Should we respect laws that violate our sense of morality?
Law and Morality — Laws should be changed if they are morally wrong.
When we think about the law, some of us may adopt a moral outlook.
“Laws should be passed only if they are moral. If a law is morally wrong, it should be changed.” (The Author)
For instance, if there was a law that mandated us to beat up the third person we saw every day, we’d probably try to lobby against that because of a fundamental moral principle to not seriously harm innocent people. Or, if there was a law that enshrined Andrew Tate
podcasts into the school curriculum, we should repeal that ASAP ’cause it violates our moral principle of telling the truth.
This kind of perspective is in support of what’s called natural law. Natural law sees moral facts as an essential component of what gives law its authority and legitimacy.
We famously see natural law thinking in Martin Luther King Jr’s Letter from Birmingham Jail.
“How can you advocate breaking some laws and obeying others?”
The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all.’”
On the other hand, some of us might say, “I may not like a law, but it’s a law.” It doesn’t matter if I think the death penalty is morally okay or not. If the law says it is a consequence for some crimes here, then sentencing someone to death here is legally legitimate.”
These people side more with legal positivism which states that there is no necessary connection between law and morality. Maybe it’s because you think there is no such thing as “fundamental moral principles.” As philosopher Kelsen argued, the validity of legal norms is dependent on other norms which is dependent on other norms, and so on, until it reaches the top, “the basic norm” that everything depends on, and because nothing can go on infinitely, that basic norm is just assumed to be true. There isn’t actually any rational justification for it.
There’s no higher norm to justify the basic norm or else it would no longer be the basic norm. And Kelson is like, if the foundation underlying
all our legal norms is just an assumption, then technically, anything could be legal. Thus, legal legitimacy to him is judged solely based on “authoritative issue and social efficacy.” But Kelsen’s not saying you HAVE to obey every law just because it’s legitimate.
It’s just that morality and law belong to two completely different spheres, so it’s the judiciary’s legal obligation to uphold the law, and the moral decision to follow or reject a law is your subjective, individual choice.
If you want to break the law, you deem it immoral and face the punishment that comes with it, that’s an individual choice. He clearly wanted to be a good person to be as difficult as possible. In contrast, maybe you still side with legal positivism, but you disagree with Kelsen and do think there are fundamental moral principles, it’s just that those morals can exist separately from the law.
In most legal systems, there is a significant overlap between moral facts and legal facts. For example, we probably think killing is morally wrong and in virtually all legal systems, what do you know, killing is also illegal. But correlation doesn’t equal causation.
This overlap doesn’t mean human-made law’s purpose is to capture or articulate some higher-up moral law. Maybe it just overlaps for the sake of overlapping.
Now of course, it’s not like laws must not be moral, it’s not like we’re trying to stop laws from being moral, they can and even usually do express what we believe to be morally correct. But the legal positivist says they don’t have to.
In essence, the central question that divides natural law and legal positivism is whether morality is necessary to law. In other words, does the legitimacy of a law depend on its moral value? Now, the philosophical discussion around this topic has been going on for centuries.
So for this article is going to revolve around a specific case:
The Grudge Informer case.
- During the Nasty regime, a German woman was having an affair and wanted to get rid of her husband. Knowing that it was illegal to criticize the Nasty government, the woman reported her husband to the authorities for insulting Hitler, causing him to be arrested and sentenced to death. After the regime fell, the West German court accused the woman of “illegally depriving a person of his freedom.” In her defense, she argued that her actions were in line with Nasty law at the time and thus, she had acted within legal grounds. Her husband did insult Hitler and it was punishable by death back then, so she had done nothing illegal. But the court saw Nasty law as completely invalid because it was immoral, and so in their eyes, this woman was defending herself with illegitimate laws. Thus, they deemed her actions to have been “‘contrary to the sound conscience and sense of justice of all decent human beings’”, ultimately finding her guilty.
Now there were two papers written about this case that legal philosophers always talk about: One from a guy called HLA Hart and one from Lon L. Fuller.
But I want to backtrack and talk about two different people first: Radbruch and Kelsen, who I mentioned while discussing legal positivism in the article.
Both Radbruch and Kelsen were Jewish, so as a result, they greatly suffered under the Nasty regime. And you’d think because of that, they’d both leap at the opportunity to delegitimize Nasty law.
Well, actually, that was only true for one of them: Radbruch.
See, Radbruch believed that all the atrocities of Nasty Germany occurred because legal positivism had gotten too influential. Legal positivism says “a law is a law”, which led people to blindly follow laws. Evil could be hidden by a “cloak of legality.”
He pointed to Nasty Germany as proof that morality cannot be forgotten when discussing law. He had what was called the Radbruch Formula which determined the validity of laws based on two standards:
- First, the intolerability formula:
Positive law ceases to be valid if its departure from justice reaches an intolerable level. So if something is just at a tolerable level, it’s still legally legitimate. But if something is an extreme violation of justice like mass genocide, then it loses its legal character
- Two, the disavowal formula:
A law is no longer a law if there is “not even an attempt to achieve justice.” If equality, which Radbruch saw at the core of justice, is deliberately thrown out, like these people ain’t even trying, then the law is invalid.
Now, based on all the reading I’ve done, I’m going to have to disagree with Radbruch on how legal positivism is what influenced Nasty Germany. It seems to me that Nasty law was in fact heavily reliant on natural law, not legal positivism. They believed law had a moral purpose of protecting their Aryan community, which was extremely racist, but that was Nasty morality.
They even let German citizens decide if a person should be guilty or not based on their innate racial sense of justice. They could literally override written law if they felt it was the moral thing to do.
In the face of all this, Kelsen continued to be a hardcore legal positivist. Despite having to flee his country because of Nastys, he maintained that Hitler’s laws were valid. He wanted this “pure theory of law”. He treated law like an objective science that was purely factual, and he saw morality as the opposite, something completely relative.
Thus, as a human creation, the legitimacy of a law was completely based on the basic norm of a particular system. If your basic norm is “cause as much pain as possible”, then only painful laws would be legally valid And in the case of Nasty law, their basic norm was the principle of absolute leadership under Hitler, thus making everything Hitler enacted legally valid in Kelsen’s opinion. Funny enough though, in the Nuremberg Trials where Nastys were being tried, Kelsen ended up making strong moral arguments for why the Nastys should be convicted even though they were acting legally under the Nasty regime. Seems like when push comes to shove, even committed positivists want evil but legal acts to be punished. But punishing people retroactively is a tricky choice. How are we to justify punishing them when they were following the law at the time?
Here we arrive at the central Hart-Fuller debate.
In the Grudge Informer case, Hart & Fuller both agree that the final decision to punish the Nasty woman was right. But they both disagree with the court’s reasoning, and then they both disagree with each other on that.
Philosophy is just people who love to argue. Okay, so let’s start with Hart’s argument who is representing the legal positivist side. He says that because morality is not essential for the law to have legitimate legal character, the immoral nature of the Nasty law does not detract from the legal validity it had. When the court invalidated Nasty law because it was “too evil”, Hart says it encourages an unrealistic optimism that we can maintain all of our moral ideals without making any sacrifices or compromises.
In reality, complicated legal cases are not that simple. Oftentimes, what we’re faced with is a moral dilemma, choice “between two evils” , there is no good choice.
In the Grudge Informer case, the two evils are to either let the immoral Nasty woman go unpunished because her actions were legal when she performed them, or the court must overturn legitimate law by introducing a retroactive statute, and potentially set a bad precedent for the future where it becomes easier to punish people in the past.
In Hart’s eyes, legal positivism is the only legal theory that doesn’t try to hide this moral dilemma. It acknowledges the true nature of the unfortunate situation by saying, “The law is still a valid law, but it’s too evil to be obeyed.” He also thinks that believing evil laws retain legal authority but are too evil to obey is much more intuitive than believing evil laws have zero legal authority.
In Fuller’s response, as a natural law theorist, he asks a good question: Why are we always talking about individual laws? What about the legal process? The legal system?
He posits that a genuine legal system must have internal morality, that is, the morality of the law’s procedural structure, and this genuineness consists of eight necessary factors
- Generality:
Laws should apply to all situations that fit its description. For example, if the law is “whenever you eat broccoli, your mom goes to a Yung Gravy concert” then every time you eat broccoli, your mom should be getting hit on.
2. Publicity:
The law must be generally available and publicly published so that people know how to follow the law, and criticize it if they need to
3. Non-retroactivity:
Most laws must be prospective, not retroactive (omitting special circumstances, like the Grudge Informer Case).
4. Clarity:
Laws must be easily understandable so people know what they mean. This is why laws are not written in wingdings, as fun as that would be.
5. Non-contradiction:
Laws cannot contradict each other.
6. Possibility of compliance:
Laws can only require behaviour that is actually possible.
7. Constancy through time:
Laws should not change abruptly or frequently.
8. Congruence:
What officials actually do should match what the law says.
It was very clear to Fuller, and many other legal scholars, that the Nasty legal system lacked internal morality. For instance, since verbal orders from Hitler could override or distort the interpretation of any formally published law, the meaning of all laws were “secret” in some sense. This demonstrates the law’s lack of publicity, consistency, and congruence. The Nastys also enshrined the “sound perception of the people” into their law. This basically let the people aka pureblood Germans to criminalize actions that weren’t even illegal in the written law. If they felt that an action was unjust or that it endangered the national community, it was considered legitimate justification for sentencing someone to jail or even death, regardless of what was written in statues.
The Nastys thought the German race had a natural understanding of justice that other races just didn’t have. As Nasty jurist Heinz Hildebrandt so wonderfully put it:
“The initial point of National Socialism is neither the individual nor humanity, but the entire German people; its aim is the securing and promotion of the German blood-community .The outcome of this are certain principles of law Recht. Firstly, the unconditional alignment of the correctness of law with the general good and the future of the German blood-community; secondly, the constant evaluative primacy of
the correctness of law over legal security; and thirdly: the increased acceptance of legal flexibility over legal constancy!”
Because the Nasty legal system failed so hard at meeting Fuller’s eight factors, then he says it’s okay to retroactively punish
the woman in the Grudge Informer Case. The laws she followed were illegitimate as a result of the procedures that created them.
Fuller thinks it’s quite contradictory of Hart to recognize the moral urgency of the case and hence agree to punish the woman’s actions yet simultaneously refuse to call Nasty law invalid. The positivist motto that “This is legitimate law but it is so evil we will refuse to apply it’” is weird to Fuller, because why are you refusing to apply a law you deem is valid?
If you’re going to punish people retroactively, then those past laws that have now become punishable must necessarily become regarded as void of legitimacy and authority.
A retroactive statute represents a clean separation between past law and current law. Only then can we isolate the old immoral regime, and allow people to build respect again for the current “normal” judicial process again.
I generally side more with Fuller because his procedural approach to law distinguishes him from other natural law theorists like Radbruch. Trying to have principles or a formula to determine the morality of individual laws is a very tricky thing because every individual scenario differs so much. I think having a criteria that focuses on the actual procedures and structures that bring laws into place allows for a holistic way of looking at things systemically.
But I do have some questions for him. Fuller states that the genuineness of a legal system is a measure of degree but he is unclear about how to precisely measure that degree. Is a system that excels in seven out of eight factors of internal morality, more or less genuine than a system possessing all eight factors, but at a mediocre level? It remains especially unclear as to what the ‘genuineness’ threshold should be for controversial laws like retroactive laws to be enacted.
I think this paper I read by Carolyn Benson & Julian Fink also points out this problem. They ask what I thought was an interesting question: if a type of legislation caused, contributed to, or implied an immoral characteristic of some legal system, can we conclude that an ideal legal system would not include this type of legislation? Is causation, contribution or implication enough proof to say yeah, let’s never do that again?
For example, the Nasty’s letting the “sound perception of the people” decide the criminality of an act seems pretty messed up. It made Nasty law unpredictable and unclear because you could do something that was totally legal according to what was written, but still get sentenced to prison by racist eugenicists. Clearly, this type of legislation made the Nasty legal system worse. But can Fuller definitively say that this type of legislation brings internal morality down a notch? Benson & Fink say no. Seeing a law make a particular legal system worse does not create a strong enough logical jump to legal systems generally.
What if there was a society where everyone had a publicly shared conception of the fundamental ideas of their laws, shared the same understanding of what “sound perception of the people” meant, and had equal rational ability to apply those concepts? Then there would no problem with having the public make decisions on a whim. Now, argument like these may not interest some people, or even annoy people who only care about practical philosophy. Who cares about nitpicking logic, a society like the one we just described will never actually exist, so it’s okay to make some assumptions. While I definitely understand this feeling and agree that obsessing over perfect logic is unnecessary, I still think very it’s important to carefully analyze the intuitive leaps we make.
If a law contributed to Nasty Germany, we intuitively want to say no good system could ever have that law. But then why do some questionable laws today receive relatively little scrutiny? Who benefits from seeing certain laws crumble? After World War II and the Nuremberg Trials, there was this distinction made between Nasty law and post-war law. Nasty law was barbaric and evil; post-war law was justice-serving. We were severely punishing Nasty leaders, we were creating the freaking UN and working towards world peace. We love getting out of our problematic phase and into our just era. However, several contemporary legal philosophers have begun to ask: has the post-war world really established better laws? Were the Nuremberg Trials, led by America, even moral in their origin and motivations?
In paper written by David Fraser ( Evil Law, Evil Lawyers? From the Justice Case to the Torture Memo.), he looks at legal concepts as subject to political interpretation and so it’s important to understand the political context of laws.
Fraser argues, experience and conceptualize the authority and legitimacy of law relative to the political ends and power of the prevailing political system. In fact, lawyers’ use (and abuse) of ‘good’ or ‘just’ law, and of ‘humanity’ and ‘civilization’, are in fact nothing but institutionalized expressions of political supremacy.
E.g., “civilization” was used to justify putting Indigenous children into residential schools or some justified the Rwandan genocide as “justice” for Hutu people.
Countries wanted to separate the concept of good legitimate law from Nasty law as much as possible. Thus, the goal was to make Nasty law not law. Part of this — not all — but part of this was because countries like America wanted to absolve themselves of liability and guilt.
They had ignored the Nasty situation for a long time, and didn’t help people until much later on, but if they can pin all the blame on Germany, if they can frame everything in the Nasty legal system as barbaric and evil, then they don’t have to treat anyone or anything in that system as legitimate.
We still hear today, from the UN and other nation leaders that good law is done in the name of civilization, universal humanity, and justice. As an American prosecutor at the Nuremberg Trials declared, “We try them in an international court for crimes under international law which finds its authority not in power or force, but in the universal moral judgment of mankind.”
But Fraser says there are several problems here. First of all, the court’s method of legitimizing itself was quite contradictory. When the Allied Powers defeated Germany and occupied the country, they initially had trouble establishing courts that could delegitimatize Nasty law. Under a series of international treaties called the Hague Convention, military occupation grants the authority to make or change laws “only in order to preserve peace and good order.”
What the Allied Powers wanted to do — namely, put thousands of people on trial, and then sentence them to prison or death would be considered further violence and aggression. So they weren’t allowed to replace Germany’s laws with their desired set of laws.
Hence, they had to argue that their military occupation of Germany did not fall under the Hague Convention. They said that the Nasty state was entirely destroyed and so there was literally no other government
existing to claim jurisdiction to that area. As the only possible legal authority left, the Allied powers took over. Thus, the Nuremberg Tribunal justified its own judicial power from its forceful military occupation. “The Court’s original jurisdiction did not in fact, or in law, derive from any principles of an international order.
In fact, the Tribunal’s very existence, its jurisdiction and its authority were grounded in raw military might and power which served as the legitimating source of the ‘moral imperatives of mankind’. This really is an ironic situation. A Tribunal that prides itself on preserving universal moral judgements but it originated from and justifies itself through its brute force and military occupation.
Despite that though, Fraser makes it clear that even though it’s ironic, it can still be an acceptable way of setting up a Tribunal in special circumstances like a world war. But what it does show is that the constitution of these “moral-serving” courts originated from violence and force. It was through violence and conquest that the Allied powers established themselves
as the legitimate power in Germany and then proceeded to strip German law of any legal status.
Making Nasty law illegitimate was not a result of its immoral content but because of the country’s inferior relationship to the Allied Powers. Fraser says that creating this hierarchy of inferior to superior law is a legal positivist move because they’re only relying on the factual information: Germany got defeated; Allied Powers are the only ones left, so following legal procedure, we take over. It was only after the courts were set up that these Americans started to say everything was about morals. We see this legal positivism clash with natural law in another way.
While the American prosecutors made claims to universal values like civilization and universal justice, the defense exclusively argued that the laws were permissible under German law. They didn’t say anything about how their laws stood within the global community, they were just focused on arguing that their laws were valid domestically.
Interestingly, the Tribunal acknowledged that Nasty legal norms were legal under German law, but they said that domestic law was superseded by international legal norms. Again, it wasn’t about whether the morality of the German law, but it was about the positivist principle of hierarchy. Maybe you’re like, I don’t really care how they prosecuted the Nastys. I don’t care if the Nuremberg Trials had contradictory reasoning or that the Tribunals originated from violence, or even that America just wanted to escape the blame. Any method that gets rid of something as horrible as Nasty law is acceptable. But Fraser cautions against thinking like this. One worry many legal positivists have is that if morality is seen as necessarily connected to law, then laws would never be criticized.
If what is moral is just what is legal then I don’t need to critically evaluate what is moral. I’ll just follow the law. Perhaps this is the sentiment that was carried in the post-war, post-Nuremberg period. Now that we’ve gotten rid of Nasty law, people automatically believed we had a much more just world. It led us to overlook things like America’s torture memos which legalized methods of subjecting people to cruel means pain and violence — sorry, “advanced interrogation methods” in the name of justice.
The targeted killings carried out during the War on Terror, or the countless atrocities the United Nations has failed to act on and also contribute to. These instances all probably violate international criminal law, but these people rarely, if ever, get charged, because they appeal to the dominant rhetoric of good law: they say they’re doing it for civilization, humanity, universal justice.
For instance, after the targeted killing of Osama Bin Laden, Obama gave a celebratory speech: “We will be true to the values that make us who we are. And on nights like this one, we can say to those families who have lost loved ones to Al Qaeda’s terror: Justice has been done.”
In his speech, it seems as though the law is placed in an inferior, or even absent position in relation to the values of American truth and justice. “The President speaks of the values essential to American identity. He asserts that the death of his political enemy serves as the actualisation of ‘justice’.
The connection of the two is clear but the law is specifically (and intentionally?) absent from this signifying chain. Indeed, what is most obviously missing from this ‘justice’ scenario is any mention or notion of traditional liberal legal process. Bin Laden was not captured and put on trial. He was not even sent to Guantanamo or a black site to be tortured. He was simply killed. His body, like that of Adolf Eichmann 50 years ago, was buried at sea.” Obama’s rhetoric indicates that the legitimacy and authority of killing Bin Laden are positively related to the result. It’s not about whether the legal procedure was fair or legitimate, but whether American “justice” was in fact served. The ends are supposed to justify the means.
But I don’t like this focus on achieving “justice”, whatever that means to neoliberal politicians, with a disregard for how that justice is achieved. Do I really want top secret information from the CIA if they got it by waterboarding someone? Look, I like the sound of human rights and protecting civilization and having universal justice as much as anyone, but these ideals are often weaponiszed as rhetoric to protect powerful people from scrutiny.
I think there should be morality in law, but the importance is in the legal procedures as Fuller laid out. To criticize laws with vague principles like “civilization” and “universal morals” is “merely one of several competing versions of ‘law’ which struggle politically for semiotic supremacy and legitimacy under the guise of legal theory.
In practice, we are still all ‘evil’ lawyers, because we continue to exist in this collective state of legal amnesia and as beneficiaries of law’s consequent self-amnesty and self-denial.”
I am not confident on where I stand in this natural law vs legal positivism debate but maybe your comments will help me out.
Bye!
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