Law & Morality - The Man Responds

In his most recent post, Conroy responds to my assertion that law and morality are not co-extensive. He helps to clarify the relationship, makes some excellent points, and raises several fascinating issues. Here is my response:

First, it is true that adultery is not always immoral. The same can be said of killing, lying, and stealing. I would add, though, that the word "adultery" carries a negative connotation and a presumption that the exceptions mentioned by Conroy don't apply. In an open marriage, for instance, I doubt either spouse would describe their behavior as "adulterous," and independent observers may or may not agree. Consider the difference between the terms "murder" and "killing." "Murder" is an unjustified killing, by definition. According to the predominate moral code of our society, murder is immoral, but killing need not be: self-defense is not immoral. The term "adultery," like "murder," implies wrongfulness—in this case, deceit, infidelity, "cheating." People might choose a different  term to describe extra-marital sex in the examples that Conroy raises. The more neutral term "extra-marital sex" is an example; perhaps "swinging" for an open marriage would be another. It's also important to note that some cultures regard the act or practice of adultery as more or less immoral than others, which supports Conroy's point.

Law & Morality - Counter-Point

by Conroy

I felt compelled to respond to The Man's latest post where he argued that the law and morality are not co-extensive. Instead, the two systems can be modeled as a venn diagram where there is some overlap between what acts are covered by law and what acts (and attitudes) are covered by morality, and some exclusive regions of both, actions that are immoral but legal and actions that are moral but illegal. The Man's conclusion is that law and morality while addressing many of the same activities, are very different systems. I'd like to explore this argument further.

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.