The Issue Of Law And Morality Essay
This paper is intended to consider on the question of morality and law – whether these two notions are interdependent or have to be separated from each other. It defines both of these notions and considers the situations when law depends on morality and cannot be separated from it. Also, the instance is going to be cited of situations where law does not regulate the relations between people but morality does.
The issue of law and morality, their interdependence and, at the same time, the necessity to separate them from each other – all these questions accrue from different points of view onto moral and legal regulations – there exist positivists (who believe that law and morality cannot be dependent on each other) and non-positivists (who believe the contrary). It seems to be a lifelong issue of discussion and is often called “an-egg-or-chicken-question”. And this very issue is going to be contemplated in this work.
To begin with, it is first of all important to define law and morality themselves. Abhishek Raj gives definition to these two notions as follows. Law is believed to be a collection of legal rules meant for determine people’s behavior (and they in their turn are estimated by the state). Beside that, the state carries them into effect when someone infringes these rules. Morality on the other hand implies rules of conduct connected with some kind of social and psychological qualities. Observation of these norms will make one feel moral (or virtuous), while their breach will implicate feeling of guilt. Morality and law have different origins: morality is taught and is supposed to be engrained from the very childhood to every person; and law is usually created and enforced. Thus, it is understandable that morality comes from within the human personality, and law comes from the outside to regulate people’s behaviors.
At all accounts law has to be based on the principles of morality. The example is Christian Ten Commandments which are basic to common law as well as to criminal law. The court makes decisions on different cases relying on laws which regulate what can be done and what cannot be committed by the individuals in our society. On the other hand, there also exist such situations when there is no certain legislation to be applied. (The precedent has occurred but there is no law developed for it.) In such situations the court is to rely upon morality. Also, “morality is brought in when judges face the dilemma of deciding a case wherein more than one but contradicting legal remedy is applicable but there is no clarity with regard to their priority”. Moreover, there can be certain regulation available, but if applied this will result in injustice – in this case morality is also deferred to.
It is also significant to specify that morality and law are by no means the same or equal. What is moral can be illegal (for example, cheating on a tax return in order to save money for supporting old parents and one’s own family – it is certainly illegal, but for some it is moral). On the other hand, which is immoral is sometimes legal (like cheating on one’s spouse – no one can be legally punished for that as there is no legislation prohibiting it). If some people believe something is not moral and has to be made illegal they need to find enough supporters to make such law valid. And vice versa, if enough people argue something to be legalized they can in the same way gather and court it…
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It is obvious that law and morality both seek our piece of mind and justice. As a description in Oxford Dictionary law is the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. ("Law”, Oxford Dictionary, 2016) Law succeeds this with the enforcements and punishments if you step over the lines shaped by laws. Morality which is described in Oxford Dictionary as morality is the differentiation of intentions, decisions, and actions between those that are distinguished as proper and those that are improper ("Morality” Oxford Dictionary, 2016) also has punishments for bad acts and rewards for good acts like guilt and denouncement for crimes and praise. (Ergin, 2012) These two phenomenons might seem very diverse but they have one obvious thing in common: they affect the way we live. The problem is that it is inevitable to say that there is a huge conflict between law and morality and this conflict shows itself on some specific examples. In today’s world some of the law experts may claim that law is absolute. Its importance is over than all other regulators like morality. However the conflict between them proves that moral principles are still stronger than legal principles for some cases. Although today one can argue that as long as law permits certain social practices such as same-sex marriage, abortion and legislation of prostitution should not be considered as legally wrong, they are moral problems of modern world, which proves that moral principles are still stronger than legal principles.
The aim of law is that people should be governed by accepted rules which are general and abstract known and certain and applied equally to all individuals. It is obvious that there is a close relation between law and morality because they both seek our piece of mind and justice to achieve the aim of regulation of human life. (Raz, 2009) Since the beginning of civilization, human communities have the sense of morality in every single century. On the other hand the idea of government and law came to light more lately than morality. There have been people lawless or without governments but there is no community which have not met with morality. (Hart, 1963) In today’s world one can argue that law is absolute. We are able to say that its importance is the most while regulating human’s life. However in one way we can think about that law is invented to develop moral rules. (Ergin, 2012) To materialize the relationship between law and morality, i would like to give an example. To keep your own promise is a rule of morality but also it is essential principle of international law, code of obligations and more. All these topics are like buildings which constructed by moral rules. (Ergin, 2012) These 2 main topics, law and morality, are in a close relationship. However at the same time they are in a conflict. In decent years there are some examples to show the conflict and to understand that moral principles are still stronger than legal principles such as same-sex marriages, abortion and legislation of prostitution. I will examine these 3 topics in the following paragraphs.
The first issue we are handling is abortion. Abortion is accepted as one of the most debatable issue in bioethics. It is true to say that the reason of this debate is that it is not only involving doctors or scientists but also it is involving other communities or organizations like religious groups or jurisdical people. In addition to this, it also concerns people because the issue is not just a legal issue; it is also a moral issue. Abortion refers to intentional premature termination of pregnancy which destroys an embryo or a foetus before it is capable of living outside the women’s body (Ruhela & Banerjee, 2016). The subject of abortion whether it is a persona or not has been a very debatable issue. The abortion debate begins with the moral and legal status of the fetus. If the fetus has no rights, then abortion is not an issue. It is as easy to justify as any kind of surgery. But, if the fetus has rights, then abortion doesn't only concern the freedom of women, since personal freedom is limited by the rights of others. In the United States abortion is legal. There is no restriction as to reason. The Supreme Court's decision in the 1972 case of Roe v. Wade was, and is still, the most important decision affecting abortion in the United States. Roe made it possible for women to terminate their pregnancies for virtually any reason within certain gestational time limits. In a synoptic way we are able to say that women have rights on their body to feticide even it is a murder. On the other hand the most prevalent argument to compose the argument is that the fetus has a moral status disallowing abortion is that firstly a foetus is a member of the biological species human beings. Secondly to destroy a human being is immoral. Therefore, abortion is immoral, since it develops the deliberate destruction of a human being. As I stated before, it has seemed immoral in the recent history and it has become a debatable issue. The key questions central to this debate are “When does life begin?”, “When does foetus become a person”, “Is abortion murder?” There is no certain answer to these questions. However, regardless of rape it seems that the abortion should be handled as murdering a person morally. If you consider on it, you are responsible for your actions and it's not the child's fault because you decided to do what you did. You have to take the responsibility of the consequences about your actions. Still a lot of people are saying that it is not a child he is a foetus. To assume that it he is a foetus not a child if we think about it we are interrupting the creation of child. As soon as the baby is beginning to form in the fetus, it should be considered as alive. Saying that a mother should be allowed to choose whether she wants an abortion or not is saying that it is her choice whether she wants to murder her baby or not. Not only is abortion immoral, it is also murder. Whether the foetus is a person or not it’s accurate to say that a woman has some sort of moral obligation to the foetus. Perhaps this obligation is not strong enough to eliminate abortion as an option, but it may be enough to limit when abortion is an option. As we can see that the conflict between law and morality aggravate the issue. We may say that law is absolute. There is nothing stronger than law to govern people if we do not consider of moral values.
The second issue which we are able to see the conflict between laws and morality is legislation of prostitution.