Is There A Place For Morality In The Rule Of Law?
This writing explores the question of rule of law and morality: what we mean by the rule of law, what exactly morality is, what the relationship between the rule of law and morality is, and whether they influence each other and to what extent, if so.
The fundamental principle which ensures good governance as well as individual rights and liberties is the rule of law under which no one is above the law and every person living in a particular society is subject to the law of that society. All other notions associated with the rule of law must also be considered alongside it (for instance, the idea that a person must be presumed innocent until proven guilty).
Morality, on the other hand, is a concept that distinguishes right from wrong and may refer to conduct that is considered acceptable or unacceptable in a particular society. The source of morality is usually considered to be natural law and God’s instructions through sacred documents. Morality may be religious or moral, therefore, it is a very subjective concept.
There are many questions related to the relationship between law and morality and many issues that arise when faced with such questions. One of them is whether or not the legislature reflects the society’s moral values.
Every human being possesses a body and mind and these in turn determine the variation between different individuals. No human being can feel or think exactly as another human being. All individuals hold a unique perspective about the world and have individual desires that they may or may not get to achieve. In that sense, the world is full of scarcity where conflicts of interest and conflicts of view tend to arise. If a person puts the interests of another before his or her own, it will obviously promote harmony, but human beings are not perfect and they tend to work for personal benefits. This makes it difficult for individuals to live together.
I believe that the idea of solving disputes by a social, neutral mechanism becomes the law. Coercion and sanction may be important considerations but not the basic elements to make law work. The law is meant to facilitate. It is a mechanism that resolves conflicts of interest among individuals. This idea of law bring us to the concept of rule of law which aims to treat every individual equally, irrespective of social status. Under the rule of law, individuals are protected from the element of coercion. Another element of the rule of law is equality, which is often confused with generality. Laws are based on generality and bind everyone, not any singular group. But equality here means that every individual is subject to the same law and procedures and has the same rights.
A close relation exists between the rule of law and morality, since morality complements the rule of law. But it should still be considered a casual relationship, as laws are not made out of moral principles, rather, they are established and shaped by a “legal consensus of right and wrong”. And even though morality is ultimately involved in making and modifying the law, it is never legally binding and does not have constitutional value.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which she might be associated.