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Intersection between law and morality - Coggle Diagram

- - - - does the intersection create issue when trying to explain fundemetal questions like: Why are certain offences given more weight in terms of culpability than others
        
        The intersection of law and morality indeed creates significant issues when scholars attempt to address fundamental questions such as why certain offenses are given more weight in terms of culpability than others. This complexity arises because legal positivism and natural law theory offer different perspectives on how laws are justified and how moral considerations should influence legal decisions.
        
        Different societies and legal systems have varying moral frameworks, leading to inconsistencies in how offenses are weighted. While natural law advocates for universal principles, in practice, the interpretation and application of these principles can vary widely, causing discrepancies in legal culpability across different jurisdictions.
        
        Legal positivism's emphasis on procedural validity can seem inadequate when explaining the rationale behind the severity of offenses. Without incorporating moral judgments, positivist frameworks struggle to provide satisfying answers to why some offenses are punished more harshly than others, especially when societal expectations demand moral reasoning.I
        
        The result of this dichomotous view has therefore resulted in a There is a disparity between the intense moral passion that we feel in condemning something as evil and our ability to give a conceptual account of what we mean by evil.
        
        is someone evil becuase the break the law. the law demarcates right from wrong
        
        Nevertheless, Crofts argues that contemporary discussions of the criminal justice system often overlook the issue of how criminal legal principle’s structure immoral behaviour. Instead, they focus on descriptive explanations of the law, which portray crime as a violation of criminal statutes that is inherently wrongful. the crime is wrongful in and of its self
- - - - According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.)
        
        The idea behind “positivism” as a legal philosophy is that legal systems are “posited”, that is, created, by people, rather than having a natural or metaphysical origin
        
        the validity of law is determined by social facts and established procedures within the legal system, independently of its moral content.
        
        The validity of a law is rooted in the authority of the body that enacts it. Legal positivists argue that the legitimacy of law comes from its source – typically the sovereign or a designated legislative body – and not from any inherent moral values. This perspective is encapsulated in the work of H.L.A. Hart, who suggests that the rule of recognition, a social rule that specifies the criteria for legal validity within a given system, is central to understanding what counts as law
        
        Social and legal narratives
        
        Therefore
        
        The legitimacy of laws is based on adherence to proper procedures. For example, a law passed by a legislature following constitutional procedures is considered valid, regardless of its moral implications. This procedural aspect is a cornerstone of legal positivism, emphasizing that the process by which a law is made is what grants it legal force.
        
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        “This normative suppression can be explained in various ways, including a consistency with the dominant model of jurisprudence – that of positivism – which asserts a separation of law and morality. Positivists conceive of the (criminal) law as a discrete and closed system that can and should be understood and applied without reference to politics, morality, religion, history or sociology. On this approach, open-ended, explicitly evaluative terms such as ‘malice’ and ‘wickedness’, which invite moral assessments, are to be replaced by analytic, factual questions such as whether or not an accused had the necessary intention to commit the crime.”
        
        “Even narrow accounts of wrongfulness import tacit normative assumptions. Descriptive statements about the law presuppose and construct the normative. To paraphrase Northrop (1959), those people who say they don't have a theory of wickedness just do not know what their theory is.
        Badness is integral to the organisation and expression of blaming.”
        
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        How to positive law structure the nature of morals
        
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        Hart explains that laws are posited norms created by human acts and that their validity is independent of their moral content. This is often referred to as the “separation thesis”:"Law is a posited system of norms, which may accord with moral standards, but will still be law if it doesn’t.
- - - - Natural law is something which is said to exist whether or not any person, judge, or legislature has ordained what the law is.
        
        Morality is a prior state of affairs
        
        "True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting". This implies that natural law embodies moral principles that are inherently known through human reason and are constant over time and across different societies.
        
        Natural law is based on moral principles that are inherent in human nature and can be discovered through reason. It posits that there are certain moral truths that are self-evident and serve as the basis for just laws. According to Aquinas, "Natural law is that part of the eternal law which is discoverable by reason and which is to be found in the human mind".
        
        Natural law is considered to be universal, applying to all people regardless of culture or time period, and immutable, meaning it does not change over time. As Cicero states, "True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting".
        
        Natural law is based on moral principles that are inherent in human nature and can be discovered through reason. It posits that there are certain moral truths that are self-evident and serve as the basis for just laws. According to Aquinas, "Natural law is that part of the eternal law which is discoverable by reason and which is to be found in the human mind".
        
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- - - - laws and moral judgmenets are not seperate but interelated
        
        Social meaning and laws
        
        What are the implications:
        
        “Yet the relationship between law and morality is more complex than suggested by the framing of the oppositional question of whether or not the law should regulate morality.”
        
        Dunster: One significant way the document illustrates this integration is by highlighting the situational nature of moral judgments. It argues that moral character is not inherent in behaviors themselves but is contextually determined. As the text states, "The observer can never look simply at the behavior to find its moral character revealed. Cheating, lying, stealing, adultery, and even premeditated murder are conditionally and situationally identified and approved. Honesty, fidelity, and virtue are situationally disapproved. Though we must look at the context in order to understand when and why morals are invoked".
        
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