Law and the Legislation of Morality

Abstract

There is an old saying that subjecting us to law cannot make us good, but can prevent us from behaving badly. Like many epigrams, that one is too clever by half—indeed, I think, by each half; for each of the two assertions that it makes is, I suspect, false. It assumes a ready distinction between what we are and what we do, and it implies that it cannot be among the tasks of the law to make us morally better people, because it cannot make us morally better; all it can do by its requirements, prescribing some conduct and prohibiting others, is to make our actions conform to its rules. And this assumption leads naturally to the view that it is the function of our law, as enforced and applied by police and courts, to criticize and chastise us, not for our moral failings, but for our conduct which is, or risks being, in one way or another a danger to society. This view forms one of the themes of a recent book, in which the author argues that crimes are not punished as moral wrongs, for (as an example) burglary is rightly punished as a serious crime, although it is only a minor moral wrong, and “mere moral wrongs are regarded by the criminal law as none of its business.”¹ It is a view that may seem naturally to go along with legal positivism, the theory that laws are valid if and only if they have been made by whatever is the correct procedure, legislative and/or judicial, for the society whose laws they are; and it seems to be correspondingly opposed to the theory of natural law, according to which the validity of law is extralegal, deriving its authority from God or from the dictates of reason or from the nature of man.