Warning. This is a rant.
What is the purpose of the judicial system? What is the purpose of law? The general consensus among law students seems to be that while there are many different purposes, upholding moral values is not one of them, or at least not one of the primary purposes. But does this really make sense? Is it even sensible to talk about law outside the scope of morality?
In pluralistic, western societies, people generally seem to accept moral subjectivism; that is, they reject the view that there are objective moral values that transcends any and all human communities. But I believe this viewpoint is untenable, and just a product of soft-thinking and ignorance dressed up as tolerance and understanding for other cultures. Some things really are wrong and some things really are right. In the name of not offending people who we don’t actually understand, in that humanity-centered Descartian view, people, and by extension, societies can do no wrong. Sin is abolished as mere unfortunate circumstances. Human responsibility is done away with in the name of autonomy. Because we are unwilling to admit the faults of our own culture, we lose the authority to criticize other cultures. Without accepting the presupposition of Original Sin, we are powerless to think critically about what is really wrong with the human condition and instead tread waters around the flotsam and jetsam of wrecked ideas. In reality, moral subjectivism does not hold up to even a moment of careful scrutiny.
Ask yourself: are there really nothing that is really wrong in every human society? Just because we are afraid of criticizing other cultures (which is a result of obstinate reluctance to admit our own sinfulness), we dare not say that their beliefs can be objectively wrong. Today we talked about statutory rape in class. So there is nothing morally wrong with raping a 10 year old girl? If your mind is convoluted enough to answer that in some societies that might be okay and that therefore it is not wrong for them, just lower the number. Is it not objectively wrong to rape a 9 year old? An 8 year old? I hope there was no society that thought this was okay. However, if there is/was, then I hope you can say that such a society has immoral rules of social conduct.
What about the less extreme moral laws? Don’t each cultures have different ones? I believe that is a misunderstanding of what moral laws actually represent. In one culture, you may be required to take off your hat in a place of worship. In another culture, you may be required to sit on your hat instead. In the two cases, the specific manifestation of the moral values maybe different; but the general mores of showing respect to people or in places where respect is due, is the same. And this approach applies to all kinds of different mores be they honor, love, justice, and etc.
But even without this presupposition of moral objectivism, even if one believes in moral subjectivism, I find it irrational to believe that morality can never be a rationale or a basis for law. Yes, morality and law are distinct. However, this does not necessarily mean that they are mutually exclusive. In fact, without a sense of morality, law would never have developed in the first place. This is evident even in other fundamental pillars of law, like unjust enrichment and torts. “Eye for an eye” is not an ancient, barbaric code for savages; it is the reason we require gross negligence in criminal cases; it is the reason we prevent punitive damages in most contracts; it is the reason we enforce property rights. We bring up utility and policy argument and use them as substitutes for moral arguments and fail to see that there are moral components to them as well. We argue that the Model Penal Code has a strict liability for statutory rape of 10 year olds because they do not have intellectual capacity to make their own decisions. In other words, in the interest of autonomy, we want to respect their decisions only if they are capable of making them. In other words, it is ‘wrong’ to make decisions for those who can’t make them. We tried to escape the morality, but there it is. No matter which rationale you run to, some things are wrong, and some things are right.
Furthermore, even if we deny the moral basis of our rationales, we cannot escape the moral component of obedience to laws of the society. It is generally held to be morally right to obey the laws of the land. Give unto Ceasar what is Ceasar’s. If the laws are unjust, then it is morally wrong to obey them or to stand by passively. Moral reformers of the past two centuries, those who have abolished slavery and segregation, have improved the laws of the land precisely because they believed that some things really are wrong and some things really are right. And they thought that it was wrong to not change immoral laws.
Finally, we may fool ourselves into believing that we have no more use for morality since we are such enlightened beings. What rubbish. We forcibly thrust away our sense of justice that is innately written on every person, and let our societies be ruled by those who are swayed by their whims. Oh what Brave New World will we be heading into if we continue on this path! What will become of humanity when we lose our hearts, when we become Men Without Chests!
To recover from such foolishness, we must come back to the Gospel, or at least to the Bad News. Without an acknowledgments of our sinfulness, then all meaning and reason slowly degenerates into a void.
Okay. End of rant.