And, of more interest, how is it possible for legal and moral systems to improve over the centuries in the absence of the very rational or theological footing that modern philosophers have so effectively taken away?
If both are equally emotive and irrational, they are both equally arbitrary — making any selection between them only a product of accidental leanings or willful whim. No choice could be rationally defended. And yet, seemingly in spite of this problem, human beings do develop moral and legal systems on their own and later make improvements on them. What is the explanation? From whence do moral values come?
There are only mountains, rocks, gullies, winds, and rain, but no one anywhere to make judgments as to good and evil. In such a world would good and evil exist? However, let us make them perfectly rational and devoid of all emotion, totally free of all purposes, needs, or desires.
Like computers, they simply register what is going on, but they make no moves to ensure their own survival or avoid their own destruction. Do good and evil exist now? Again, there is no theoretical way in which they can. And thus they have no rationale for declaring a thing good or evil. Nothing matters to them and, since they are the only beings in the universe, nothing matters at all.
Enter Adam. Adam is a man who is fully human. He has deficiencies, and hence needs. He has longings and desires. He can experience pain and pleasure and often avoids the former and seeks the latter. Things matter to him. At this point, and only at this point, do good and evil appear. Such a being is, indeed, the measure of all things: of good things as good and of bad things as bad.
For what could it be? And, without him, good and evil could not exist. We will call her Eve. Interesting things begin to happen at this point. For, on the one hand, we have two people with similar aims who are capable of working together for a common cause. And so a complex interpersonal relationship develops, and rules are established to maximize mutual satisfaction and to minimize the effects of evil.
With rules, we now have right and wrong. And from this basic recognition of the need for cooperation ultimately come laws and ethics. But now let us suppose that these two people come to a fierce disagreement over the best way to perform a desired action. The two argue and seem to get nowhere. And then Adam pulls his trump card. Well, this is all new to Eve, and so she asks Adam, who seems to know so much about it, to provide a little more detail on these absolute standards.
So we can see that without living beings with needs, there can be no good or evil. And without the presence of more than one such living being, there can be no rules of conduct. Morality, then, emerges from humanity precisely because it exists to serve humanity. Theology attempts to step outside this system, even though there is no need beyond coercion for such a move.
When theologians imagine that human beings, without some theologically derived moral system, would be without any points of reference upon which to anchor their ethics, they forget the following factors which most humans share in common:. For these and other reasons, it should not appear strange that human beings can find common ground on the issue of moral values without having to appeal to, or even have knowledge of, a divine set of rules.
In fact, ironically, once religiously based rules are brought into any dispute, especially if there is more than one religious view present, the more the religious arguments are used the less agreement there is. This is because many religiously and theologically based values do not relate to each other or the actual human condition or the science of the world.
It is theological values, then, and not human-oriented values, that are the most baseless. For, with theological values, an arbitrary leap of faith must be taken at some point. And once that arbitrary leap has been taken, all values so derived are as arbitrary as the leap of faith that made them possible.
So, it is not the humanist who needs to offer an explanation for value. What explanation could be needed for the fact that people naturally pursue human interests and thus relate laws and institutions to human concerns? It is only when someone seeks to depart from this most natural of pursuits that any questions need be raised.
It is only when someone posits a law higher than what is good for humanity that doubts need be expressed. For it is here than an explanation or justification of a moral base makes sense. The burden of proof belongs on the one who steps outside the ordinary way in which morals are derived — not on the one who continues to keep his or her morals, laws, and institutions relevant, useful, and democratically produced.
By Fred Edwords There is a tendency on the part of many theists to assume that the burden of proof is on the nontheist when it comes to the issue of morality. Laws And Lawmakers Unthinkingly, people often assume that the universe is run in a fashion similar to human societies. An Absolute Point Of Reference At this point, it can be asked: how is it possible that the governed are able to rule themselves?
The Source Of Morality But does this completely solve the problem posed by the theist? The international Approach It is the lawyer's perspective which delivers the verdict. Yet there is something inherently implausible in adopting the lawyer's perspective as one fundamental methodological stance. There is no doubting the importance of the legal profession and of the judicial system in society.
It is however, unreasonable to study such institutions exclusively from the lawyer's perspective. Institutional approach seems much superior to its rivals. The institutional approach strives to present an analysis of a central political institution should be accepted as the analysis of law.
From the institutional point of view, the basic intuition is the starting point for further critical reflection. It is entirely plausible to regard the notion of law as bound up with that of a judicial system but what are the essential characteristics of a court and why are they important to the political organization of society? Three features characterize courts of law: 1. They deal with disputes with the aim of resolving them.
They issue authoritative rulings which decides these disputes. In their activities they are bound to be guided, at least partly, by positivist authoritative consideration. At the highest level of philosophical abstraction the doctrine of the nature of law can and should be concerned with explaining law within the wider context of social and political institutions. It shows how the inclination to identify the theory of law with a theory of adjudication and legal considerations with all those appropriate for courts is based on a short sighted doctrine overlooking the connection of law with the distinction between executive and deliberative conclusion.
Clearly, a theory of adjudication is a moral theory. It concerns all the considerations affecting reasoning in the courts, both legal and non-legal.
When the doctrine of the nature of law is identified with a theory of adjudication it becomes itself a moral theory. The doctrine of the nature of law yields a test for identifying law the use of which requires no resort to moral or any other evaluative argument. But it does not follow that one can defend the doctrine of the nature of law itself without using evaluative arguments. Its justification is tied to an evaluative judgment about the relative importance of various features of social organizations and these reflect our moral and intellectual interest and concerns.
Law and Morality In the modern world, morality and law are almost universally held to be unrelated fields and, where the term "legal ethics" is used, it is taken to refer to the professional honesty of lawyers or judges, but has nothing to do with the possible "rightness" or "wrongness" of particular laws themselves.
This is a consequence of the loss of the sense of any "truth" about man, and of the banishment of the idea of the natural law. It undermines any sense of true human rights, leaves the individual defenseless against unjust laws, and opens the way to different forms of totalitarianism. This should be easy enough to see for a person open to the truth; but many people's minds have set into superficial ways of thinking, and they will not react unless they have been led on, step by step, to deeper reflection and awareness.
Law is an enactment made by the state. It is backed by physical coercion. Its breach is punishable by the courts. It represents the will of the state and realizes its purpose. Laws reflect the political, social and economic relationships in the society. It determines rights and duties of the citizens towards one another and towards the state.
It is through law that the government fulfils its promises to the people. It reflects the sociological need of society. Law and morality are intimately related to each other. Laws are generally based on the moral principles of society. Both regulate the conduct of the individual in society. They influence each other to a great extent.
Laws, to be effective, must represent the moral ideas of the people. But good laws sometimes serve to rouse the moral conscience of the people and create and maintain such conditions as may encourage the growth of morality. Laws regarding prohibition and spread of primary education are examples of this nature.
Morality cannot, as a matter of fact, be divorced from politics. The ultimate end of a state is the promotion of general welfare and moral perfection of man. It is the duty of the state to formulate such laws as will elevate the moral standard of the people. The laws of a state thus conform to the prevailing standard of morality. Earlier writers on Political Science never made any distinction between law and morality.
Plato's Republic is as good a treatise on politics as on ethics. In ancient India, the term Dharma connoted both law and morality. Law, it is pointed out, is not merely the command of the sovereign, it represents the idea of right or wrong based on the prevalent morality of the people. Laws which are not supported by the moral conscience of the people are liable to become dead letters. For example laws regarding Prohibition in India have not succeeded on account of the fact that full moral conscience of the people has not been aroused in favor of such laws.
The total cost of such an attempt may well be greater than the social gain. The central themes of positivism are the contentions: firstly, that the existence of law rests upon identifiable social facts and, secondly, that it is necessary to maintain a conceptual distinction between law and morality.
In this essay I will examine the positivist assertion that law is identifiable independently of morality, with a particular focus on the theory of H.
A Hart. Law regulates and controls the external human conduct. It is not concerned with inner motives.
A person may be having an evil intention in his or her mind but law does not care for it. Law will move into action only when this evil intention is translated into action and some harm is actually done to another person.
All the individuals are equally subjected to it. It does not change from man to man. Political laws are precise and definite as there is a regular organ in every state for the formulation of laws. There are just different ways of thinking about the matter.
If this is so, how can the question be of more than merely rhetorical practical importance? Murphy suggested what he called a "practical political" method for settling the boundary of the law. The boundary of the law should be located where it will have the best effect on our self-understanding as a society. In order to illustrate what he had in mind, Murphy offered an argument for the conclusion that we should all be positivists. Following Bentham, Murphy suggested that a non-positivist view invites an uncritical attitude toward the directives presented by the state as laws.
Suppose that people regard what the state presents as laws as probably being laws. If this is so, because of the way law and morality are intertwined on a non-positivist view, people regard what the state is presenting as law as probably not that bad.
Suppose instead that a non-positivist view led someone to regard many of the legal directives in her state as unlawful. This might still lead to "quietism" because the solution to this problem would seem to be to demand that the state live up to its true nature rather than to really criticize the state.
He suggested that neither side is obviously correct. Murphy considered an objection of Dworkin's to Hart, modified so as to be pressed against Murphy's view. On Murphy's view, in the absence of widespread agreement about the concept of law, one might worry that there is no right answer regarding what the law is.
Murphy conceded that there are some cases in which this conclusion might follow but suggested that there is a substantial core to the concept of law that is widely shared and hence that there will be many cases in which the question of what the law is should be regarded as settled.
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