Much of the law is based in philosophy. Meta-ethics is one such branch of philosophy that attempts to understand the underlying assumptions behind the moral theories that influence law. In other words, it tries to find out what we mean when we use words like “good” and “bad”, “right” and “wrong”. Some believe that there is an objective good, while others believe that good is subjective. These two main schools of thought are labelled cognitivism and non-cognitivism. Deeply rooted in philosophy, the law seeks to advocate for what is “good” and “right”.
Cognitivists believe that there is a universal moral truth and that we know and are capable of discovering these moral truths. Moore, an intuitionist philosopher, claims that moral truth is a gut instinct: we recognise what is morally good in the same manner that we can recognise that the colour yellow is yellow. We do not have a reason for recognising the colour, it simply is yellow. Goodness is felt automatically, and we do not need to rationalise why something is good as we know it intuitively. However, whether something is good or bad is not always so clear. One has to take into account a multitude of different factors such as the circumstances in which the action was carried out. For instance, someone might tell a white lie and in this case it would be unclear if they had committed a morally wrong action or not. It is not as simple as Moore claims to just ‘know’ what is right and what is wrong.
Moral realism, reasons that there is a connection between facts and values as we can provide factual reasons for our moral claims. Therefore, a moral claim is also a factual claim. For example, someone might say “being vegetarian is good” and their reason for believing this is because they are concerned about animal welfare. Being concerned for animal welfare is a factual reason that they can use to justify why they think being a vegetarian is good. Thus, their moral claim that “being a vegetarian is good” is also a factual claim.
Another cognitivist theory is that of cultural relativism. However unlike the aforementioned theories, it does not concede to the idea of a universal moral truth. Cultural relativists argue that there is no singular true morality because there are significant differences in values across cultures, instead moral facts are relative to the culture they are developed in. For instance, in most Asian societies, great value is placed on interdependence between people. Identities are tied to social roles and relationships which can be seen by how last names precede first names in East Asian countries. While this is the case in Asia, in Western societies, value is placed on the individual and identities independent of social roles and relationships. While both societies may value both interdependence and independence, they prioritise one over the other. Cultural relativists also assert that someone outside of a culture cannot critique or criticise the values and moralities within that culture. This is practical in defending a culture’s rights and ensuring equality. For example, a cultural relativist will affirm that the French government had no right in banning hijabs in French public schools. However, one can critique cultural relativism by pointing out a major loophole. If no one is allowed to critique a culture’s moral norms, we easily fall down the rabbit hole of permitting everything and anything, even outrageous violations of human rights such as honour killings.
Non-cognitivists believe that there is no universal moral truth. Logical positivism remarks that moral statements are mere opinions or emotions. Moral claims are not universal or factual and cannot apply to others. Take, for example, someone who has just seen a news report about a mass shooting. They will most likely think that the shooter should be jailed because they are a bad person. While they are using moral language, saying that the shooter had committed a morally wrong action, what they are actually doing is expressing disapproval of the shooter. For a less extreme example, say someone declares “lying is wrong!” Logical positivists will maintain what they are truly exhibiting is disapproval for lying and approval for honesty.
Some of us may be cognitivists and others, non-cognitivists. This split emphasises the difficulty in declaring without a doubt what objective moral truths are, or whether they even exist.
Most people believe that the law upholds what is good and what is morally just, acting as an objective moral standard and keeping society in check. Yet, in the debate between cognitivism and non-cognitivism, the uncertainty of objective moral truths can imply that there is no singular correct definition of good. So what will this mean for our justice systems?
If the law enforces morals, subjective morality can lead to chaos: if we all have different ideas of what good means, how can our society operate in a way that benefits us all? To illustrate this, imagine a scenario in which a father has killed three innocent civilians because a kidnapper threatened to torture his daughter if he did not do so. Were his actions morally justified? If morality is subjective, there are arguments both to justify and to disprove of his action. The law can then either condemn or praise the man. If the law enforces morals, subjective morality will turn the justice system on end, resulting in an ineffective and useless judicial system.
Because of this dilemma, it is better to think of the law as an instrument that upholds the functions of morality.
There are two proposed functions of morality: interpersonal and intrapersonal. The interpersonal aspect of morality encourages good relations with others, while the intrapersonal aspect of morality helps us become a more virtuous person. These two aspects combined leads to us becoming constructive members of society. This in turn makes society harmonious, orderly, and peaceful and that is what the law ultimately aims to do.
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