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Public Morality and Law

Published online by Cambridge University Press:  24 April 2015

Christopher F. Mooney
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Extract

We take for granted in our Western tradition a certain convergence between morals and law. Morality, in so far as it applies to our public lives, is assumed to follow legality. We believe that in normal social circumstances we can recognize the moral values of a nation in its law. We therefore reject any suggestion that there can be such things as amoral politics or unpolitical morality. We assert that the fundamental moral principle in politics ought to be the observance of our country's legal processes, since legal process ought to coincide with moral conviction. When this is not the case, we insist, when there is no assimilation into the political arena of the moral convictions behind our laws, then the laws themselves will lose respect and we shall have more Watergates and worse.

In this article I propose to look more closely at this conviction that the legal standard is the moral standard for politics and government. I make three affirmations about law as a standard for public morality: first, it is a minimum standard; second, minimum though it is, law is nonetheless a necessary standard; third, because it is both minimum and necessary, law as a standard is incomplete.

Type
Articles
Information
Journal of Law and Religion , Volume 1 , Issue 1 , Summer 1983 , pp. 45 - 58
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1983

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References

1. See the excellent contemporary study of morality in public life by Winters, Francis X., Politics and Ethics (1975)Google Scholar.

2. John Courtney Murray comments on these contrasts between law and morality in Murray, J. C., We Hold These Truths 160–165 (1960)Google Scholar.

3. Id. at 166-167.

4. See, Chandler, R. C., Ethics and Public Policy, Commonweal, 05 12, 1978 Google Scholar.

5. Gilmore, Grant, The Ages of American Law 160 (1976)Google Scholar.

6. See Winters, supra at 18-19, 47-48.

7. On public happiness, see Arendt, Hannah, On Revolution 123 (1965)Google Scholar; Mooney, Christopher F., Religion and the American Dream 44 (1977)Google Scholar.

8. The astute collection of essays by Will, George, Soulcraft, The Pursuit of Happiness and Other Sobering Thoughts (1979)Google Scholar, would dispute this understanding of public happiness. Will would agree much more with Alexander Hamilton than with Madison that true public interest can be realized only through the decisions of a disinterested elite who alone can define, achieve and protect what is valuable in life and history, and who know antecedently to any public discussion what is genuinely important and excellent and what is not.

9. Hart, H.L.A., The Concept of Law 48 (1961)Google Scholar.

10. Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978).

11. Duncan MacRae, Jr., discusses professions as sources of public values in Macrae, D. Jr., The Social Function of Social Science 25–28 (1976)Google Scholar.

12. Studies cited by Cressey, Donald R., White Collar Subversives, The Center Magazine, 11-Dec. 1978, at 46–47 Google Scholar.

13. See Hazard, Geoffrey C. Jr., Ethics in the Practice of Law XII–XIII (1978)Google Scholar.

14. Id. at XIV.

15. Hazard, Geoffrey C. Jr., Capitalist Ethics, Yale Alumni Magazine, 04 1978, at 50–51 Google Scholar.

16. Time Magazine, 06 19, 1978, at 33 Google Scholar.

17. See the perceptive treatment of Solzhenitsyn's speech by Garvey, John, In Defense of Solzhenitsyn, Commonweal, 09 20, 1978 Google Scholar.

18. Boorstin, Daniel J., Time Magazine, 06 19, 1978, at 21 Google Scholar.

19. Garvey, supra, pursues this point at some length.

20. See Burns, J. M. Presidential Government: The Crucible of Leadership (1966)Google Scholar.

21. See Cuddihy, John Murray, No Offense: Civil Religion and Protestant Taste (1978)Google Scholar.

22. Whitehead, A. N., Science and the Modern World 196–197 (1925)Google Scholar.

23. See Churchill, L. R., The Professionalization of Ethics, 60 Soundings 41–44 (1977)Google Scholar.

24. For more on this cooperation, see Bresnahan, James F. and Kane, John L., Professional Ethics and Competence in Trial Practice, American Bar Association Journal, 04 1976, at 989–991 Google Scholar.

25. Freedman, Monroe H., Lawyers' Ethics in an Adversary System (1975)Google Scholar.

26. Some of these underlying assumptions of the adversary system are explored in Price, D., Law and Liberalism: The Adversary System in Context, 60 Soundings 72–87 (1977)Google Scholar.