The Amoral Law

Illustration by Wesley Ryan Clapp

Since the rise of legal positivism, American law has been a system divorced from morality. According to the doctrine of legal positivism, whether or not a law is valid has nothing to do with whether or not it is moral. While moral and legal codes often overlap, this is more of a coincidental relationship than a causal one: many things that are morally wrong are also detrimental to smooth social functioning, and, as such, outlawed by the governing authority. On the other hand, many things that are wrong are well outside the legal purview, like being rude to a stranger, while many things that are morally neutral are illegal, like a twenty-year-old drinking a glass of wine at dinner with their parents. These are not examples of flaws in the legal system, at least not to one who accepts legal positivism: they are merely demonstrations of the fact that morality and legality are different.

Legal positivism was a great rupture in legal theory: centuries had been spent trying to make the law of man conform with a heavenly, divine, or perfect (and moral) law, and this pursuit was now abandoned in favor of a more “practical” approach. However, this great rupture in legal theory affected people’s relationships with the law less than one might suppose, and although modern legal systems are not intended to approximate a moral code, people often relate to them as if they do. At the same time, however, Americans are quick to laud and embrace our many constitutionally protected freedoms, most of which are made possible by this very separation; freedom of speech and property rights are both things that could be impeded more easily by a moral law. (People reserve the right to do many things on private property that are morally questionable, and the right to tell lies when they are not in court.) So while happy with the results of legal positivism, people are nonetheless outraged by legislation on morally neutral (as opposed to immoral) acts, and often wish to see their moral codes enforced as law. This shapes their attitudes to breaking the law, what laws should be broken and when, and what acts should constitute breaking the law.

People break the law for many reasons: ignorance, malice, laziness, convenience, to name a few. However, people also sometimes break the law with a sense of moral self-righteousness, as an act, however trivial, of standing up against “the man.” While this moral stance is generally a justification of and not the impetus for the illegal act (unlike, say, an illegal violent protest specifically targeted at a law), it is nonetheless an example of the way in which people cast their relationship to the law in ethical light. People in these circumstances break laws as a way of acting out against what they see as governmental morality, and to make a statement of what they think is right.

For example, when hardcore natural food enthusiasts attend clandestine raw milk bartering sessions, they do so without a sense of moral guilt (and rightly so!): there is nothing wrong, morally speaking, with unpasteurized milk products, and there is usually nothing wrong with them in terms of health. Many people involved with raw milk feel that this absence of moral wrongness—combined with the fact that raw milk is better for the environment and, according to some, for your health—justifies their illegal act, and they feel extremely indignant when the FBI shows up to shut them down. While this does seem extravagant on the part of the FBI, knowing that your actions are not wrong does not mean your acts are not legitimately illegal. The law that forbids raw milk in New York state might well be totally silly, but that does not make it an immoral law, and, however natural it is to feel morally outraged when your local illegal raw milk coop gets shut down (‘we were doing nothing wrong!’), this outrage is not strictly reasonable. The counterintuitive fact of the matter is that something can easily be illegal without being wrong, as laws no longer derive their legitimacy from morality. While the legislature can be mistaken as to expediency and good sense, the laws it makes are not usually moral judgments and cannot be disagreed with as if they were.

It is important to note here that laws, though they are not moral by nature, can still be morally wrong, and in these cases, resistance to them is an important and necessary step. When a law either outlaws a moral act or requires an immoral act, like returning someone who has escaped from slavery to their purported owner, it can be morally wrong. By and large, however, laws are not moral legislation, and the simple fact that a law forbids a morally neutral act does not make that law immoral. Laws against jaywalking or feeding pigeons, for example, are not morally wrong laws in the way that Jim Crow laws were wrong; rather, they are laws of exclusively practical, and not moral, content.

Nonetheless, laws are understood (or rather misunderstood) in moral terms throughout society. I have already discussed how people justify their illegal acts by explaining that their actions were not morally wrong, and thus somehow less forbidden, or at least less justifiably forbidden. In fact, amorality (or lack of moral content, as in, the ‘legal’ option is not superior morally to the ‘illegal’ option) in law is the norm, and chaos would ensue if people felt free to break any law that didn’t match up with their moral code (think of obeying traffic laws). We also see the opposite effect: just as people object to the outlawing of acts with no immoral content (like the purchase and consumption of raw milk), they also object to the legality of acts that are morally wrong (like lying to a friend) but not against the law. This is another symptom of the tendency to see laws and morality as identical, if debatable and negotiable, codes.

This, dare I say, universal desire to outlaw that which is wrong (a desire suppressed by legal positivists, but not suppressed by all) has resulted in vice laws, legislation banning sex acts, and other attempts to render one group or another’s moral code into law. It is all too easy to assume this desire is the preserve of the religious right and the ‘values voters’; I argue that it is an inclination we all share, however our values may differ.

Take the recent case of the Westboro Baptist Church, the Kansas fundamentalist hate group known for protesting at soldiers’ funerals. It is difficult not to want their acts of extreme emotional cruelty to recently bereaved people to be illegal, even if one understands why they are not or cannot be under our legal system. It is easy to sympathize with the pain and suffering of the deceased’s father: most of us would be sickened by having a loved one’s funeral overshadowed by inflammatory anti-gay anti-Catholic anti-America propaganda, and many of us were angry just hearing about it. Nonetheless, the opinion of the Fourth Circuit Court, upheld by the Supreme Court, was that their protest, though morally wrong, was legal and protected under the First Amendment. Justice Alito, dissenting from the opinion of the court, referred to Mr. Snyder (the plaintiff, and father of the dead soldier) as having “the right of any parent who experiences such an incalculable loss: to bury his son in peace.” However, this is really more of a moral right than a legal right. Alito goes on to specify that it is an “elementary right,” presumably to defend himself from the criticism that nowhere in the Bill of Rights, for example, can the right to bury offspring in peace be found. His phrasing also serves to remind (most of) us that we do believe it’s wrong to bother or torment someone in such a circumstance. The rest of Alito’s colleagues, while acknowledging the enraging and immoral nature of the protest, still upheld it as legal.

So it seems that the law exists in some sort of morality limbo. Many people, including some judges and legislators, interact with it as with a moral law, or attempt to legislate morality. However, their interpretation of law as a vehicle of morality is problematic, given both the stated separation between law and morality assumed by our entire system of law since the rise of legal positivism, and the fact that most of our laws exist for practical reasons rather than moral ones. If we want our current legal system to legislate morality, we must first accept most of our current laws as moral; however, any system of ethics that held parking in a no parking zone by accident to be wrong would be extremely odd and deeply flawed. Already, people defend impolite or even immoral actions by saying “it’s a free country,” as though legality were a sufficient moral justification for an action. Our systemic confusion about the relationship between law and morality, in which we want the legality of an action to correspond to its morality, does not seem to negatively affect our morality but merely confounds our legal understanding. Defining the moral by the legal, however, would so dilute the concept of morality as to make it practically devoid of meaning.

Perhaps the moral fatigue of living in a pluralistic society, surrounded by many competing ethical systems, makes us long to turn to legislation as the master source of what is right and wrong. When we do this, consciously or unconsciously, we are inevitably disappointed in the law. A great many of these disappointments stem from the fact that we are looking for something that is not there: a coherent moral code. This disappointment is, in my opinion, to the greater good: as long as we are disappointed by law when we try to read it ethically, one hopes we will be less likely to mistake it for a moral code.

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