STIGMERGY: The C4SS Blog
Thoughts On Legality And Morality

What is the proper relation between legality and morality?

To friends I stated that what was morally required is not what is legally required. This post is an exploration of my evolving thought on this issue. In the process of thinking further about it, I discovered a revised train of thought. As Ayn Rand stated:

“Rights” are a moral concept—the concept that provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationship with others—the concept that preserves and protects individual morality in a social context—the link between the moral code of a man and the legal code of a society, between ethics and politics. Individual rights are the means of subordinating society to moral law.

Let me note that I only partially agree with Ayn Rand’s statement above. Legality can relate to morality, but it doesn’t, of necessity, have to. It’s possible for something to be immoral without being a violation of a libertarian law code. This is due to the fact that the only legal obligations one has are to respect the individual rights of others You may have non-consensual moral obligations that are only legitimately enforceable through non-violent means. This would still be eminently libertarian as long as people were being pressured for rational and individualistic pro-liberty reasons. The obligation to help customers without discriminating on grounds of irrational bigotry comes to mind. No one can be ethically forced to help another through legal force, but a person can be non-violently pressured to do so. Other examples include an obligation to engage in contextually justified mutual aid. You can’t rightfully have the product of your labor seized for this purpose, but you still have a moral obligation to do so.

A libertarian law code completely divorced from morality would be a nihilist one. How can you justify the defensive use of force that would be permitted by such a code without invoking a moral reason? You can’t. It would mean that libertarianism was nothing more than a subjective preference with no moral weight. That is no basis for building a substantive legal system. Libertarianism is a value laden ideology and this is preferably reflected in its laws. In the absence of this, it would simply be authorizing a coercion filled subjective brawl among competing wills. That kind of Hobbesian scenario is not conducive to liberty. It’s compatible with a chaotic tyranny. A world where different warlords or feudal lords compete for power and control over others would be created. Do I contradict myself by claiming that non-moral libertarian law is nihilistic and that morality is not of necessity related to legality? No, because I am not claiming that all of morality needs to be the basis of a legal system. I just argue that some moral rules need to inform the legal foundations of a libertarian society.

The final thing to discuss is when things are both moral and legal. This happily resolves the problem of whether to make something ethical mandated by law. The enshrinement of ethics into law allows one to discharge their moral obligations without fearing punishment. It’s precisely valuable for this reason. One example is murder. It’s both immoral and preferably illegal to commit an act of murder. Another example is rape. It’s once again both immoral and preferably illegal. We could multiply these examples further, but I wish to bring this post to a close. I encourage my readers to leave comments and think critically about what I’ve written. It’s always fun to receive feedback and constructive criticism. I only ask that my readers respectfully reply rather than insult me. I look forward to your responses!

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