choose one course of action over another; to say man is free to choose in this way really means that these choices are acts of will that aim at achieving a certain end, and to which man bends his energies or focuses his enthusiasms. But all these acts of will we call expressions of freedom, already presuppose man understands what freedom is. To be free is to be able to find meaning and give significance to our existence.(fn4) Law is one aspect of that endeavor in that law embodies the moral values that give a society significance and meaning in history.

It should therefore be clear that any and every law imposes some moral vision, explicit or implicit, against which the law is judged. It is not true to say the law itself is morally indifferent even though the various principles of interpretation and application might well be. Law always refers to some moral vision. The law is teacher to the extent it instructs us about the moral order we hold as a society. Morality and legality are mutually dependent phenomena in every society. And because man is a limited being, he can only be legally free.

Man is limited in relation both to himself and to others; it is here we encounter the relationship between morals and law. Law regulates relationships of diverse kinds: for example, persons, groups, families, property, estates, crimes, and commerce. Man does not possess unlimited freedom, but freedom in relationship to other human beings who are his moral and legal equals under the law. Here lies the touchstone of the whole democratic legal system, which becomes legitimate only by the consent of the governed. The people have to first consent in some way to give any human meaning to laws.(fn5) Thus, the relationship between law and morals touches a profound cord in human evolution. Man is free, but limitedly free; man in freedom relates to his equals in freedom, but is limited by the very nature of the freedom and the relationship. Therefore, the nature of human relationships demands law; without law there is no freedom, only the rule of the strongest.

All of this is not terribly novel to Americans living under limited government, each equal to one another under the law. Lawful freedoms are always possessed in association with one's fellows. The American notion of the relationship between law and morals was not concocted from the top of the brain rationalism of the eighteenth century (Aufklarung) which purported to start de novo. Rather, it reflects a historical product, woven through the bloody pages of history: the concept of limited freedom under limited government under law freely consented to by individuals who only through this consent become a people. In a true sense, this people rules itself.

The American proposition, in reviving the distinction between society and state that had perished under Absolutism, likewise renewed the principle of government's incompetence to legislate religion and thought. Government submits itself to judgment by the truth in society; it is not itself a judge of the truth in society. Freedom of the means of communication, whereby ideas are circulated and criticized, and the freedom of the academy (the range of institutions organized for the pursuit of truth and the perpetuation of the intellectual heritage of society), as well as the freedom of the church, are immune from legal inhibition or governmental control. This immunity is a civil right of the first order, essential to the American concept of a free people under a limited government. Its shorthand version is the first amendment to the United States Constitution.

II.

The very notion of a "free people" has a special meaning in the United States. Part of the inner structure of the American ideal of freedom, as old as Western jurisprudence itself, has been the profound conviction that only a virtuous people can be free. It is not an American belief that free government is inevitable; only that it is possible, and that its possibility can be realized only when the people as a whole are inwardly governed by recognized imperatives of universal moral law: "The constitution makes our conventional political morality relevant to the question of validity; any statute that appears to compromise that morality raises constitutional questions, and if the compromise is serious, the constitutional doubts are serious also."(fn6) The idea that only a virtuous people can be free is not novel to American jurisprudence; in Western Culture, that idea goes back to Plato and Aristotle.

The American experiment reposes on Lord Acton's postulate that freedom is the highest phase of civil society.(fn7) It also reposes on Lord Acton's further postulate that the elevation of a people to this highest phase of social life supposes, as its condition, that they understand the ethical nature of political freedom.(fn8) The people claim this freedom, in all its articulated forms, in the face of government; in the name of this freedom, multiple limitations are put upon the power of government. But the claim can be made with the full resonance of moral authority only to the extent it issues from an inner sense of responsibility to a higher law. In its highest phase of freedom, civil society demands that law should not be imposed from the top down, but should spontaneously flower outward from free obedience to the restraints and imperatives that stem from inwardly possessed moral principles. The success of a political experiment depends upon the virtue of the people who undertake it.

Likewise, institutions that would pretend to be free with human freedom must in their workings be governed from within and made to serve the ends of freedom. Political freedom is endangered in its foundations when universal moral values, upon whose shared possession the self-discipline of a free society depends, are no longer vigorous enough to restrain the passions of greed and shatter the selfish inertia of men.

As Learned Hand so ably stated:You may ask what then will become of the fundamental principles of equity and fair play which our constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say what will be left of those principles; I do not know whether they will serve only as counsels; but this I think I do know-that a society so riven that the spirit of moderation is gone, no court can save; that a society where the spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.(fn9)

Hand is expressing the familiar jurisprudential axiom common in Western Civilization from Plato and Socrates, through Augustine and Aquinas: the health of a society depends not on the quantity nor even the quality of its laws, but upon the values the laws presuppose and express. When laws no longer express and embody these values, they become empty forms-social pathology. Both politicians and citizens today are thoroughly confused because they believe in nothing and they stand for nothing...