Laws without ethical content
Encyclopedia
A law without ethical content is one that does not proscribe or mandate an act because of the act's moral
or ethical value, but for some other reason. These laws should be understood to include not only statutory law
, but also case law
and common law
.
In general, a law may be said to have no ethical content if it represents a choice between two or more ethically equivalent options.
, namely that law and ethics are separable. Legal positivism states that one may disobey certain laws without doing wrong, or conversely that one may wrongfully obey certain other laws. Often contraventions fall into this category.
s are required by law to drive in the left-hand lanes of roads with more than one lane, whilst in others they are required to drive in the right-hand lanes.
It is generally understood that whilst having such a rule provides significant obvious benefits, neither driving on the left nor driving on the right is inherently ethically superior. The law exists to protect drivers from each other, rather than to prohibit drivers from driving on an unethical side of the road.
It would not usually be considered unethical to drive on the wrong side of the road when one knows there are no other vehicles on that road, although it may well be considered foolish, but it is also usually considered good that there is a consensus as to which side of the road one should travel on, and that such an arrangement is better than having no consensus, or allowing each county, town or road to impose its own rule.
.
No particular system has any inherent ethical value, and in some countries they are used side-by-side. In the United States
, for example, the government requires specific measure only for some uses. It does not proscribe customary units, and so in many spheres, either may be used.
In the United Kingdom
, law mandates the use of the metric system by most government bodies and commercial entities. In fact the rules are more complex than this since units which are likely to confuse cannot be used: listing weight
s in newtons, for example, is technically correct
, but not easily understood by most people.
But, the law doesn't prohibit an individual from measuring weights with such units, measuring lengths in cubit
s, or times in metres per c
, and it would not usually be considered unethical for one to do so.
Although the subject matter of a law may not be an ethical issue, the law exists to form a consensus for the benefit of society, and may be understood to gain ethical value from that purpose. Legal positivism would counter that this ethical value is derived from context and not from within the law itself. If it isn't unethical to drive on the wrong side when there are no other cars on the road, then it cannot be the law itself which has ethical value.
Many, such as Robert Alexy
, argue that since laws curtail individual freedoms, albeit for the benefit of society as a whole, all laws are ethically relevant. John Gardner
argues that "Every legal issue, however superficially technical, is a moral issue, for its resolution inevitably has important consequences for someone."http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1299017
Moral
A moral is a message conveyed or a lesson to be learned from a story or event. The moral may be left to the hearer, reader or viewer to determine for themselves, or may be explicitly encapsulated in a maxim...
or ethical value, but for some other reason. These laws should be understood to include not only statutory law
Statutory law
Statutory law or statute law is written law set down by a legislature or by a legislator .Statutes may originate with national, state legislatures or local municipalities...
, but also case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
and common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
.
In general, a law may be said to have no ethical content if it represents a choice between two or more ethically equivalent options.
Significance
The existence of laws without ethical content may be used to support the central claim of legal positivismLegal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
, namely that law and ethics are separable. Legal positivism states that one may disobey certain laws without doing wrong, or conversely that one may wrongfully obey certain other laws. Often contraventions fall into this category.
Traffic law
In many countries, motor vehicleMotor vehicle
A motor vehicle or road vehicle is a self-propelled wheeled vehicle that does not operate on rails, such as trains or trolleys. The vehicle propulsion is provided by an engine or motor, usually by an internal combustion engine, or an electric motor, or some combination of the two, such as hybrid...
s are required by law to drive in the left-hand lanes of roads with more than one lane, whilst in others they are required to drive in the right-hand lanes.
It is generally understood that whilst having such a rule provides significant obvious benefits, neither driving on the left nor driving on the right is inherently ethically superior. The law exists to protect drivers from each other, rather than to prohibit drivers from driving on an unethical side of the road.
It would not usually be considered unethical to drive on the wrong side of the road when one knows there are no other vehicles on that road, although it may well be considered foolish, but it is also usually considered good that there is a consensus as to which side of the road one should travel on, and that such an arrangement is better than having no consensus, or allowing each county, town or road to impose its own rule.
Systems of measurement
Many countries have laws mandating a particular system of measurement for use by government bodies and commercial entities. The most common system is the metric systemMetric system
The metric system is an international decimalised system of measurement. France was first to adopt a metric system, in 1799, and a metric system is now the official system of measurement, used in almost every country in the world...
.
No particular system has any inherent ethical value, and in some countries they are used side-by-side. In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, for example, the government requires specific measure only for some uses. It does not proscribe customary units, and so in many spheres, either may be used.
In the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, law mandates the use of the metric system by most government bodies and commercial entities. In fact the rules are more complex than this since units which are likely to confuse cannot be used: listing weight
Weight
In science and engineering, the weight of an object is the force on the object due to gravity. Its magnitude , often denoted by an italic letter W, is the product of the mass m of the object and the magnitude of the local gravitational acceleration g; thus:...
s in newtons, for example, is technically correct
Mass versus weight
In everyday usage, the mass of an object is often referred to as its weight though these are in fact different concepts and quantities. In scientific contexts, mass refers loosely to the amount of "matter" in an object , whereas weight refers to the force experienced by an object due to gravity...
, but not easily understood by most people.
But, the law doesn't prohibit an individual from measuring weights with such units, measuring lengths in cubit
Cubit
The cubit is a traditional unit of length, based on the length of the forearm. Cubits of various lengths were employed in many parts of the world in Antiquity, in the Middle Ages and into Early Modern Times....
s, or times in metres per c
Speed of light
The speed of light in vacuum, usually denoted by c, is a physical constant important in many areas of physics. Its value is 299,792,458 metres per second, a figure that is exact since the length of the metre is defined from this constant and the international standard for time...
, and it would not usually be considered unethical for one to do so.
Criticism
Not everyone accepts that there are laws without ethical content. Few would dispute that there is no ethical reason to prefer one side of a road or one system of units over another, but that does not necessarily mean that the law itself has no ethical value.Although the subject matter of a law may not be an ethical issue, the law exists to form a consensus for the benefit of society, and may be understood to gain ethical value from that purpose. Legal positivism would counter that this ethical value is derived from context and not from within the law itself. If it isn't unethical to drive on the wrong side when there are no other cars on the road, then it cannot be the law itself which has ethical value.
Many, such as Robert Alexy
Robert Alexy
Robert Alexy is a jurist and a legal philosopher.Alexy studied law and philosophy at the University of Göttingen...
, argue that since laws curtail individual freedoms, albeit for the benefit of society as a whole, all laws are ethically relevant. John Gardner
John Gardner (law)
John Gardner is Professor of Jurisprudence, University of Oxford and Fellow of University College, Oxford. He received his B.A., B.C.L., M.A., and D.Phil. from the University of Oxford, where he has also been associated with New College , All Souls College , and Brasenose College...
argues that "Every legal issue, however superficially technical, is a moral issue, for its resolution inevitably has important consequences for someone."http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1299017