MAJOR ISSUE: RELATION OF LAW & MORALITY

Major Authorities:

Lon Fuller (Jurist)Oliver Wendell Holmes (Jurist)

Robert Cooley Angel (Sociologist)

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Q: WHAT IS LAW? … MORALITY?

• Morality: – Basic Beliefs of a Society Re Appropriate Behavior

• Law: – The “Official” Rules of Society Which Are Enforced

• How Do – Should – They Relate to Each Other?

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OLIVER WENDELL HOLMES

• 2 Approaches to Law/Morality Connection:• POSITIVISM– Law Is an Entity in Itself

• NATURAL LAW– Laws ARE – & SHOULD BE – Based on a PRE-

EXISTING Code of Morality

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NATURAL LAW

• Emphasizes Connection Between Law & Morality

• Based on Pre-Existing Code of Morals• EX: 10 Commandments … Koran … etc.

• Is This True? How? What Circumstances? • When Might It NOT Be True?

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POSITIVIST APPROACH TO LAW• Law Viewed as Entity in Itself – • Apart from Morality• Societies – esp. Modern Societies – Make

Laws• … To Ensure Smooth Interpersonal Relations …• Among Persons Who May Not Agree on the

Basic Moral Code • Is This True? When? What Kinds of Cases?– (Traffic Laws, Interstate Commerce, Sex, etc.)

• Max Weber’s View of Law in Modern Societies5

Q: WHAT CONSEQUENCES FLOW FROM THIS CONTROVERSY?

• Does It Matter Which Approach We Take?• What Happens If We Disagree Over the Basis?• What Different Kinds of Laws Would We Have?• EX: Sex … ? Drugs & Alcohol … ?• EX: Murder … ? Stealing … ?• EX: Suits Filed by ACLU, Amer. United for

Separation of Church & State Force Removal of Religious Symbols

• EX: Southern Poverty Law Center re Hate Crimes

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LON FULLER:EXPANDS LAW-MORALITY ISSUE

• Fuller: Former Harvard Law Professor• 2 Moralities on Which to Base Law:– “Natural Law”– Humanity’s “Basest Nature”

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FULLER: MORALITY OF DUTY• Law Based on "Humanity's Basest Nature" • Assumption: People Will Always Have Nasty Habits! • Law Can't (Shouldn’t) Do Much About That!• Contrast: Some Things People MUST Do (Or Avoid)• Many Issues: Individual Behavior Doesn't Matter for

Society• Law Should Only Force What’s Absolutely Necessary!• Law Should NOT Try To Force People To Be Good!• Fuller Terms "MORALITY OF DUTY” – Clearly Prefers!

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FULLER: MORALITY OF ASPIRATION

• Based Upon Assumption That "Nature's God" Has Set Immutable Foundations of Morality

• Law Should Be Based on This Foundation. • Tells Everyone What S/He Ought to Do …• Law Should Aim To Force Everyone to Do It! • Fuller Calls It "MORALITY OF ASPIRATION"

E.G., Law Should Encourage (Force?) People to Aspire to Be The Best They Can Be

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SUMMARY: Morality of Aspiration vs. Duty

• What Behaviors Would Be Banned Under Morality of Aspiration?

• … Under Morality of Duty?• Which Is Preferable?• Which Would Be More Enforceable?• Is Morality of Aspiration Possible In a Modern,

Complex, Multicultural Society?• Cf. Max Weber, Lon Fuller

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APPLYING THE MORALITY OF DUTY:

MORRIS & HAWKINS (c. 1970S)• The Honest Politician’s Guide to Crime Control• They Basically Accept Fuller’s Notion of

Morality of Duty (Though Do Not Quote Him)• … As the Basis for Law• Book Outlines How to Implement this Idea in

Modern U.S. Society

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MORRIS & HAWKINS (ctd)• “Every Man Has An Inalienable Right To Go To

Hell In His Own Fashion …” (p. 2)• Therefore: Remove Non-Essential Acts from

Criminal Law – All “Victimless” Crimes (7):– Drunkenness (NOT Drunk Driving)– Narcotics & Drug Abuse – Abortion – Gambling – Disorderly Conduct – Sex Offenses Between Consenting Adults – Juvenile Status Offenses

• Have a Standing “Law Revision Committee” – Periodic Corrections to Delete Non-Essential Items

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MORRIS & HAWKINS CONSEQUENCES

• Think About Consequences of Proposal• Would It Be Accepted? By Whom?• What Would People Disagree About?• Who Would be Likely to Disagree?

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. DISAGREEMENT IN PRINCIPLE WITH POSITIVIST BASIS

• Some People Likely to Disagree with the Positivist Principle

• Have a Preference for a Natural Law Approach• Particularly Among Religious Leaders• Also Among Very Religious People

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DISAGREEMENT WITH SPECIFIC ISSUES AS "VICTIMLESS"

• Even People Who Agree In Principle That the Criminal Law Should Not Include Private Behavior

• Might NOT Agree With One Item or Another • EX : Abortion Not Victimless (Baby as Victim)• Gambling And Drug Abuse Victimize Families• Considerable Disagreement Over Which Items

to Include in Law

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FEASIBILITY OF MORRIS & HAWKINS

• How Likely Is It That Such a Program Would Be Accepted?

• THEY Recognize It Has Little Chance (1970s!)• Politicians Could NOT Espouse It … Unpopular• Removal of Sanctions = Support for Behavior• Politicians LIKE the POWER Criminal Law Gives

Them! (cf. Marx, Quinney, Chambliss!)

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SUM: MORRIS & HAWKINS: 2 AREAS OF DISAGREEMENT

WITH THEIR VIEWS

• 1. DISAGREEMENT IN PRINCIPLE WITH POSITIVIST BASIS PREFERENCE FOR NATURAL LAW APPROACH

• 2. DISAGREEMENT WITH SPECIFIC ISSUES AS "VICTIMLESS"

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LON FULLER: HOW TO MAKE BAD LAW

• The Experience of “King Rex”• Tries to Make Good Law• 8 Successive Mistakes• Not Unlike Mistakes Made Today in U.S.!

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FULLER: BAD LAW (1,2)

• 1. AD HOC LAW - Law Based On Decisions: Day To Day, Case By Case. - No Guiding Principles On Which Law Is Based.

• 2. FAILURE TO PUBLICIZE - King Rex Then Established A Set Of Principles

- Didn't Tell Anybody What They Were. - How Can An Unknown Law Guide Behavior?

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FULLER: BAD LAW (3,4)

• 3. RETROACTIVITY - King Rex Getting Hang Of This …

- Tells People What Law Is … AFTER Deviance - Then Explains How They Broke The Law. • 4. NON-INTELLIGIBLE (OBSCURE)

- Finally Sets Up Code Of Laws … - And Publicizes It … - But Nobody Can Understand It!

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FULLER: BAD LAW (5,6)

• 5. CONTRADICTORY - People Finally Find Out What Law Means

• - Discover Many Rules Contradicted Each Other. • 6. IMPOSSIBLE TO FULFILL

- Sometimes Laws Were Impossible to Follow EX: 1 Mile Stretch of Highway, St. Louis County, MO

- Speed Limit Changed 5 Times – - From 25 To 40 To 30 To 65 – - No One Could Drive Without Breaking Law.

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FULLER: BAD LAW (7,8)• 7. EXTREMELY CHANGEABLE

- King Rex Changed Law a Lot - People Couldn't Keep Up With New Codes. • 8. INCONGRUITY OF LAW AND ADMINISTRATION

- Didn't Always Use His Laws On Regular Basis … - Sometimes He Enforced Them- Sometimes He Didn‘t …

EX: Irritating Problems in Many Communities:- Law Used When Police Want To Use It - Ignored When Not Useful - EX: Use of Anti-Sodomy Laws Only Against Gay Men

- Not Against Heterosexual Married Couples

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SUMMARY OF LON FULLER• Espouses “Morality of Duty” as Basis for Law • Disagrees with “Morality of Aspiration” • Believes States Should Make Law Which Is:– Based On Guiding Principles …– Will Publicized … Intelligible … – Well Publicized Prior To Enforcement …– Absent Of Contradictions …– Reasonable To Fulfill … Doesn’t Change Much … – Is Enforced On A Regular Basis

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ROBERT COOLEY ANGEL (c. 1940)ON SOCIOLOGY OF LAW

• Sees LAW as One of a Network of Interrelating Social Structures in a Society

• Sociology Can Contribute to Legal Education …• By Understanding Milieu in which Law Operates• Law & These Units Are Interdependent• There Are Other Means of Social Control

(School, Family, Religion, Community Opinion)• Lawyers, Police, Courts Should Recognize These– Q: Should Everything Be Enforced by Law? (Sex?)

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R.C. ANGELL (ctd)

• Socio- Legal Research is Useful – & Difficult• Rules Are Difficult to Define …• Courts Vary Much in Enforcement • Law & Administration Often Vary (cf. Fuller?)• Claims There is Little Variation in Acceptance

of Laws – Sociologist Can’t Study “Constants”• NOTE: Is This True? Or Did He Simply Miss

the Variation?

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RESEARCH IN SOCIOLOGY OF LAW (Angell)

• Social Causes of Legal Rules • Compare Law with Custom• Analyze Rules v. Administration• Social Effects of Legal Rules: – On the People – on the Administrators

• How Knowledge of Law Is Diffused• How Much People Know about Law• Where They Get Their Knowledge• Differential Use: Law v. Informal Social Control

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LAURA NADER (Anthopologist)• Law Belongs in a Social Context• Law Is Only One Social Control Mechanism• Law Does 2 Things:– Settles Disputes (Resolve Social Messes)– Maintains Order

• “Dispute Settlement” Easier Maintain Order• Laws & Courts Perform Many Other Functions– “Scare” Spouse; Embarrass; Increase City Treasury

• Important Parts of Anthro (Sociology) of Law• Her Research: Letters to Ralph Nader 27

CONCLUSION: WHAT SOCIOLOGY OF LAW DOES

• Analyzes Law & Legal System …• From Perspective of Society …• Sees Law As a Component of Society …• Which Performs Important Social Functions …• Is Established & Influenced by Founding Society• In Turn, Has a Great Impact on the Society• Can Have Unintended Impacts on Society• We Will Be Examining These Issues This Term

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