Institutionalization of Moral Theory

Institutionalization of Moral Theory
A Conceptual Analysis of Law
by Diory Rabajante


Law has, undoubtedly, a significant role in the life of each person in the society. In its intention to preserve order, the society would have to create a system by which it would regulate the actions of its people. The creation of such regulation manifests a society's act of protecting the general welfare from possible harms that anyone might perform. This sort of regulation marks the existence of law in the society.[1]

The "law" that has been discussed in the previous paragraph, which is also the focus of this analysis, is taken in a broad sense and does not refer to specific laws or to mere statutes. The object of this conceptual analysis is to make an account of the law itself. We cannot, at this point, make an account of the very nature of law; but creation of such an account is the object of this analysis. Our aim is to penetrate the very essence of the law itself.

The account on the general nature of law that must be created should not be too limiting. It must not be confined to a specific system of law, e.g., criminal law, but must encompass all that are taken as systems of law. In such case, we have to look at and analyze law not from the point of view of a particular legal system. Because we cannot initially define law, the suggestion is that we find the essence of the law through an analysis and an understanding of how the law came to be.

It would be useful for us to consider the two features of law, which, though vague, would provide some help. As noted earlier, law is marked by the presence of society's regulation of its people's actions. This shows the first feature of law as a system of social control. It assigns one an obligation to do things that he would otherwise not do, or an obligation to not do things that he would otherwise do.[2] To define law as simply a system of social control, however, is problematic. There are also other systems that could serve as social control. Hence, we have to make an account of what sort of social control the law is, and we could do such if we could account for the essential aspect of law.

The second feature of law is its prescriptive or normative character. It orders one to act in a particular manner and not simply describe how things are. This is what makes the sort of law, which is the object of this analysis, different from the sort of laws discussed in sciences. Laws that are discussed in science, e.g., laws of motion, are descriptive. The law that we are discussing here has a normative character. However, there are also other systems that could be considered as normative. In such case, our account of law must explain how it gains its normative character and what sort of actions it prescribes or proscribes.

The thesis that will be defended is that the law is an institutionalized moral theory. This proposition could make an account on how the law came to be, whose analysis could provide us with a proper account on the nature of law. This proposition explains that the law exists when a moral theory has reached acceptance and institutionalization. Likewise, this proposition could definitely make an account of the two previously discussed features. The prescriptive character of law, which makes it a system of social control, is due to the institutionalization of an accepted moral theory. The moral theory that is characterized by voluntary compliance or moral obligation to certain actions would be characterized with a coerced compliance or legal obligation when it is institutionalized as a system that must govern the conducts in the society.

The account on law as an institutionalized moral theory must not be misconstrued as an account that law is identical with morality. What the case is is different from what the case ought to be. Those that are legal does not necessarily mean that they are morally right. In such case, I do not assent to the idea that "an unjust law is not a law" or that "an immoral law is not a law," for it may be the case that there is a society that adopts statutes, that we would deem as unjust and/or immoral.

Likewise, the account on law as an institutionalized moral theory must not be misconstrued as an appeal to the idea that "moral validity is a prerequisite for legal validity," which is a characteristic of Classical Natural Theory. It is true that what the case is is different from what the case ought to be. But this does not necessarily mean that the "is" is necessarily connected with the "ought," because there is a middle ground, which is the "wish." What the case is and what the case ought to be are both different from what we wish to be the case. What we wish to be the case is the middle ground between what is legally accepted and what is morally right (such is if there really is an Absolute Morality that tells us what ought to be the case).

It is often mistaken that what we wish to be the case is the same with what the case ought to be. Such is because it is construed that when man indeed knows what the case ought to be, then he would wish that the legal system must be anchored on what the case ought to be. There is, however, a great difference between them. What the case ought to be is dictated by Morality. If there is an Absolute Morality, then what the case ought to be is unchangeable and independent of any human considerations. It does not depend on our wants or on any wishes one has regarding the route the legal system must take. What we wish to be the case, on the other hand, is dependent on how we want the legal system to be, whether or not this want directly captures what is being dictated by Morality/morality. It is, thus, merely dependent on our judgments on how things should be, and not on how the things should be.

The difference between the three - the is, the ought to be, and the wished to be, is better explained through an example. Let us use the employment or threat of force by states in the international arena as our example. The United Nations Charter, which is a legitimate source of International Law, gives its member states the right to wage a war as a sort of collective self-defense. Article 51 of the UN Charter states "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence [sic] if an armed attack occurs against a Member of the United Nations…."[3] This granting of 'inherent' right to the member states through Article 51 of the UN Charter describes the "is," or what the current legal system provides. The "wished to be" is the principle embraced by Article 51, which is the existence of inherent right to individual and collective self-defense. The waging of war as a sort of self-defense is anchored on the assumption of "just war,"[4] which allows for the deliberate use of force and even of killing in cases wherein the interest of the state or society is at stake.

The "ought to be" in the given example, is yet unknown. There are those that might argue that the wished to be is what's ought to be - that we wish to be allowed to wage war due to collective self-defense because we indeed ought to be allowed to wage war due to collective self-defense. However, the assumption that there is an inherent right to self-defense is different from whether there really is an inherent right to self-defense. Corollarily, the assumption that we must be allowed to wage war is different from whether we must indeed be allowed to wage war. Hence, the distinction between what we wish to be the case and what ought to be the case can be outlined as the distinction between the assumption on what is morally right and wrong and what is indeed morally right and wrong. As previously noted, what we wish to be the case is just dependent on our judgments, while what the case ought to be is independent of our judgments.

This analysis, though talks about the relationship between law and a moral theory, does not deal with what the case ought to be (Morality) and what we wish the case ought to be (what the correct moral theory should be). Whether there is indeed an Absolute Morality is not a concern of this analysis. The concern is on the assumption on what is morally right and wrong; and there may be an assumption on what is morally right and wrong with or without an existence of an Absolute Morality. This analysis aims to make a description of what the law essentially is, through an analysis of how it came to be - an analysis of how law is institutionalized as a sort of formalization of an accepted moral theory.

In making an account on how the law came to be, we must recognize that the "law is intimately related to the social complex in which it has developed."[5] Law is something more than what J. L. Austin argues as the command of the sovereign. It is the case that there is an aspect of habitual obedience in law as he has noted. However, there is more to law than just the command of the sovereign to its inferiors. We must take note of what sort of law the sovereign creates and what sort of guide the sovereign has in its creation of statutes. This could be done through an analysis of the social complex where the law has developed.

Likewise, as H. L. A. Hart has argued, Austin's command theory of the sovereign fails to account for the continuity and persistence of law even in the succession of different legislators.[6] When the sovereign, who is the legislator, has died, the law that he has created would not die with him. It is not even the case that when the legislator has died, the succeeding legislator has a tacit command of what was previously created as commands (laws) of the former legislator. There is more to law than just a command.

In such case, the theory that we must create must account for the idea that the law functions as a sort of social control, a term that seems more suited than command. The term command, as used by Austin, is composed of [1] desire, and [2] the capacity to impose sanction for the dissatisfaction of such desire.[7] Social control, on the other hand, does not necessitate the existence of imposition of sanction, which may not be present in cases in the system of contract law. Furthermore, with social control, we are not merely referring to the imposition of certain restrictions on human actions, which are created through sanctions. Control may restrain certain conduct such as rape, murder, etc. But it may also enlarge certain conducts through the enlargement of personal freedoms through the protection of free press, speech, etc. In such case, more than just looking at the command the sovereign creates, we have to examine how the law came to be and/or how the sovereign or (to put it rightly) the legislator create statutes.

Hart's account on law as the system of primary and secondary rules does account for the continuity and persistence of law. The secondary rules, or the rules about primary rules, create powers and authorities by which primary rules (the very rules that tell the people how to act) are validated, created and adjudicated. However, to explain law as merely a system of primary and secondary rules is to fail to make an account on how primary and secondary rules are created. Secondary rules only provides for a system by which rules can be created, validated and adjudicated, but not a system by which rules are actually created. The distinction between primary and secondary rules is only able to explain how the law works and becomes valid. It only explains the workings and/or structure of the legal system by showing us its internal (primary rules) and external structure (secondary rules). However, this approach to law, would fail to explain how the law came to be if it does not explain the content of the law - the very reason why the law is created. This approach of Hart explains how the law can be created through its structure (that can be seen internally and externally through primary and secondary rules), but not how the law is actually created, which can be explained by referring to the content of the law.

As to the content of law, Hart argues for a necessary overlap between law and morality. He argues that the two are concerned with the same issues and problems. He calls this the "Minimum Content" theory of Natural Law. The overlap is only at a minimal level because though they deal with the same problems, they deal with these problems differently.[8]

I concur with the assertion of minimum content theory that morality and law deals with the same problems. However, the overlap is not between law and morality or the "is" and the "ought." The overlap that exists is the overlap between law and the legislator's moral judgment - an overlap between the "is" and the "wish." This idea should not be interpreted as a concession to natural law theory because this is not a construal that moral validity precedes legal validity. The only requisite for legal validity is the institutionalized acceptance of a moral theory. This does not mean that the moral theory must be the correct one (if there really is a correct moral theory).

After analyzing Austin's and Hart's theories and after recognizing the lacking features of their theories, we must now go back to our assertion on how the law came to be - that it has a relation to the social complex wherein which it has developed. We must look at law as the product of the society. It is a social means to a social end. This social end is dependent on the society's sense or understanding of what is right.

People in the society have intuitive feelings about what is right and what is wrong. This does not mean that they have innate knowledge of morality. This simply means that the society provides them the environment by which they are accustomed to certain beliefs and hence, certain sense of what is right. Law, then, can be seen as a product of a collective belief of the people in the society. With this, it could be said that the true test of law is not its authoritative source (or the sovereign that gives commands) but its conformity to what the society has accepted as morally right.

One may counter this idea by pointing to the existence of laws or statutes in a society that the people of such society consider as unjust or immoral. It may be argued that in an authoritarian state, the ruler may create statutes that are binding to his people even if these people do not consider the statutes as moral. However, though it is true that the ruler, who is also the legislator, may create statutes that the people deem as immoral, this does not mean that there exists no institutionalization of a moral theory. The statutes that the ruler has created are formalizations of the moral theory that he upholds. Since he is the legislator, he has the monopoly of the creation of statutes, which he could use in order to advance his sense of what is right.

If this is the case, one may again counter by saying that law is merely dependent on its authoritative source, which is, in this case, the ruler that created statutes that seem immoral for his people. This might contradict the view that the law is dependent on the society's sense of what is right. However, in analyzing law, we must analyze the system of law, and not the particular laws or statutes (or decrees). The statutes that appear immoral to the people may continue to exist, but if it is the system of law itself that the people see as immoral, such system of law will perish. In the given example, the people, though may be against the particular statutes that the ruler has created, are not against the law itself (or the system of law that such society embraces). The people's continued acceptance of authoritarianism and its corollaries is a sort of acceptance of a moral theory - a moral theory that gives paramount authority to the ruler and gives compliance to the corollaries of such sort of authoritarianism. The sense of right in such society can be seen in the acceptance of authoritarianism. And as long as the people accept this moral theory that allows for this sort of authoritarianism, the legal system will have its continuance and persistence. It is the people's acceptance that legitimizes the law or the legal system. This proves the point that the true test of law is its conformity to the society's sense of what is right.

In the previous example, the moral theory that the society adopts is institutionalized due to such society's (the assemblage of its people) acceptance of it. This institutionalization is that which gives the law, which is a product of this institutionalization of a moral theory, its prescriptive character that makes it a system of social control. People ought to act in accordance to their sense of right.

It may be the case, however, that not all people in the society assent to the moral theory that is institutionalized. In such case, the moral theory that is adopted and whose compliance to it is formalized through the creation of law is that of the moral theory that the legislator wishes to promote. It may be the case that the legislator indeed upholds the moral theory, or it may be the case that the legislator only wishes to promote the moral theory due to the demand of the majority. What is clear in this case is that the law itself is created through an institutionalization of certain moral judgments that is adopted by those who created the law. Law, here, can be seen as the product of culture in the sense that it is dependent on the moral theory that the society (or at least the legislators in the society) upholds. Law can also be seen as the means for advancing culture - a means for advancing the moral theory that seeks to be formalized (through the compliance of the people). The special role of the legislator in creating statutes and his privilege to advance his personal moral judgments does not point to the paramount significance of authoritative source in making an account of the essential nature of law. As aforementioned, the true test of law is the continued acceptance of the people. If vast majority would want to change the law as it no longer conforms to their sense of right, the old law will perish and will be replaced with a new one.

This account on law is better understood through examples. The laws or statutes in the Nazi Germany had received a widespread disavowal not only from Germans but also from different parts of the world, which lead to the formation of the United Nations and of the UN Charter. UN Charter sets new standards, which manifests a moral theory that differs from those of the Nazis.

During the time of Hitler, the statutes were not initially seen or considered as immoral by its people. In fact, they accepted the moral theory that Hitler, then, advocated. Nazis theorized that they (Germans) are a superior race. This view serves as the moral justification of their hatred towards other races, especially the Jews. The Nazi Movement was then the largest party in Germany. It, as well as the moral theory that it advocated, received popular support from Germans. Such sort of moral theory that affirms their superiority was what the Germans needed during those times when Germany encountered oppressive economic and political problems due to Treaty of Versailles. The statutes in Nazi Germany were all anchored on this moral theory that argues for the superiority of the German race.

The widespread valuation of human rights, however, condemned Nazis' racial actions. The UN Charter, which is binding to all its member states including Germany, manifests a moral theory different from that of the Nazis. UN affirms the equality among men, regardless of gender and race. UN Charter, as a sort of an institutionalized moral theory receives widespread acceptance that further legitimizes the adoption of such moral theory. The demise of the laws of Nazi Germany is due to the change in values of its people, which is also affected by the demands of other countries for Germany to withdraw its "barbaric"[9] acts towards other races.
The laws of other countries may seem primitive to one who defends a western view of law. India, for example, had a caste system, which has a religious / moral background. Such system is dependent on how they wish to be the case (or on how they assume the case ought to be). China had a law that castigates the suspects that are not yet proven guilty. Such is because this law is anchored on the moral theory that is accepted and institutionalized in their society, the theory that "one is guilty until proven innocent," a theory different from what the UN Charter upholds.

Here, we could see the capability of the law to advance culture or (to put it more appropriately) moral theory. India and China were / are only two of the countries that embrace a different culture and hence different moral judgments towards different problems. But because UN Charter is binding to its member states, UN Charter serves as a system of social control by which India and China were forced to conform to the moral theory that is being embraced and institutionalized. The leaders and citizens of India and China may opt not to conform to UN Charter, which is a set of institutionalized or formalized moral judgments about particular issues. However, the institutionalization of an international law would lead to the widespread valuation of the moral theory that is being embraced or assumed by such international law. Citizens of India and China might indeed think that they do have inherent rights as being provided for by UN Charter. The demand of their citizens, as well as the pressure of the international community would make these countries conform to what was institutionalized. It is not that they are merely conforming, they are doing so because they see the UN Charter as appealing. Upon seeing UN Charter as appealing, they support the continuance and persistence of UN Charter through an acceptance of the moral theory wherein which UN Charter is anchored.

The previous examples show that law is simply an institutionalized moral theory. It is not anchored on self-evident moral principles, but merely on people's judgments. The legal system or what the case is is not anchored on what the case ought to be but merely on what we wish to be the case, which can also be stated as what we assume to be the case.



[1] A society's act of regulating the actions of its people through certain statutes marks the existence of law. However, these statutes need not be for the general welfare in order to be called a law. What makes these statutes part of the law is their ability to regulate or control the people and not their ability to promote the general welfare.
[2] Jeffrie G. Murphy and Jules L. Coleman, Philosophy of Law: An Introduction to Jurisprudence (USA: Westview Press, Inc., 1990), p. 6.
[3] Ian Brownlie, Principles of Public International Law, 6th ed., (US: Oxford University Press, Inc., 2003) p. 700 - 701.
[4] The phrase "just war" is borrowed from St. Augustine
[5] Carlton Clymer Rodee et al., Introduction to Political Science, 4th ed., Asian Student Edition, (McGraw-Hill, Inc., 1983) p. 57.
[6] Jeffrie G. Murphy and Jules L. Coleman, Philosophy of Law: An Introduction to Jurisprudence, p. 24.
[7] Ibid., p. 21.
[8] Ibid., p. 38.
[9] The term "barbaric" is often used by those who condemn the Holocaust or the attempt of the Nazis to kill all of the Jews in Europe, as well as those they deem as undesirable.