The Legislation of Morality and Its Compatibility with Legal Positivism

Why Should Morality be Legislated?

This paper shall tackle and focus on the reasons as to why Morality should be legislated in accordance with the existing Laws in general. People who have delved in the field of the Philosophy of Law would know that various arguments have been made as to whether or not Morality and Law can be incorporated into one another. The presumption is that Morality has no connection with the Law, and applying it so would result in a contradiction. Law, or at least in the legal positivist sense, follows an objective path. That is, it should be based on facts established within a social construct. Applying a subjective thesis to it will change its nature. Thus, it would follow that Morality has place in the eyes of the Law. However, the author shall argue otherwise. It is possible for Law and Morality to “cooperate” with one another, and thus have the latter legislated without any contradictions. The main argument for such would be that Morality is necessitated upon by Law, a just one to be exact. This does not mean that Morality is embedded in Law. While it doesn’t tell its constituents what to do, it rather enables them in making decisions where the Law cannot account for justly.

This paper aims to address this issue by fulfilling the following objectives:

1.) To establish what Law and Morality means

2.) To trace the connection between Law and Morality

By the end of it, the paper should be able to answer these two overlying questions:

1.) Why should morality be legislated, and;

2.) What should be the line between Law and Morality?

As mentioned previously, the issue between the synthesis of Law and Morality is not an entirely new one. Philosophers of Law have touched upon the issue, especially those in the topic of Legal Positivism and Natural Law. Austin (12) argues in his article “The Province of Jurisprudence” against the existing connection between Law and Morality by stating that the “is” premise does not necessitate an “ought” conclusion. Of course, this would be more accurately depicted as his rejection of the Natural Law and is derived upon by Utilitarian perspective of Jeremy Bentham. Hart also attests to this but rejects overall the need to distinguish between the is-ought distinction, therefore rejecting the need for morality in Law. On the other hand, arguments for the other side have also been made. Fuller’s main thesis on his article counter-argues