June 11, 2012                               Brian Lewis, Ballarat, Australia      
                      
                                    MORALITY AND LAW 

The once quite common mentality equating moral goodness with keeping the law still seems to persist among some today. It is the idea that all we have to do to be moral people is to obey the letter of the law and that if some behaviour is not against the law it is morally acceptable. So the conclusion is made that whatever is good should be enforced by law and whatever is bad should be prohibited by law. To identify morality and law in this way is legalism. A legalistic mentality crushes any creativity in our moral life, encourages us to be spiritually lazy and leads to the minimalist attitude that always says, 'How far can I go?'  

Thankfully, this stultifying attitude is these days on the wane. However, whether or not we are aware of them, the moral code to which we subscribe and the civil law that obtains in our society have a major impact upon our lives. For the most part we respect other people and their property, we think that sticking to the truth is important, we pay our lawful debts, we give a good day's work for a fair wage, we care for our family and so forth. We believe that all this is the right thing for us to do in order to be good people and upright citizens. So in the main we abide by the moral law and keep the laws laid down by the government. We do so without bothering too much whether the rules we adhere to are moral or legal. Nor, generally speaking, do we have to.  

Often in fact the rules that guide us are at the same time both moral and legal. Inflicting grievous bodily harm on another is both against the moral law and also the law of the land. The same goes for murder, perjury and dealing illegal drugs. Racial vilification, false advertising and driving in a dangerous manner are offences against morality as well as against the civil law. So often enough the moral law and man-made law overlap.  

However, sometimes, if we give the matter some reflection, we realise that man-made law is not coextensive with the moral law. As St. Thomas Aquinas argued, human laws do not aim to prohibit all immoral actions, but only those like theft and homicide that hurt one's neighbour and so make human society impossible. Nor do human laws prescribe all possible good actions, but only those that are directed towards public order, so that people will be informed about how to achieve the public good of justice and peace. There is no law telling us that we must have a kind word for someone who is suffering, that we must show compassion for the derelict and homeless or that adultery or fornication or homosexual activity is forbidden. One of the principal architects of Vatican II's 1965 Declaration on Religious Liberty, Jesuit John Courtney Murray, summed up the distinction between moral law and the legal order as follows:  

           The moral law governs the entire order of human conduct, personal and social; it extends  even to motivations and interior acts.
Law, on the other hand, looks only to the public order of human society; it touches only external acts, and regards only values that are formally social.

 The first important difference between morality and law is that laws of the state come from outside us, from the legislature, so that the source of law is external to those upon whom it is imposed and carries sanction for non-observance. Morality, however, though it may seem to us to have been handed down by God in the commandments, is in reality ultimately our own choice. It must come from within us, from our reason and will endorsing our own moral principles in accord with our human dignity and choosing from our own conscience to act on them.  

As earlier pointed out, the justification for coercive laws in a democratic state like Australia is the upholding of public order. Public order, with its three requirements of justice, peace and public morality, justifies the limitation of individual freedom which coercive law entails. Public order requires the guardianship of acceptable standards of public morality. Public morality is distinct from 'private' morality, which is concerned with values associated with personal growth. Obviously, private morality does not refer to the goodness/badness of acts done in private, like murders or thefts, which the perpetrators would normally want to keep quiet. Public morality is about what affects society as a whole. Murder, rape, child abuse, stealing are violations of moral standards that affect the whole of society, whereas afflicting bodily harm on oneself or not giving alms to a beggar are not against the law. The difference is that the former actions harm public order, while the latter do not.  

So there is a realm of private morality that is not the business of the law. Behaviour that does not involve an identifiable public injury ought not be matter for legislation. Only when acts inflict harm upon others in their person or their property, or exploit or corrupt or violate the rights of others, particularly the young and weak, should the law intervene to interdict such conduct. Such actions conflict with moral standards necessary for the smooth functioning of society and render living together in community difficult if not impossible. For this reason they undermine public order and the law is justified in intervening. Jesuit priest and Professor of Law, Frank Brennan, defends his argument for legislation by the Federal government to recognise civil unions of same-sex couples who are committed to each other in supportive, long term and exclusive relationships. He says:  

            The state has an interest in seeing such relationships supported even though some citizens for religious or other reasons may have reservations or objections about the sexual relations and sexual acts which might be entailed in such relationships. Basically that's none of the state's business, nor is it the business of religious  persons whose views about the good life are not being sought by people living in such relationships.

A final question. What is to be said of laws that enforce conduct that is against the moral order? For example, at the Nuremberg trials following World War II it was argued that Nazi SS and those who carried out the Holocaust in the death camps could not be convicted of any crime, because they were simply obeying orders and acting in accordance with the law.  The counter argument was that there was no rational basis for such a claim. In reality the law in this case was in conflict with the order of justice and so was no law.  

This has been the traditional answer of Christian theologians.
St. Augustine considered that an unjust law ceases to be law at all and carries no obligation in conscience. For St. Thomas Aquinas an unjust law was a corruption of law, a spoilt law or an outrage rather than a law. The Catholic position is that man-made legislation cannot impose something that is contrary to the moral order, that is, the body of conclusions about behaviour that through experience human reason has worked out should be observed if we are to live as befits human persons. The state has no mandate to pass laws that attempt to coerce citizens to do what is contrary to reason and so immoral. All human law and politics must respect the natural order. This raises the further question of the moral responsibility of politicians in regard to legislation permitting actions that Catholics judge to be against the moral order.