IV. Theories 2
IV. Theories 2
RELATION OF LAW & MORALITY
Lon Fuller (Jurist)
Oliver Wendell Holmes (Jurist)
Robert Cooley Angel (Sociologist)
Q: WHAT IS LAW? … MORALITY?
– Basic Beliefs of a Society Re Appropriate Behavior
– The “Official” Rules of Society Which Are Enforced
• How Do – Should – They Relate to Each Other?
OLIVER WENDELL HOLMES
• 2 Approaches to Law/Morality Connection:
– Law Is an Entity in Itself
• NATURAL LAW
– Laws ARE – & SHOULD BE – Based on a PREEXISTING Code of Morality
• Emphasizes Connection Between Law &
• Based on Pre-Existing Code of Morals
• EX: 10 Commandments … Koran … etc.
• Is This True? How? What Circumstances?
• When Might It NOT Be True?
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 Societies
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
• EX: Southern Poverty Law Center re Hate Crimes
EXPANDS LAW-MORALITY ISSUE
• Fuller: Former Harvard Law Professor
• 2 Moralities on Which to Base Law:
– “Natural Law”
– Humanity’s “Basest Nature”
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
• 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!
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
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
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
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
– Disorderly Conduct
Sex Offenses Between Consenting Adults
Juvenile Status Offenses
• Have a Standing “Law Revision Committee”
– Periodic Corrections to Delete Non-Essential Items
MORRIS & HAWKINS
Think About Consequences of Proposal
Would It Be Accepted? By Whom?
What Would People Disagree About?
Who Would be Likely to Disagree?
. DISAGREEMENT IN PRINCIPLE WITH
• Some People Likely to Disagree with the
• Have a Preference for a Natural Law Approach
• Particularly Among Religious Leaders
• Also Among Very Religious People
DISAGREEMENT WITH SPECIFIC ISSUES
• Even People Who Agree In Principle That the
Criminal Law Should Not Include Private
• 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
FEASIBILITY OF MORRIS & HAWKINS
• How Likely Is It That Such a Program Would Be
• 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!)
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
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.!
FULLER: BAD LAW (1,2)
• 1. AD HOC LAW
- Law Based On Decisions: Day To Day, Case By
- No Guiding Principles On Which Law Is
• 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?
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!
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.
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
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
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?)
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
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
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
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