Morality or Rights?

[Hauptman]

Virtually all people agree that murder is wrong and should be illegal, but the underlying reasoning can take two distinct turns. One rationale says that murder is wrong as an immoral act; the other rationale says that it is wrong in that it violates the rights of the victim.

This argument is the bottom line for most libertarians versus social conservatives. The prohibition of alcohol last century was a prime example of this morality versus rights argument, and we see it now with arguments regarding the war on drugs.

It would be easier if we had a clear basis in our legal history that supported one argument or the other, but we don't. Our legal system is highly invested in the Constitution and Bill of Rights, but we also have a strong Judeo/Christian tradition that points to the moral imperatives expressed by the founding fathers.

Is there a clear legal foundation for one position over the other? Do you have a preference? Would it help our society if we made a choice to take one position or the other as a legal foundation?

[Fencer X and Y]

Virtually all people agree that murder is wrong and should be illegal, but the underlying reasoning can take two distinct turns. One rationale says that murder is wrong as an immoral act; the other rationale says that it is wrong in that it violates the rights of the victim.

This argument is the bottom line for most libertarians versus social conservatives. The prohibition of alcohol last century was a prime example of this morality versus rights argument, and we see it now with arguments regarding the war on drugs.

It would be easier if we had a clear basis in our legal history that supported one argument or the other, but we don't. Our legal system is highly invested in the Constitution and Bill of Rights, but we also have a strong Judeo/Christian tradition that points to the moral imperatives expressed by the founding fathers.

Is there a clear legal foundation for one position over the other? Do you have a preference? Would it help our society if we made a choice to take one position or the other as a legal foundation?

Isn't the problem with morality systems is you get into a "whose morality are we talking about?" argument. Ideally morality should be the base for all your laws, but since so few of us can agree on what exactly is moral and what isn't we have to go with the second option. What is that option even called? I want to say ethical but maybe not.

[unlikelysuspect08]

Virtually all people agree that murder is wrong and should be illegal, but the underlying reasoning can take two distinct turns. One rationale says that murder is wrong as an immoral act; the other rationale says that it is wrong in that it violates the rights of the victim.

This argument is the bottom line for most libertarians versus social conservatives. The prohibition of alcohol last century was a prime example of this morality versus rights argument, and we see it now with arguments regarding the war on drugs.

It would be easier if we had a clear basis in our legal history that supported one argument or the other, but we don't. Our legal system is highly invested in the Constitution and Bill of Rights, but we also have a strong Judeo/Christian tradition that points to the moral imperatives expressed by the founding fathers.

Is there a clear legal foundation for one position over the other? Do you have a preference? Would it help our society if we made a choice to take one position or the other as a legal foundation?

You seem to have expressed, yourself that there is not a clear basis in our history which supported one argument or the other. I, myself, have not looked at this in depth, so, what I will describe is my own opinion.

This is actually something I have given a lot of thought, as of late. As I contemplate it, more and more, I am coming to agree with more Libertarian views. It has been a struggle to come to terms with it, but I am becoming convinced that it is the most right.

What I have to come to see is, that regardless of their basis (moral or, let's, for the sake of ease, just go with Fencer X and Y's term "ethical"), all laws are broken. They do not stop criminals. The laws most people keep are those that are not ones which would result in "victimless crimes," prostitution, for instance, but rather, murder, rape, etc. Statutes such as those which address "victimless crimes" that are so casually disregarded lead me to find truth in Sir Winston Churchill's quote, "if you have ten thousand regulations you destroy all respect for the law."

Therefore, I find no consequential use for any laws apart from those that protect my rights (the most basic of these are life, liberty, and the ownership of property), especially when, because of their absurdity, they do, in fact, seem to reduce the respect for the law in general.

That is the gist of my developing theory on the purpose and niche of law in our society, apart from the moral aspect. Morally, and these are only my opinions, so no arguments off topic please (I will not respond), I believe murder is wrong, recreational drug use is wrong, homosexuality is wrong, (I know, I know, remember, I will not argue with you, though I respect your opinion) adultery is wrong, etc.. However, I have come to the conclusion that because "people have different ideas of morality" (which I have my own opinions on, but again, that's a whole different animal) people should not refrain from those activities because that's what the law says, but because, it's the right thing to do. I do not believe it's the governments job to teach morals.

Though it was difficult for me to come to this point, I believe that the government/ law's duty is solely to protect my right to life, liberty, and the ownership of property.

[keith]

Virtually all people agree that murder is wrong and should be illegal, but the underlying reasoning can take two distinct turns. One rationale says that murder is wrong as an immoral act; the other rationale says that it is wrong in that it violates the rights of the victim.

Don't think this is the problem

After all, people reason in all sorts of different ways, to make that a basis for the problem you'd have to suggest that it leads to different conclusions concerning acceptable conduct. Don't think it does in this case.

[Fencer X and Y]

Don't think this is the problem

After all, people reason in all sorts of different ways, to make that a basis for the problem you'd have to suggest that it leads to different conclusions concerning acceptable conduct. Don't think it does in this case.

I think what Hauptman was saying was how should we decide all laws (not just which reason should we give for why murder should be illegal). Again as Unlikelysuspect has pointed out you will sometimes come to very different conclusions based on which justification you use. Yes murder is an easy one. How about recreational drug use? Unlikely thinks that it's morally wrong. I think that it's morally right. Should the law reflect his morality or mine?

[keith]

Should the law reflect his morality or mine?

Hate to break it to you but the law does not exist in some extra dimension alongside intrinsic moral value.

The law is simply a reflection of the will of the government. So if you care about the law all you are saying is that you care about politics.

I realise that as Americans you are all raised to view the constitution, and hence the law, as some almost sacred thing, but that's the American education system for you.

[Fencer X and Y]

Hate to break it to you but the law does not exist in some extra dimension alongside intrinsic moral value.

The law is simply a reflection of the will of the government. So if you care about the law all you are saying is that you care about politics.

I realise that as Americans you are all raised to view the constitution, and hence the law, as some almost sacred thing, but that's the American education system for you.

But shouldn't all laws be just? How do you make sure that a law is just?

[Hauptman]

Hate to break it to you but the law does not exist in some extra dimension alongside intrinsic moral value.

The law is simply a reflection of the will of the government. So if you care about the law all you are saying is that you care about politics.

I realise that as Americans you are all raised to view the constitution, and hence the law, as some almost sacred thing, but that's the American education system for you.

I'm not sure where you live, but U.S. law attempts to function based on certain underlying principles which are mostly codified in our Constitution. There isn't necessarily anything "sacred" about it; we appreciate it because we feel it is the best system around. You are obviously free to feel otherwise.

The discussion I'm looking for is if you think that governance works best built upon underlying principles, what do you think those principles should be?

Personally, I don't like laws generated at the whim of politicians or populist movements; I would like to see a philosophical underpinning to give understanding and consistancy in how the law is created and applied.

The hypocrisy that is so rampant among politicians of all stripes is aggravated by the fact that issues are decided in a philosophical vacuum with no solid logical basis, but merely decided by self-interest or by taking a position contrary to the opposing party.

This is not a discussion of real world issues necessarily, it is a hypothetical examination of how a legal system could work. But of course, applying any ideas to real world issues brings to light the hypocrisies that are so common.

[Hauptman]

Isn't the problem with morality systems is you get into a "whose morality are we talking about?" argument. Ideally morality should be the base for all your laws, but since so few of us can agree on what exactly is moral and what isn't we have to go with the second option. What is that option even called? I want to say ethical but maybe not.

Good point. So if for no other reason, legislating morality is impractical?

[fatfencer]

The jews..... no just kidding. Really.

Murder isn't 'wrong' it's illegal. Not everywhere and not all circumstances either. What makes something wrong first and foremost comes from a person's conscience, their inner rules for what constitutes how they feel they should be treated and thus, how they treat others. A society can make anythign a heinous crime. Just look at any states books and you'll see a bunch of scofflaws by todays' standards, but in yesteryear driving your donkey on Tuesday was a stoning offense!!! In Appalachia, of course.

Laws are a response to what people see as a minimum standard for civility. How do we get along? Why do we bother.

Laws are both descriptive and prescriptive.

Morality is JUST prescriptive. Also we have the problem of accepting just whose standards?

There will always be a certain amount of morality in legislation.. and it gets placed tehre largely by popular vote. Judeo-Christian Ethics are the standard on which our laws are based. They are so solely because there are so many
Christian followers.

You cannot legislate morality totally and absolutely but there will be some sort of balance struck between the majority who hold true to the ideal, and the conscientious objector.

Conversely you cannot totally remove morality from law because every person acknowledges, even if subconsciously, that laws are necessary to tell people what to do. That has to be based on something.

Some people believe murder is wrong, others understand their concept of justifiable homicide, others just KNOW its wrong cuz the Torah says so. Meanwhile in France, Passion Killings, as in you found your spouse in bed with another man, was just cause for acquittal if you did it on the spot and in a fit of rage. God Bless the French....

Here, the liberals would say that murder is murder despite the fact she was smoking his pole on Cheaters...

Morality is different in different societies. But the laws are generally similar. Why? Because everyone really has a commonality of belief about what rights they should have as citizens of any society. Where societies differ often isn't the LAW so much as the punishment for an infraction. Morality often has direct causality with the weight of punishment, if any.

Fatfencer

PS: In a nutshell rights are the part of law that is prescriptive. legislation of punishment is descriptive of what happens to you.

[I_luv_saber]

The law is simply a reflection of the will of the government. So if you care about the law all you are saying is that you care about politics.

However the government is (at least in theory ) simply an extension of the will of the people it governs. While people don't generally directly make laws, obviously, we do elect the lawmakers. As such, if the majority of the populace wishes to enforce their morals on society as a whole it will be done. Just look at the Prop 8 movement in California (not exactly a law, but an example of how the people can and do enforce morality). So, like it or not, the basis of law I think is morality (at least the majority of it... there will always be elements of both). Should it be that way, maybe not, but that's how it is now.

With that in mind you could say if you care about law you care about (or at least respect) the set of morals which defined it.

I realise that as Americans you are all raised to view the constitution, and hence the law, as some almost sacred thing, but that's the American education system for you.

Eh... what?

So, we all think the Constitution is sacred... so why have Amendments been made to it? And what is the end of that tangent? That obeying and respecting the law is wrong or somehow folly? We should all just obey the laws that we care about? That's anarchy, my friend.

[DavidX]

You seem to have expressed, yourself that there is not a clear basis in our history which supported one argument or the other. I, myself, have not looked at this in depth, so, what I will describe is my own opinion.

This is actually something I have given a lot of thought, as of late. As I contemplate it, more and more, I am coming to agree with more Libertarian views. It has been a struggle to come to terms with it, but I am becoming convinced that it is the most right.

What I have to come to see is, that regardless of their basis (moral or, let's, for the sake of ease, just go with Fencer X and Y's term "ethical"), all laws are broken. They do not stop criminals. The laws most people keep are those that are not ones which would result in "victimless crimes," prostitution, for instance, but rather, murder, rape, etc. Statutes such as those which address "victimless crimes" that are so casually disregarded lead me to find truth in Sir Winston Churchill's quote, "if you have ten thousand regulations you destroy all respect for the law."

Therefore, I find no consequential use for any laws apart from those that protect my rights (the most basic of these are life, liberty, and the ownership of property), especially when, because of their absurdity, they do, in fact, seem to reduce the respect for the law in general.

That is the gist of my developing theory on the purpose and niche of law in our society, apart from the moral aspect. Morally, and these are only my opinions, so no arguments off topic please (I will not respond), I believe murder is wrong, recreational drug use is wrong, homosexuality is wrong, (I know, I know, remember, I will not argue with you, though I respect your opinion) adultery is wrong, etc.. However, I have come to the conclusion that because "people have different ideas of morality" (which I have my own opinions on, but again, that's a whole different animal) people should not refrain from those activities because that's what the law says, but because, it's the right thing to do. I do not believe it's the governments job to teach morals.

Though it was difficult for me to come to this point, I believe that the government/ law's duty is solely to protect my right to life, liberty, and the ownership of property.

LOL!
L
O
L

[dcmdale]

I'm not sure where you live, but U.S. law attempts to function based on certain underlying principles which are mostly codified in our Constitution. There isn't necessarily anything "sacred" about it; we appreciate it because we feel it is the best system around. You are obviously free to feel otherwise.

The discussion I'm looking for is if you think that governance works best built upon underlying principles, what do you think those principles should be?

Personally, I don't like laws generated at the whim of politicians or populist movements; I would like to see a philosophical underpinning to give understanding and consistancy in how the law is created and applied.

The hypocrisy that is so rampant among politicians of all stripes is aggravated by the fact that issues are decided in a philosophical vacuum with no solid logical basis, but merely decided by self-interest or by taking a position contrary to the opposing party.

This is not a discussion of real world issues necessarily, it is a hypothetical examination of how a legal system could work. But of course, applying any ideas to real world issues brings to light the hypocrisies that are so common.

I think that I am hearing three questions:

1. Is our chosen form of government good? Our current form of government does not dictate a underlying legal theory. Lawmaking in the U.S. ultimately (although quite indirectly in some cases) comes as a result of elections and therefore reflects the philosophic mishmash of public opinion and its ability to be swayed by politicians. Americans are best characterized by a naive form of Scottish Common Sense Realism giving rise to a naive form of Natural Law moral/legal sensibility.

2. Would choosing a consistent underlying legal theory be better? That probably depends on your view of the chosen system. Something tells me that you would be less than happy if the U.S. were to become a Sharia nation.

3. Is there a sound basis for choosing a legal theory? The NEA has taken a great deal of pride for their part in remolding the U.S. from a Judeo-Christian nation to one built on a secular moral model. I am not sure how valid that boast is: to me, it appears to be a generally liberalish, Christianish moral code stripped of reference to a Judeo-Christian God, but not endowed with any intelligible philosophic underpinning. "Why is murder wrong? It just *is*. Can't you just feel it? If not, I guess you are just not a moral person." Obviously, I am not the right person to defend that position.

[keith]

I'm not sure where you live, but U.S. law attempts to function based on certain underlying principles which are mostly codified in our Constitution. There isn't necessarily anything "sacred" about it; we appreciate it because we feel it is the best system around. You are obviously free to feel otherwise.

...but as you point out exactly how those principles where arrived at is a bit vague although;

Americans are best characterized by a naive form of Scottish Common Sense Realism giving rise to a naive form of Natural Law moral/legal sensibility.

Pretty much nails it.

The problem is that if the constitution is not based on some absolute authority (moral or otherwise) it has no greater value than any other, arbitrary, set of principles.

Americans, in general, don't like to view the values in the constitution as arbitrary.

The discussion I'm looking for is if you think that governance works best built upon underlying principles, what do you think those principles should be?

The trouble here, as has been observed, is that some of us fall into the category of being uncomfortable with an eternally fixed legal framework. Which means that muddling along is about as good as you are going to get.

Personally, I don't like laws generated at the whim of politicians or populist movements; I would like to see a philosophical underpinning to give understanding and consistancy in how the law is created and applied.

One mans populist movement is another mans struggle for liberty

The hypocrisy that is so rampant among politicians of all stripes is aggravated by the fact that issues are decided in a philosophical vacuum with no solid logical basis, but merely decided by self-interest or by taking a position contrary to the opposing party.

Which reminds me of my inner feminist;

The personal is political.

If you don't like, well it's not like you live in Iran. After all you have the advantage of constitutionally protected rights.

This is not a discussion of real world issues necessarily, it is a hypothetical examination of how a legal system could work. But of course, applying any ideas to real world issues brings to light the hypocrisies that are so common.

Well hypothetically then. My inner naive Scotsman is fond of Rawls.

[keith]

That's anarchy, my friend.

No that's Libertarianism. Which, as a philosophical proposition, has never managed to deal with the problem of anarchy.

[Hauptman]

I think that I am hearing three questions:

1. Is our chosen form of government good? Our current form of government does not dictate a underlying legal theory. Lawmaking in the U.S. ultimately (although quite indirectly in some cases) comes as a result of elections and therefore reflects the philosophic mishmash of public opinion and its ability to be swayed by politicians. Americans are best characterized by a naive form of Scottish Common Sense Realism giving rise to a naive form of Natural Law moral/legal sensibility.

2. Would choosing a consistent underlying legal theory be better? That probably depends on your view of the chosen system. Something tells me that you would be less than happy if the U.S. were to become a Sharia nation.

3. Is there a sound basis for choosing a legal theory? The NEA has taken a great deal of pride for their part in remolding the U.S. from a Judeo-Christian nation to one built on a secular moral model. I am not sure how valid that boast is: to me, it appears to be a generally liberalish, Christianish moral code stripped of reference to a Judeo-Christian God, but not endowed with any intelligible philosophic underpinning. "Why is murder wrong? It just *is*. Can't you just feel it? If not, I guess you are just not a moral person." Obviously, I am not the right person to defend that position.

I never asked whether our form of gov't is good; I think it is, although far from perfect. And while an underlying philosophy was never explicitly laid out the concept of Rights, and their protection, while thrown in at the last minute, has proven to be the single most important and unique aspect of our system. So I was wondering if others see the implicit principle that I see, and whether it should be explicitly stated.

You are right that we could have a consistant yet unlivable system such as Sharia, but I'm looking at consistancy in the current environment. Most of the conflict in our political system is based on the fight over morality, so the basic question of whether we should even try to legislate morality is key.

Granted law is based on public opinion and political infighting, but all that takes place within the framework of the Constitution as interpreted by the Supreme Court. So we do have a basic, if vague, framework that we work within. Couldn't that framework be less vague? Couldn't we work towards a more workable universal code like physicists search for the single unifying force?

[I_luv_saber]

No that's Libertarianism. Which, as a philosophical proposition, has never managed to deal with the problem of anarchy.

Tomato, tomahto

[dcmdale]

I never asked whether our form of gov't is good; I think it is, although far from perfect. And while an underlying philosophy was never explicitly laid out the concept of Rights, and their protection, while thrown in at the last minute, has proven to be the single most important and unique aspect of our system. So I was wondering if others see the implicit principle that I see, and whether it should be explicitly stated.

I think that our existing system has done a good job of creating an environment where differences of opinion on political and legal philosophy have (largely) been able to be resolved through political process rather than violence. I would hate to see a system where people who believed in a moral basis for law were disenfranchised or that their belief could not be expressed within the political process. Same for libertarian beliefs.

You are right that we could have a consistant yet unlivable system such as Sharia, but I'm looking at consistancy in the current environment. Most of the conflict in our political system is based on the fight over morality, so the basic question of whether we should even try to legislate morality is key.

The current environment reflects a diversity of opinion on political and legal theory. That is a good thing. Conflict in the form of political dialogue over those issues is a healthy reflection of that diversity.

Granted law is based on public opinion and political infighting, but all that takes place within the framework of the Constitution as interpreted by the Supreme Court. So we do have a basic, if vague, framework that we work within. Couldn't that framework be less vague? Couldn't we work towards a more workable universal code like physicists search for the single unifying force?

IMHO, it is precisely that vagueness that gives our government the resilience that it has shown.

Questions to refine my understanding of your position: From the philosophic perspective of most Americans (such as they have), you set up a false dichotomy between "rights" and "morality." Most Americans would emphatically view "rights" as deriving from "morality." They support (to the extent they do) civil rights for blacks because slavery and Jim Crow laws were "wrong." We support free school lunches for the poor (most of us) because it is "right." We argue about gay marriage and abortion because we are conflicted about the rightness and wrongness of them (and aggravated by the judicial system that has stepped out of its Constitutional role by imposing its opinions).

Are you arguing that "rights" have an existence apart from morality? Merely as a byproduct of political/legal decision making? Can those "rights" disappear as easily as they were decided? If society decides that it doesn't like Jews or blacks or babies or Gays or Christians, does that terminate their right to live? If not, what is the philosophic underpinning that establishes human rights if that isn't some kind sense of right and wrong?

[Bayou Bum]

Couldn't we work towards a more workable universal code like physicists search for the single unifying force?

Single unifying force = GOD

There, I solved that one.

[Hauptman]

I think that our existing system has done a good job of creating an environment where differences of opinion on political and legal philosophy have (largely) been able to be resolved through political process rather than violence. I would hate to see a system where people who believed in a moral basis for law were disenfranchised or that their belief could not be expressed within the political process. Same for libertarian beliefs.


The current environment reflects a diversity of opinion on political and legal theory. That is a good thing. Conflict in the form of political dialogue over those issues is a healthy reflection of that diversity.


IMHO, it is precisely that vagueness that gives our government the resilience that it has shown.

Questions to refine my understanding of your position: From the philosophic perspective of most Americans (such as they have), you set up a false dichotomy between "rights" and "morality." Most Americans would emphatically view "rights" as deriving from "morality." They support (to the extent they do) civil rights for blacks because slavery and Jim Crow laws were "wrong." We support free school lunches for the poor (most of us) because it is "right." We argue about gay marriage and abortion because we are conflicted about the rightness and wrongness of them (and aggravated by the judicial system that has stepped out of its Constitutional role by imposing its opinions).

Are you arguing that "rights" have an existence apart from morality? Merely as a byproduct of political/legal decision making? Can those "rights" disappear as easily as they were decided? If society decides that it doesn't like Jews or blacks or babies or Gays or Christians, does that terminate their right to live? If not, what is the philosophic underpinning that establishes human rights if that isn't some kind sense of right and wrong?

Actually, I am making exactly that argument that Rights are independent of morality.

Now obviously there is overlap, as with my example of why murder is illegal. But generally Rights protect the behaviours that you wish to pursue while legislating morality attempts to restrict the behaviours that you wish to pursue.