(1) Positive law obviously differs from ethical norms. Many laws have nothing to with such norms, but simply enable certain actions to occur, like the bequeathal of property or the making of contracts. Other laws are immoral but still law.
(2) Nonetheless, it's a point that W gives away when he refers to "legitimacy" (a normative concept) that any total set of laws will not long survive if it diverges too far from the moral sense of, if not the cmmunity as a whole, at least from the compromose between that the dominant groups demand and what the subordsinate grounds are willing to put up with. Such laws will be seen as illegitimate and face widespread disobedience either retail or wholesale. (Prohibition is an obvious case in point in the retail sense.)
(3) Nor is the legal positivist move convincing that legitimacy refers mere to what people _regard_ as ethically acceptable and therefore the question its actual ethical correctness can be dropped out. The only raeson that laws that on balance are regarded as ethically unacceptable will face prewssures to change is because people thing they are actually ethically wrong. Most people are not in practice relativists.
(4) It is perfectly sensible to speak of the moral law as long as one does not confuse it with the positive law enforced by the state. It is no more puzzling than to speak of the laws of nature, also not enforced by the state. What people mean by the moral law is just the rules, noems, obligations, duties and the like taht one ought to follow. Obviously people differ about this, but that does not mean they are talking nonsense.
(5) The way it is decided whose morality guides the law is politics. In a democratic societym various interesty groups fight it out, compromise, and reach some sort of accord, typically procedural, about whose moral views will predominate -- rarely trump. In less democratic societies that ate stable, the ruling group imposdes its moral conception as far as it can without creating outrage, instability, and revolt.
(6) Although I am a great defender of the necessity of law in a complex society, W is mistaken that all organized societies have required law if that means rules laid down by authoritaive bodies and enforced by specialized institutions like courts and police. Icelandic society apparently did not have these institutions for many hundreds of years, see Miller's book on this sibject or Posner's review of it in his Overcoming Law. In addition Ellickson has a fascinating study of Order Without Law that is available both as a book and a law journal articvle, explicating how in the Western US,a mong other places, people in fairly complex commercial contexts in an advanced industrial society solve their disputes without recourse to the law. And many hunter-gatherer societies, I believe (Charles can confirm this I believe) had no such institutions either, but lasted for tens of thousands of years.
--- Wojtek Sokolowski <sokol at jhu.edu> wrote:
> Joanna:
>
> > Is it not possible to conceive that a moral
> principle can
> > exist apart from a church? And, if it can, is it
> not possible
> > that we might want to think about how we want to
> organize our
> > lives around such a principle?
> >
> -- snip
>
> > But people don't act morally because they follow
> laws.
> > Most people have no clue what the law allows them
> or forbids
> > them to do.
> > People act the way they act largely due to the
> culture in which they
> > have been raised
> > and because of the way in which they have been
> raised.
> > They also act morally because of the extent to
> which they are
> > capable of
> > love.
>
> I think your second passage answers your first one,
> and the answer is
> negative because morality is based on particular
> informal experience. How
> then could we decide whose morality is to guide the
> law?
>
> The law is a codified system that defines the
> standards of conduct and sets
> penalties for transgressions. It is not a moral
> compass, it does not tell
> you what is right and what is wrong - but a
> conventionally accepted set of
> rules telling people what they cannot do and what
> will happen if they do it.
> The only requirement is that it is sanctioned by a
> legitimate authority and
> that the rules it sets are enforceable. The
> legitimating authority maybe
> elected - which is dear to our hearts and minds -
> but it does not have to -
> it could be a hereditary monarchy or a theocracy.
> All that matters is that
> it is genuinely legitimate in a given society.
>
> It is easy to imagine that in any heterogeneous
> society, especially the US,
> it is not humanly possible to have a conventionally
> accepted set of rules
> based on the morality of a particular group. Aside
> the fact that such
> morality would most likely be xtian in this country
> - what would be
> accomplished by grounding law in morality? Would it
> increase legitimacy or
> enforceability? Certainly not! Au contraire, it
> would increase partisan
> bickering and bring enforcement to a standstill.
> Not to mention the fact
> that it would almost certainly create more
> inequality by giving a privileged
> position to those whose morality happen to
> "sanction" the law. That would
> certainly make the current system much worse off.
>
> A conventionally accepted legal system, while
> certainly imperfect, is the
> closest thing to universal norms that can be humanly
> achieved - albeit it
> does not mean that all legal system achieve that
> universality to the same
> degree. Why jettisoning it for something with the
> known track record of
> producing partisan bickering and discord?
>
> > How can that possibly be the only thing that
> matters?
> > And why do you insist that only a church or a
> theocracy could
> > articulate
> > moral law?
>
>
> There is no such a thing as "moral law" - it is like
> guinea pig - neither
> from Guinea nor a pig. We can only have moral norms
> OR laws - they may but
> do not have to overlap, but they are grounded in two
> very different
> principles - voluntary adherence to a norm (either
> shared with the community
> or not) vs. the enforceable obligation to follow a
> rule established by a
> legitimate authority.
>
> I can understand that an attempt to create the
> hybrid "moral law" is
> tantalizing for those who would want to replace
> external authority with
> voluntary adherence - such "moral law" would be the
> mechanism ascertaining
> orderly resolution of inevitable conflicts. I am
> afraid, however, that this
> is not possible for number of reasons - chief of
> them described in
> situationist conceptions of social relations - and
> we are stuck with
> external authority and its laws, whereas moral norms
> are limited to our
> private choices. In fact, I am not aware of any
> human society or even a
> complex group organized totally on the principle of
> voluntary adherence to
> shared norms that survived more than one generation
> of the original
> founders.
>
> Wojtek
> _______________________
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