Answer Smeagol's Question (chibigohan) wrote in jurisprudentia,
Answer Smeagol's Question

Does Law have a Moral Basis?

I'm not a law student or a lawyer, but out of curiosity, I'd like to know whether you believe laws have a moral basis. I think, at heart, all law does have a moral foundation. Even if, say, the aim of law is to maximize economic efficiency in a society, that aim itself is moral, because it chooses "efficiency" as a worthy social goal over other, sometimes competing aims (for instance, equity). Also, I believe our common understanding of law is based on right and wrong-- it's wrong to murder, as opposed to it's merely inefficient to allow murder.
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Every single law legislates morality. Killing is bad. Stealing is bad. Lying and cheating are bad. Drugs are bad. Sexual assault is bad. Etc.
Surely this is too strong a claim. Driving on the left is illegal (in the U.S.), not because of any inherent badness, but because we needed to pick a side and stick with it (driving on the left here is bad *because* it's against the law, not the other way around).
But, who determines morality? Killing, stealing, sure - these are fundamental human morals.

But some other instances can be hazy to different people. Why are drugs bad? Which drugs are bad? Who determines it? Practicality, probably. And my favorite: why is it illegal for me to not weat a seatbelt while I'm driving? Is that immoral?

The government obviously believes it has the obligation to protect people from harming themselves. I don't necessarily disagree with it, either.

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We had a conversation in my Crim Law class that was essentially based on the question of where the laws come from (e.g. morality) and who decides what is and is not moral.

To preface the conversation, my professor went multimedia and played us the song "They" by Jem - the lyrics are surprisingly relevant to this conversation....

And to weigh in on the whole morality meets law issue, I think that we have laws in general because of morality, and I think the more severe the crime (felony instead of misdemeanor, etc.) the easier it is to see the morality. I agree that morality probably has very little to do w/ traffic ordinances, etc., but it has A LOT to do with other laws and how laws change (e.g. birth control, sodomy, pornography, free speech, etc.).
If the proposition "Every single law legislates morality" is true, then does it not follow that law creates a "moral" standard. If this is so, then one could rightly argue that law is the basis of common morals, which could encompass arbitrary, yet practical determinations of methodology such as selecting a side on which one should drive for a give locality.

Some of these common "morals" might be felt stronger as they would undoubtably be congruent with religious and cultural morals that one might prescribe to independent of the government's decree.

Just a minor interject form a logicians point of view.