The relationship between law and morality has troubled
jurisprudential theorists (and indeed, law students) for
centuries. Alexander Chau argues that the ultimate
unifier of human relations is the law rather than morality,
the latter serving only to divide society.
How the
F
Law and Morality:
Immoral Law is always Right
amed appellate judge Tom Denning once wrote: “Without
morality, there is no law.” He was dead wrong. Law is an
institution that is totally separate from the morals we learned
from our parents, our society, and our religion (if any). This isn’t
to say that some of today’s laws will individually coincide with
certain moral guidelines, like the rule against the capital punishment or the rule against stealing from your neighbour. However, they’re exactly that: coincidences that have been enacted
into law because of public opinion, economic certainty, etc. In
fact, the law isn’t even close to being a mirror of our society’s
‘ever-progressing views’: It’s the extra-moral result of endless
negotiations within a mosaic of individual minds.
Take an extreme, but telling, example. Today, our society
is one that allows the freedom of expression by neo-Nazis and
trade unions alike. Many view the raisons d’être and opinions
of these groups as ‘wrong’ and destabilizing in a healthy society.
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Yet, from the perspective of the law, the freedom of expression
was not designed to sort out the good from the bad. It was designed to protect, in the simplest way possible, offensive speech
and those who say it. Those of us who don’t practice racism or
socialism have nothing to fear, because we don’t push on the
limits of our right to free speech on a daily basis. However, anyone who sees the law as binding morality in our society must
inevitably have to consider imprisoning anyone who had a minority opinion. The law serves as a unifying force, while morality
cannot help but to split a nation into pieces.
Furthermore, the law shouldn’t be moral. It should be
whatever we want it to be, regardless of moral influences or
any standards of right and wrong. If we had a legal system that
was inherently moral, we wouldn’t be killing innocent unborn
children while claiming a right to life for all, nor would we be
sanctioning assisted suicide by doctors who have sworn an »