Monthly Archives: September 2020

On the Difference between Morality and Legality

In the previous essay I posed a question on which contemporary society is greatly confused: “What is the difference between ethics and politics, between what is right and what is legal, and between morality and legality?” I am perplexed about why people get the two spheres confused. The distinction is very clear, and I propose to make that clarity obvious in this post.

Some Definitions in the Political Sphere

1. In the sense I wish to use it, politics is the process by which people acquire the power to legislate and enforce policy within an established state whose legitimacy is generally accepted.

2. Political philosophy is rational reflection that aims to establish the rational grounds and just order of a legitimate state.

3. Legality is the quality attributable to an act because of its lack of conflict with the laws of the state having jurisdiction where the act takes place.

4. In law, an act is presumed to be legal if it is not forbidden by law.

Some Definitions in the Moral Sphere

1. Morality is the sphere of human behavior covered by the rules, laws, and maxims that determine what free agents ought to do independently of any calculation of consequences.

2. Ethics is a rational discipline that works to clarify the nature of morality by seeking the most basic grounds that justify its claims, defining its basic vocabulary—right, wrong, obligation, duty, good, and law—and deriving rules, maxims, and principles for morally relevant behavior.

3. Right is a quality attributable to an action because it ought to be done.

4. Wrong is a quality attributable to an action because it ought not to be done.

Two Areas of Overlap and Potential Conflict

Political Philosophy and Moral Philosophy

The best candidate for overlap between morality and politics is the space covered by political philosophy. Political philosophy, unlike the normal political process, cannot take the legitimacy of the state for granted. It must ground it in some reality capable of giving legitimacy to the state. Since the late Seventeenth Century, Western states have grounded the legitimacy of the state not in God or nature but in the social contract. States have the right to promulgate laws and enforce them on unwilling residents because of an implicit contract that binds each citizen to the others under law for the good of all.

Hence the legitimacy of the state is based on the consent of the people, and those who break the law violate their contract. The state is legitimate because it was created to enforce the social contract for the common good. Notice the moral rule embedded in the state’s foundation: the moral efficacy of the social contract is grounded in the principle that one ought not to break one’s promise to work for common good. In other words, the moral validity of the social contract is grounded in something like the “golden rule” in its negative form: you ought not do to others what you do not want them to do to you. A state’s legitimacy, then, derives ultimately from the moral obligation to keep one’s promises. If there is no moral obligation here, then the social contract is meaningless.

Sometimes the Same Acts are Forbidden

The second sphere of overlap arises because the laws of a state sometimes command or forbid behaviors that are also commanded or forbidden in the moral sphere. It is illegal to kill another human being without legal justification, and it is also immoral. It is immoral to rob, steal, and swindle, and these things also violate our moral obligations.

Here is the difference between legality and morality:

To say that killing another human being is illegal says only that a state has legislated a law that forbids this act. To say that killing another human being is immoral says nothing about its legality but only that it ought not to be done.

An act can be illegal within a state but morally obligatory under a higher law. Likewise, an act can be declared permitted by a state but be known to be immoral by a conscience in tune with the moral law. Something can be declared a “right” by the state when it is “wrong” measured by the moral law. Clearly, when we say a law is unjust we do not mean that it is illegal. We mean that it is immoral.

Next Time: the conflict over the boundary between morality and legality.

“Everything is Politics”

Carl von Clausewitz (1780-1831), famed Prussian general and author of On War, defined war as “the continuation of politics by other means.” The clear presupposition of von Clausewitz’s definition is that politics and war have the same end in mind, defeating and dominating all opposition. Only the means differ. Of course, we may object to the Machiavellian nature of von Clausewitz’s realpolitik. But as a description of how nations actually relate, it often fits the facts. As I try to make some sense of the upheaval that characterizes contemporary society, von Clausewitz’s definition of war comes to mind. Only, it needs to be flipped on its head, so that it fits contemporary social facts. It’s flipped form reads as follows:

“Politics is the continuation of war by other means.”

Follow me one step further. In times of national crisis, everything you do and say and every relationship becomes political. The novelist and Nobel Prize laureate (1929) Thomas Mann, writing about German culture just before WW I, said, “Everything is politics” (The Magic Mountain, 1924). Perhaps you have heard the feminist assertion, “The personal is political.” This slogan entered popular culture with the publication of Carol Hanisch’s 1969-essay by that title. It was used by Gloria Steinem and other feminists of the late Twentieth Century to make all dimensions of male/female interactions matters of public debate and policy.

It seems to me that the idea expressed in the assertions “everything is politics” and “the personal is political” has been taken up and generalized by contemporary post-modern culture. They are no longer merely theoretical and aspirational but are descriptive of the facts of the present state of society: every social interaction is a political act and every person is an ally or an enemy in a political cause. All relationships have become relations of power. In every interaction, we oppress or are oppressed, dominate or are dominated, we act as racists or anti-racists, or we win or lose. The logic goes as follows:

War is politics (von Clausewitz).

Politics is War (Highfield’s inversion of von Clausewitz)

The Personal (everything) is political (Post-Modernism)


The personal (everything) is War.

Think about it: social media, the press, sports, business, entertainment, education from kindergarten to graduate school, science, family life, and marriage—everything is political! Everything is war. And in war everything is fair: Pandora’s Box is opened. Legions of demons are unleashed: hatred, lies, slander, theft, murder, rage, betrayal, and spying. No evil is forbidden as long as it helps our side. “Truth” is only an idea that can be plausibly used to justify our cause. “Reality” is a state of affairs (in military terms, “facts on the ground”) to be created by power. “Justice” is a vision of our interests realized. “Peace” is but hidden preparation for war.

Concluding Thought

Genuine peace is possible only if we deny and resist the philosophy that asserts, “the personal (that is, everything) is the political.” The peacemaker denies that every relationship is a power relation. Peacemakers seek to replace win/lose with win/win interactions. They seek unity among differences. They expand rather than contract the space of the personal.

“Blessed are the peacemakers, for they shall be called children of God” (Matt 5:9).

Next Time: What is the difference between ethics and politics, between what is right and what is legal? If “everything is political” there can be no difference between the two. But peace is possible only if the two differ.