MAJOR ISSUE: RELATION OF LAW & MORALITY

MAJOR ISSUE: RELATION OF LAW & MORALITY Major Authorities: Lon Fuller (Jurist) Oliver Wendell Holmes (Jurist) Robert Cooley Angel (Sociologist)

Q: WHAT IS LAW? … MORALITY? • Morality: • Basic Beliefs of a Society Re Appropriate Behavior • Law: • 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: • POSITIVISM • Law Is an Entity in Itself • NATURAL LAW • Laws ARE – & SHOULD BE – Based on a PRE-EXISTING Code of Morality

NATURAL LAW • Emphasizes Connection Between Law & Morality • 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 Religious Symbols • EX: Southern Poverty Law Center re Hate Crimes

LON FULLER: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 Society • 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

SUMMARY: 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 – Abortion • Gambling – 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 CONSEQUENCES • 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 POSITIVIST BASIS • Some People Likely to Disagree with the Positivist Principle • Have a Preference for a Natural Law Approach • Particularly Among Religious Leaders • Also Among Very Religious People

DISAGREEMENT WITH SPECIFIC ISSUES AS "VICTIMLESS" • Even People Who Agree In Principle That the Criminal Law Should Not Include Private Behavior • 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 Accepted? • 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 DISAGREEMENTWITH THEIR VIEWS • 1. DISAGREEMENT IN PRINCIPLE WITH POSITIVIST BASIS  PREFERENCE FOR NATURAL LAW APPROACH • 2. DISAGREEMENT WITH SPECIFIC ISSUES AS "VICTIMLESS"

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 Case. - No Guiding Principles On Which Law Is Based. • 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 the Variation?

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

CONCLUSION: WHAT 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

MAJOR ISSUE: RELATION OF LAW & MORALITY