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.

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