Tuesday, November 9, 2010

Law & Morality

The law, no doubt, embodies some moral values—it is, to a considerable extent, informed by moral intuitions. Unjustified killing, for example, is both morally repugnant and illegal. As is rape. But law and morality are not co-extensive. Law's aim is not to enforce morality. Consider the many immoral acts, such as lying when not under oath, or committing adultery (in most states), that go entirely unpunished by the law. Government peculations, too, are often shielded by the doctrine of sovereign immunity. And a man can sometimes stand by idly, despite being a good swimmer, and watch another man drown, yet escape any punishment. Osterlind v. Hill, (1928) 263 Mass. 73, 160 NE 301. To the court in Osterlind, it didn't matter that the defendant had a moral obligation to assist the drowning man—this poor man who held to the side of his capsized canoe for 30 minutes crying out for help while the defendant did nothing—the harsh fact was, he had no legal obligation.

Is the law, then, merely a subset of moral prescriptions and prohibitions? That is, does morality determine the content of the law? No. I don't think it does. Because in addition to leaving many immoral acts unsanctioned, the law also punishes some acts that are moral, or at least by most people's standards are not immoral. Many so-called white collar crimes fit into this category, such as insider trading, including the 6-month rule. (I mean, come on: Martha Stewart?! She didn't do anything immoral.) She does raise a social status issue, though, and it's worth noting that although buying, selling, and using illegal drugs may appear to be immoral activities, this is primarily because of the distasteful character of those who choose to engage in them despite their illegality. These activities are considered immoral, not because morality looks to the law for guidance, but because the law creates incentives for moral people to substitute into other activities, leaving the less moral to take their place. Then, the activity becomes distasteful—the result of a selection effect. Finally, note that morality among the "less moral" can itself be a crime. "Honor among thieves" is not condoned by courts. 

Although the law and morality overlap to a significant degree, they are two very different systems.

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