Connections between law and morality

In fact, our Constitution has been redacted exactly after a great conflict (as everybody knows between 1946 and 1948) and it has great

scars which have signed profoundly our “founding fathers” ‘ beliefs. World War II has been characterized by a huge violation of human

rights: it is not complicated to understand what we are talking about if we remember concentration camps, medical experiments and all the

horrors brought by Nazism. That is why, in my opinion, the founding fathers in 1946 felt a big need to specify and put in writing some

fundamental human and civil rights which were supposed to characterize our new legal system. Indeed, that was felt as a primary lack by

all nations involved in the atrocities of Nazism: we can find lots of references to the right of life or to the right of liberty, for example,

especially in the neo­born constitutions like the German or the Portuguese one, just to make few quotations.

Hence a lot of countries from the European area modified their attitude towards human rights as we said, especially moved by the idea that

protecting people against discrimination or unjustified murders was morally right. I strongly believe that what moved European

constitutional movements, after World War II, was the awareness that morality could not be anymore separate from the fundamental

principles of the modern constitutions. Actually fundamental principles are moral and pure morality and, consequently, they obviously

influence our laws and rules.

However, we shall start from the origins of this great debate which interested many philosophers and legislators: firstly Natural Law Theory

and Legal Positivism were the philosophical currents which greatly argued about the necessary connection between law and moral issues.

Within natural law theorists, St. Thomas Aquinas is probably the one who, for the first time, pointed out that is also important to understand

how law and morality interact and not only “what law is”. Natural law’s motto is “law is a rational standard for conduct” and rationality

makes a law binding in conscience. Reason is the very first principle of human acts and, for Aquinas, is supposed to be for the common

good: this is in my opinion strictly connected to the morality issue. Hence, the only one who can really understand what it is reasonable

and, consequently, morally right for the society is a person with an internal point of view: so, by somebody who has care of the community.

Anyhow, always according to Aquinas’ theory, natural law is a group of fundamental principles which governs our conduct but, still

according to this syllogism, in order to be defined as “law“, a norm must be required by morality. In that sense, we can say that morality

and reason are the two fundamental issues which have authority in the community designed by natural law theorists.

To come back to what we have said in the first paragraphs, in our world actually exist some moral absolutes: for example, everybody is

aware that to kill innocent people is morally wrong and consequently legally unacceptable. This is why I said that finally, after the World

War II, legislators remembered the existence of those principles which widely influenced constitutions of the 20 Century.

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As we said before, Natural Law Theory brought lots of critiques, especially from legal positivists who had a more “empirical” view of legal

systems. According to this idea, rules are independent from social or political issues because “existence of law is one thing, its merit or

demerit is another”: the exact contrary of the Natural idea which believes, as we have seen, that norms and rules are socially and morally

grounded.

Moreover, the major critique is that social rules can be legally valid even if it is not completely reasonable to comply with them: so,

reasonability is far from decisive according to legal positivists. As we have previously said, Legal Positivism ’s proposal is to demonstrate

that law is in fact an empirical issue, a kind of science which is easy to predict and control. As a consequence, is not difficult to understand

that it is the major challenge posed by legal positivists: how German lawyers and judges could do so little to resist the creation of evil Nazi

laws? Firstly, it is clear according to Legal Theory that “law is law independently from moral and political sources”: Nazi legislation was

correctly promulgated and commonly accepted however it was clearly in contrast with any logical criteria. German people were actually

obliged to obey to a law which declared that it was right to kill Jews in concentration camps, or they were sanctioned. That kind of

observation may give reasons to Natural Law Theory and that is why legal positivists immediately tried to point out that Legal Positivism

could be useful to resist and contrast evil laws even if correctly promulgated by the authority.

The one, who strongly argued that, is Hart against Fuller using as reason the fact that a legal positivist is aware that morality and

legislation must be divided, while a natural theorist only makes confusion by saying that “an unjust law is no law at all”.

Honestly, I consider this argument too weak: perhaps those who think that an “internal morality” guides us to a correct legislation are only

dreamers, but I find it hard to think about legislation as a mere count of what population needs and wants. I am convinced that at the origin

of every law there must be a basic level of respect of fundamental principles, if not we are in chaos and anything is no longer certain.

However, I must admit that it can be quite drastic. So try now to find a compromise between Hart ’s view and the moral one. According to