Notes on the Concept of Law

Notes on the Concept of Law

1. Consider the sentence forms “It is illegal to A” and “It is immoral to A” where A is a type of action (we could also consider “It is impolite to A” and “It is imprudent to A”). These are superficially similar, syntactically and semantically. Both have the logical form of universal quantification: “for any action x, if x is of the type A, then x is illegal/immoral”. Both contexts are intensional to some degree: certainly not truth-functional and arguably referentially opaque—it may be illegal/immoral to kill human beings, but is it illegal/immoral to kill the most dangerous species in the universe (assuming these to be co-extensive)? Both sentences have normative entailments (or corollaries): one ought not to do what is illegal or immoral. But there are also important differences. You can say “It is against the law to A” but it sounds funny to say “It is against morality to A”. You can necessitate a moral principle but not a legal one: “Necessarily stealing is immoral” is true but “Necessarily stealing is illegal” is not. We can paraphrase the legal sentence with “It has been declared illegal to A” but we can’t paraphrase the moral sentence with “It has been declared immoral to A”, since it might not have been so declared. You can pass a law but you can’t pass a moral principle. And clearly the two types of sentence are not synonyms nor even express the same facts: “law” and “morality” do not co-denote. Despite these differences, however, the two domains are tightly connected, though the connection is controversial. Laws can be wicked and immoral but morality can’t be (as opposed to a person’s moral beliefs)—so laws can be criticized morally but morality (itself) can’t be. Nevertheless, laws at least purport to be moral and can be assessed morally—they are not beyond the reach of morality (as taste in food or clothes may be). So the distinction between them is not a complete severance.

2. We can ask what kind of speech act is performed by uttering “It is illegal to A” as we can for “It is immoral to A”, and a familiar list presents itself. Is it a statement of fact (a “descriptive” statement), a command, an expression of emotion, a threat, a prohibition, a promise, an exhortation—or some (or all) of these? Moral utterances invite the same kind of list. In both cases these questions are separate from the question of semantics, specifically truth conditions, and are mainly beside the point (a given sentence with a fixed meaning can be used to perform an endless number of speech acts, semantics being separate from pragmatics). The question of truth conditions is the central question: are the two types of sentence true in virtue of the same kind of thing (fact, state of affairs)? And here there is a marked difference: laws hold in virtue of declarations of a certain sort, but morality does not depend on declarations. This is why a divine command theory of law is not a category mistake while it is for morality (Euthyphro could have been right about what makes something a law). According to “legal positivism” laws arise from human stipulations or decisions or agreements—legislative acts–and therefore they can come to exist at a certain time and go out of existence at a certain time (when they are repealed). But the immorality of stealing is not something linked to time and legislation in this way. We could put this point by saying that a legal system is a “social fact”—one created by a group of people who are responsible for its existence. But merely calling laws social facts doesn’t distinguish law from morality, since a moral system in a society is also a “social fact”: what distinguishes the two is that law has its origin in legislative declarations while morality does not.

3. Some have supposed that “good” denotes a simple unanalyzable property, but no such view has been held for “law”. That is as it should be because it is not difficult to analyze the concept of law into several components (or no more difficult than other complex concepts such as knowledge or game). Thus we can venture the following definition: a law is a legislated norm backed by sanctions. That is certainly not true of a moral precept. We need to bring in sanctions because they are so characteristic of a legal system and because without them law has no bite—people won’t obey laws without sanctions. A possible world in which there is a system of law governing a society but there are no sanctions associated with it is not a real possible world. The sanctions provide prudential motives for action (morality provides its own motivation). A prime constraint on legal legislation is that contradictory laws shall not be passed, and there is a distinct possibility that this could happen if the legislators are not careful (contradictions are not always obvious). But there is no such danger from morality, which is internally free of contradiction, not being the result of human belief or declaration (like reality in general). A legal system is a kind of propositional artifact and it can have defects and gaps in it. Hence laws can be in principle inconsistent as well as immoral. This is why there is no plausible “legal realism” like moral realism—because law is not mind-independent: it is immanent in human practice.

4. We should not exaggerate law’s independence from morality, distinct though these systems are. As noted, laws purport to respect moral principle and can be criticized for failing to do so. Also they arise from motives of a broadly moral nature: they are intended to serve the common good (or at any rate the good of certain preferred types of person). They are not stipulations made in a vacuum but designed to further moral aims. A dilemma has been supposed to arise here: either laws are inherently ethical or they are not. If they are, then law and morality are identical or overlapping domains; but if they are not, then law has no moral force and there is no such thing as legal obligation. It seems to me that there is a third way here: this is the idea that law constitutes a secondary morality existing alongside the primary morality. Law acts like morality without being morality, at least as morality is ordinarily conceived by philosophers. There is a rough analogy with primary and secondary qualities: the primary qualities characterize basic reality while the secondary qualities exist beside them in closer proximity to human sensibility. But both are qualities of objects; it isn’t that secondary qualities are not qualities at all. Similarly laws are moral edicts but they are not identical to more basic moral edicts. Thus we can readily convert a moral precept into a law, as when we declare stealing illegal (or slavery). It doesn’t lose its moral standing by being so converted; indeed it inherits that standing. But it now belongs in a separate cognitive system subject to different constraints and standards. We can imagine beings whose whole moral outlook is constituted by laws (indeed some humans are like this) and it would be wrong to declare them morally void. Children occupy this cognitive territory when their notion of morality is fixed entirely by the commands of parents. We really have two systems of morality in our heads, between which it is easy to get confused; it is not that law removes itself from the realm of morality and becomes completely value-free—as if it were nothing but so much social engineering. This explains why people are often so torn when they perceive certain laws to be fundamentally immoral: this is a conflict within their moral faculties not just a conflict between morality and the extra-moral. The analogy with etiquette may be helpful: are the rules of etiquette simply detached from moral rules, since they are certainly not identical to moral rules? No, because good manners are regarded as a secondary form of morality—parasitic perhaps but not devoid of moral clout. One really ought to have good manners (as socially determined) out of consideration for the feelings of others. We shouldn’t be “etiquette positivists” holding that good manners have nothing moral inherent in them, yet we shouldn’t simply identify etiquette with morality. We have a kind of secondary morality here, not an abrupt switch from the moral to the non-moral. We should picture our moral faculties as consisting of a central core of basic moral principles surrounded by a penumbra of outlying moral systems (habits, proclivities). Law, like etiquette, is an application of morality suited to certain ends, suitably supplemented and adapted. We need to be expansive and pluralist about the nature of moral obligation.

5. Are laws rules? This is not a helpful way to think. They are clearly not like the rules of a game precisely because the practice of law is not a game. The rules of games prescribe (and proscribe) actions that aim to achieve ends by indirect and inefficient means (see Bernard Suits), but the “rules” of law don’t tell us how to play a game using such means—we must obey the law by the most efficient means possible. Nor is it clear what the purpose of legal rules might be—ditto for so-called moral rules. We can talk this way if we like but the theoretical or conceptual payoff is minimal at best, and is likely to promote forced analogies and misleading conceptions. Breaking the law is not like breaking the rules of chess: if you commit a murder it would be strange to be told that you are going to jail for life because you broke the rule against murder; rather, you are going because you murdered someone. The law is no more rule-like than morality.

6. One’s reason for obeying the law can only be prudential (avoiding sanctions) or moral (the law codifies the good); there is no such thing as a specific form of legal obligation or reason for action. In the case of a law perceived to be wicked the only reason to obey it is prudential. However, since the law is a secondary form of morality it does allow for an extra layer of reasons governing our actions: for we now have two sorts of moral reason for acting. One hopes these harmonize (similarly for etiquette) but they might not and then one has a conflict within one’s overall morality. A part of you may judge that a particular law is too strict and inflexible in certain circumstances, going by your core morality, but you obey it anyway because you think that it is basically a good law not wide of the moral mark. The situation is not so different from what we find within core morality itself, because here too we have different systems that don’t always harmonize—as with deontological precepts and consequentialist principles. Arguably, we have two coexisting moralities within us, which don’t always see eye to eye; well, our attitudes to the law are similar in that our thoughts about the law are themselves morally suffused. There are many moral “oughts” not just one, and each occupies a place in our total moral outlook. So the dilemma “moral versus non-moral” as applied to the law is too simple. Legal moralism is thus to be preferred to legal positivism (construed as denying that laws carry any moral weight in themselves), though it is a mistake to try to reduce legal obligation to moral obligation (again, compare etiquette). In any case, there is no category of reasons for obeying the law beyond the moral and prudential, so nothing sui generis about legal obligation.

7. There can be wicked moral beliefs and practices as there can be wicked laws. In the former case wickedness is relative to correct belief: moral reality can correct erroneous moral belief. But in the latter case we can’t say this, not with any plausibility anyway: if a law is wicked we can’t say that it is wicked relative to the correct law, as if this existed independently of human legal systems. There are no ideal laws that we are trying to capture and possibly failing to capture—a legal reality outside of legal belief and stipulation. True, one legal system can be superior to another, but there are no objective laws that set the standard—laws outside of human practice. Morality is the proper source of criticism of laws not supposed ideal Platonic laws. It is the same with etiquette—it is subject to moral criticism but not criticism from some supposed ideal set of rules of etiquette (as it might be, the etiquette of the gods).

8. It may be useful to distinguish between laws as they exist objectively in various social institutions and laws as they are understood by people subject to them. After all, laws only get purchase on people’s conduct by way of their mental representation of them. And the law might have different functional properties in its two manifestations. People often have an imperfect understanding of the law as an objective institution while carrying around with them their subjective idea of what the law requires of them. A philosophy of law should address both topics. In particular, the authority of law really depends on how people understand it, i.e. their disposition to accede to its demands results from their own subjective representation of it. Maybe the external phenomenon doesn’t function as a moral system for people, but their internal representation may: this is where the secondary morality exists and operates. Internalized law functions as an ancillary moral system capable of providing moral reasons even if external law does not. How people think of the law does very often correspond to what they think the law ought be, and that is a moral “ought”. It is the same with rules of etiquette: what the prevailing norms objectively are in a social group is not the same as how individual people conceive of these norms (this can give rise to much social comedy). It is the latter that functions as a secondary moral system.

9. I started by comparing “It is illegal to A” with “It is immoral to A” noting the linguistic similarities. But there is a semantic difference that makes all the difference: the former statement makes implicit reference to certain kinds of symbolic acts while the latter does not. An action is illegal only because it has been declared to be so by some authoritative body: being illegal requires being said to be illegal. So the original statement is tacitly metalinguistic, being equivalent to “Acts of type A have been declared illegal”. But the corresponding moral statement is not metalinguistic, because morality does not depend on human stipulation or decision (or divine). But this important difference does not preclude morality from entering into the law, as if it made the laws merely a set of facts about what people have declared. Laws must proceed from moral motives (possibly misguided) and can be criticized in the light of moral considerations; they are not value-free social facts. Law is better described as a secondary moral system linked to the primary one, though not reducible to it. Imagine a society that instituted a set of laws governing prudential behavior: you must eat this and not eat that, no going out in the cold without warm clothing, no watching too much TV, etc. The aim of these laws is purely to improve the individual’s wellbeing not to govern interpersonal relations. It would be strange to say that this system of laws has nothing intrinsically to do with prudence just because some of the laws might be misguided, and strange too to maintain that the laws are the same as the precepts of ordinary prudence. The laws are something additional to, but reflective of, the underlying precepts of prudence. In time they might become a secondary system of prudence, especially given that sanctions are applied for non-compliance.    [1]

Colin McGinn          

    [1] I wrote up these notes after reading Nicola Lacey’s biography A Life of H.L.A. Hart (2004). I have read nothing in the literature of the philosophy of law but found myself thinking about the questions raised by my reading of this book. These notes merely record my thoughts and reactions and make no claims beyond that. They are not intended for publication.