01/04/2020: Hart and Fuller

(If you're reading this well after the release of this article, it was April Fools' Day and we were pretending to be a law blog instead of an otaku fan magazine...)

The problem I have with Positivism is that it feels like a huge cheat. It is not about law always being separate from morality, neither is it about whether morality being tied to the law is good or bad. It is simply about how the law need not be attached to morality. So long as a simply instance of the law being separate from morality can be proven, Positivism will still stand correct no matter how many instances of the law being tied to morality exists. Thus, although I find Positivism to be the truth about the nature of the law, I find it annoying to buy into as it feels like such a cheap concept to sell. I would thus use this thought piece as an attempt to break down Positivism, as I hate cheap victories.

I think the first possible way to break down positivism is through analysing what morality is in the first place. Most people would think that morality is something that exists in our mind. A framework perhaps, that tells us what is right, and what is wrong. I disagree. Morality is a standard defined by society. Though we may have our own innate sense of “morality”, it is not actually moral until society affirms it to be moral. To this, there are two general schools of thought that seem to exist: one believing that morality is purely a social construct, and the other that morality is purely innate. I think it is somewhere in between.

Morality cannot be purely a social construct, as if that were the case everyone should have the same moral codes. Children should be behaving synonymously to their parents and teachers. However, it is quite evident that that is not the case. There are often times when millennials disagree with their more traditional parents on issues like having friends who identify as an LGBTQ or dating someone of a different race, things that more traditional parents might otherwise feel are immoral. Even if it can be argued that this is merely a clash between different socially constructed forms of morality, at some point in time someone must have questioned the existing train of thought to create that new version of morality. This means that our own innate ability to discern or decide what is good or bad does exist. Morality thus has an innate nature.

However, I believe that morality cannot be purely innate as well. This is because Morality cannot exist in isolation. An idea on its own cannot be considered moral, unless it has the affirmation of a significant group of others to be moral. What I believe to be “moral”, cannot be considered “moral” unless others around me affirm that my beliefs are “moral”. The Nazis can believe that gassing the Jews is absolutely moral, but such a belief will not be taken by everyone else to be a moral one, and it is thus immoral an act. As such, a person’s innate sense of “morality” cannot be considered to be moral unless others around them affirm that it is moral.

That aside, it should be noted as well that people do subscribe to existing ideologies that others around them have as well. Peer pressure, religious preaching, even advertisements are all social mechanisms that influence an individual’s mind, influencing what an individual believes is right and wrong. Although individuals may have the capacity to process these external influences, it is no doubt the case that individuals can be influenced by them as well. As such, a “natural theory of law” cannot exist, as what an individual perceives to be right and wrong can be the result of external influences on them as well.

Given how morality has an innate nature to it which can be influenced by external sources, and cannot exist in isolation, my opinion is that morality is like a mirror. It is something that bounces off society, and is used by individuals to reaffirm their own thoughts and beliefs. I can believe X to be moral, but it is only until I am affirmed by the rest of society that X is moral that X really becomes moral. In the case that society says that Y is moral instead, I can either choose to be influenced by society to believe that Y is moral and X is immoral which makes me a moral person, or believe in the converse which then makes me an immoral person. Morality thus isn’t as much a guideline on the rights and wrongs as most people would think it to be, but rather a reflection society’s beliefs against that of individuals. Society is therefore what sets the benchmark for morality.

Given this definition of morality, I think it is thus important to look at how the law relates to it. To the average layperson, the law represents what order is in the country. It reflects the people’s will be live a life free from chaos, free from evil, free from crime. In so far as the perception of the law by society is one that reflects the general will of society, it should be moral as the benchmark of morality is set by the general will of society. This is the reason why I believe that Fuller’s idea of “fidelity of law” exists, because in a natural state of things people will see the law as the hallmark of what society deems to be moral.

Of course, the counter argument to this would be: “what about bad law?”. The simple answer to that is, bad law is still a reflection of the general beliefs of a society, in so far as it is the law. As much as stoning of the homosexuals in Syariah Law and slavery are much detested by people like us today, from more “developed” societies, who find these laws “immoral”, the community who adopted those laws and followed those laws still see them as laws, and hence still see them as what the general community believes is “moral”. Perhaps some individuals in those communities disagree. Those individuals would then be the “immoral” ones in those societies. Perhaps there are more of such individuals, who try to push of a change in the law. Are all of them then immoral? The answer would be once again, yes. That does not change the fact that the general will of the people is still represented by the law, and people still accept it to be the law, thus showing that it is still what society deems to be right and hence “moral”. However, in the instance by which they do successfully change the law, that would be an indication that the law is no longer the law, and is thus no longer what society deems to be moral. When America abolished slavery, that was the greatest signal one could ever send out that slavery is bad, as the act of abolishing slavery showed that the general consensus in society is now one that finds slavery to be immoral rather than moral. Bad law is thus still moral, in so far as it remains the law.

The last possible attack to the line of logic would be: “what is the law does not represent the will of the people? What if it is set by a bad government?” The answer to that would be that it does not matter as to how or who made the law. A dictatorship could have set the law, a democracy could have made the law. The baseline would be that in so far as the bulk of society chooses to abide by the law and respect the law, individuals will continue to perceive that the law is a reflection of what the rest of society deems to be moral. The law does not protect people. People protect the law. However, if the law is set badly by a bad government, or if the law is and of itself is bad, it will naturally fall apart. People will eventually question the system, and the law will eventually lose its place as the law. That is the moment when the old law becomes an outcast as immoral, and the new law takes the throne as the symbol of morality.

In conclusion, morality is defined by society, not by individuals, and at the same time the law is what people take as a representation of society’s will. Morality and the law thus cannot be separated, as the law is always perceived to represent morality, in so far as it remains the law.

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