Posted by: Elmer Brabante | February 25, 2011

Moral Law


(originally posted on 1 February 2008, at Elmer at Random)
I. Definition and Nature of Moral Law


Moral law may be defined as that kind of nonjural law which sets the standards of good and commendable conduct. It is that rule to which moral agents ought to conform all their voluntary actions, and is enforced by sanctions equal to the value of the precept. It is the rule for the government of free and intelligent action, as opposed to necessary and unintelligent action. It is the law of liberty, as opposed to the law of necessity–of motive and free choice, as opposed to force of every kind. Moral law is primarily a rule for the direction of the action of free will, and strictly of free will only. But secondarily, and less strictly, it is the rule for the regulation of all those actions and states of mind and body that follow the free actions of will by a law of necessity. Thus, moral law controls involuntary mental states and outward action, only by securing conformity of the actions of free will to its precept.

Moral law may be said to resemble divine and natural law. Divine law is the law of the religious faith. Moral law, while also concerned with the precepts of good and right conduct as the basis of its norms, is not necessarily concerned with the law of religious faith. For a person may not be religious and yet still be ethical. Moral and natural laws apply equally to all persons everywhere and yet they are not identical: moral law is ethical in foundation; natural law is strictly metaphysical. Physical law is the totality of uniformities and orders of sequence which combine together to govern physical phenomena. Moral law differs from jural law insofar as enforcement is concerned. While jural law is enforceable in the courts, moral law is enforced only by indefinite authority for there are no courts in which it is administered as such.


II. Essential Attributes of Moral Law

Subjectivity. It is an idea of reason, developed in the mind of the subject; an idea, or conception, of that state of will, or course of action, which is obligatory upon a moral agent. No one can be a moral agent, or the subject of moral law, unless he has this idea developed; for this idea is identical with the law. It is the law developed, or revealed within himself. Thus he becomes “a law to himself,” his own reason affirming his obligation to conform to this idea, or law.

Objectivity. Moral law may be regarded as a rule of duty, prescribed by the supreme Lawgiver, and external to self. If man has been given an objective final end by the Creator, he will be under the obligation to strive for it. And when he looks to that objective, an order which has to be followed will become visible to him: the moral order. This moral order is shown to us through the moral law.
Liberty, as opposed to Necessity. Kant formulated the idea of an autonomous, independent morality. It means an ethics which is not only free from any considerations of happiness and profit, but also free from any demands imposed upon man by God. Moral goodness is the value in itself, and it merits to be realized for the sake of its own dignity, not for the sake of any external authority who wills it, be it even the authority of God.
Fitness. Its precept must prescribe and require only those actions of the will which are suitable to the nature and relations of moral beings. Here, the social order must constantly yield to the good welfare of the person. It strives for the fulfillment of the basic needs of food, clothing, housing, and a life in peace and liberty. This is confirmed by the conventions on human rights.
Universality. The conditions and circumstances being the same, it requires, and must require, of all moral agents, the same things, in whatever world they may be found.
Impartiality. Moral law is no respecter of persons–knows no privileged classes. It demands one thing of all, without regard to anything, except the fact that they are moral agents. By this it is not intended, that the same course of outward conduct is required of all; but the same state of heart in all–that all shall have one ultimate intention–that all shall consecrate themselves to one end–that all shall entirely conform, in heart and life, to their nature and relations.
Justice. That which is unjust cannot be law. Justice, as an attribute of moral law, must respect both the precept and the sanction. Sanctions belong to the very essence and nature of moral law. A law without sanctions is no law; it is only counsel, or advice. Sanctions are the motives which the law presents, to secure obedience to the precept. Consequently, they should always be graduated by the importance of the precept; and that is not properly law which does not promise, expressly or by implication, a reward proportionate to the merit of obedience, and threaten punishment equal to the guilt of disobedience. Law cannot be unjust, either in precept or sanction: and it should always be remembered, that what is unjust, is not law, cannot be law. It is contrary to the true definition of law. Moral law is a rule of action, founded in the nature and relations of moral beings, sustained by sanctions equal to the merit of obedience, and the guilt of disobedience.
Practicability. The moral demand must be possible to the subject. A law must be physically and morally possible. It is physically impossible if it commands actions that are completely beyond the forces and means of a person. Thus, a lunatic cannot be required to vote, and a dumb person cannot be obliged to sing the national anthem. If however only a part of a law is impossible, then the possible part must be fulfilled, as in the case of taxation.
Independence. It is founded in the self-existent nature of God, independent from the will of any being. It is an eternal and necessary idea of the divine reason and the self-existent rule of the divine conduct.
Immutability. Moral law can never change, or be changed. It always requires of every moral agent a state of heart, and course of conduct, precisely suited to his nature and relations. Moral law is not a statute, an enactment, that has its origin or its foundation in the will of any being. It is the law of nature, the law which the nature or constitution of every moral agent imposes on himself, and which God imposes upon us because it is entirely suited to our nature and relations, and is therefore naturally obligatory upon us. It is the unalterable demand of the reason, that the whole being, whatever there is of it at any time, shall be entirely consecrated to the highest good of universal being.
Unity. Moral law proposes but one ultimate end of pursuit: love or benevolence. It is the idea of perfect, universal, and constant consecration of the whole being, to the highest good of being.
Equity. Moral law demands that the interest and well-being of every member of the universal family shall be regarded by each according to its relative or comparative value, and that in no case shall it be sacrificed or wholly neglected, unless it be forfeited by crime. Laws must respect the demands of distributive justice. It must distribute burdens and privileges equally and according to the capacities of the subjects. This is particularly true for the laws of taxation.
Exclusiveness. That is, moral law is the only possible rule of moral obligation. A distinction is usually made between moral, ceremonial, civil, and positive laws. This distinction is in some respects convenient, but is liable to mislead and to create an impression that something can be obligatory, in other words can be law, that has not been the attributes of moral law. Every other rule is absolutely excluded by the very nature of moral law. Surely there can be no law that is or can be obligatory upon moral agents but one suited to, and founded in their nature, relations, and circumstances. This is the law of right.


III. Moral Law Discussed by Justice Vitug through His Dissenting Opinion in ESTRADA VS. ESCRITOR, AM O-02-1651; August 4, 2003

Philippine laws are veritable repositories of moral laws that sanction immoral conduct which, at first glance, could appear to be private and to cause no harm to larger society but nevertheless dealt with. Examples of such instances include general references to “good moral character” as a qualification and as a condition for remaining in public office, and sex between a man and a prostitute, though consensual and private, and with no injured third party, remains illegal in this country. Until just about a month ago, the United States Supreme Court has outlawed acts of sodomy or consensual sexual relations between two consenting males, even if done in the privacy of the bedroom. Are moral laws such as these justified? Do they not unduly impinge on one’s own freedom of belief?

Law and Morals

Law and morals, albeit closely connected, may proceed along different planes. Law is primarily directed at man’s behavior while morals are directed at his animus or state of mind. While the law often makes reference to one’s state of mind, it does not, however, punish the existence of immoral intent without more. It requires only that at the risk of punitive sanctions for disobedience, one must refrain from the temptation to act in accordance with such intent to the detriment of another. The ethical principle is generally cast, affirmatively or negatively, in the form of a direct command, whereas the legal rule peaks, generally, of the consequences that attend the violation of a duty. As to purpose, law and morals further diverge. Morals strive for individual perfection, while law aim at harmony in the community.

Not all societal mores are codified into laws. We have yet to see a law outlawing vanity, pride, gluttony or sloth. Nor are all laws necessarily moral. Slavery is outlawed but not so in our distant past. Laws allowing racial segregation prejudicial to blacks or denying the right to suffrage to women may seem to be relics of a long gone uncivilized society if one forgets that the abolition of these “immoral laws” is but less than a century ago.

The observation brings to the fore some characteristics of morals, which make it unwise to insist that it be, at all times, co-extensive with law — First, morals are not entirely error free. To insist that laws should always embody the prevailing morality without questioning whether the morals sought to be upheld are in themselves right or wrong would be a dangerous proposition. Second, morals continuously change over time, often too slowly to be immediately discerned. To ensure that laws keep pace with the ever-changing moralities would be quite a perplexed, if not a futile, an endeavor. Third, standards of morality vary. Modern society is essentially pluralist. People of different faiths owe common allegiance to the State. Different moral judgments flow from varying religious premises that, obviously, the law cannot all accommodate.

The Common Origin of Morality and the Law

That law and morals are closely intertwined is a traditionally held belief. One school of thought even go as far as calling a law without morality as not law at all; but naked power, and that human beings not only have a legal, but also the moral obligation to obey the law. It suggests that where law clashes with morality, it can impose no obligation, moral or otherwise, upon anyone to obey it; one may actually be morally bound to disobey such law. The ancient role held by the Christian Church as being the ruler of both spiritual and temporal affairs of men has laid that groundwork for the impression. The Judaic-Christian God is thought to be the source of both law and morality and man has come to know of His law and morals through the human soul, the human conscience and the human mind. With the rise of the secular state in the 16th and 17th centuries and the corresponding decline in the authority of the Church, legal thinkers such as Pufendorf, Vattel, and Burlamaqui would establish legal systems based on scientific principles deduced from the nature of men and things, that would guide the behavior of the metaphysical man in directions that promote political order and assure a measure of protected individual dignity. Such treatises on natural law have offered model political systems based on scientific principles logically deduced from the nature of man and the nature of things, serving to give a kind of scientific legitimacy to the newly formed nation states emerging in the 17th and 18th centuries under human sovereigns. Not surprisingly, sovereigns of that era promulgated natural law codes consisting of religious commandments, quasi-human moral values and civic virtues all couched in the language of legal proscriptions proclaimed and enforced by secular states. Human conduct condemned by God’s law and forbidden by the sovereign’s law would be said to be morally, as well as legally, reprehensible or malum in se.

As the law of the state became inexorably intertwined with higher moral law, based on both divine law and the law of nature, so, also, human law was seen to carry the moral authority of both. Jurisprudential ramifications could hardly be contained.

In the last 19th century, legal reformers have consciously inculcated moral concepts such as fault, intent, and extenuating circumstances into both civil and criminal law. Law and morals have been drawn closer together so that legal accountability, more accurately than not, would likewise reflect moral culpability. Vestiges of these reforms are still enshrined in our laws. In the Revised Penal Code, for example, mitigating, extenuating or aggravating circumstances that may either decrease or increase the penalties to be meted on an offender are all based on the moral attributes of the crime and the criminal.

The academic polemic

With the emergence of the secular state, the greatest contribution of liberals to the issue is not the discovery of a pre-existing, necessary distinction between law and morality; rather, it is their attempt at separation, the building of the wall to separate law from morality, whose coincidence is sublimely monstrous. Liberals attempt to divorce law from morality by characteristically adhering to some form of “harm” principle: public authority may justly use law as coercive factor only to prevent harm to non-consenting third parties. More specifically, the main distinguishing feature of liberalism is its opposition to morals law or the legal interference up to and including (sometimes) prohibition of putatively “victimless” immoralities such as sodomy, prostitution, fornication, recreational drug use, suicide and euthanasia. Liberals argue that moral laws are, in principle, unjust.

This surge of liberalism has set the trend in the courts to adopt a neutral and disinterested stand in cases involving moral issues, often at the expense of obscuring the values which society seeks to enforce through its moral laws. This matter brings to mind the case of Grisworld vs. Connecticut where the US Supreme Court, despite a presupposition that contraception is always wrong, nevertheless, has invalidated that state’s anti-contraceptive law. In so deciding, the US Supreme Court has not met head-on the issue of whether the use of contraception is immoral but instead has struck down the law as being invalid on the ground of marital privacy. Should Grisworld then be taken to sanction a moral right to do a moral wrong?

Into the Twentieth Century: the Devlin-Hart Debate

On September 1957 in England, the Committee on Homosexual Offenses and Prostitution chaired by Sir John Wolfenden has recommended in its report to the British Parliament that homosexual behavior between two consenting adults in private should no longer be a criminal offense. The thesis holds that it is not the duty of the law to concern itself with immorality as such. The report has proposed to resolve questions of the legitimacy of legally enforcing moral obligations by distinguishing immoralities that implicate public interests from immoralities that are merely private. The Wolfenden Report would spark an academic debate that persists to this day.

Patrick Devlin, then a High Court judge, has argued at the British Academy’s 1959 Maccabaean Lecture that it would be a mistake to posit a private sphere of immorality into which the law ought not to venture. Devlin’s legal moralism hinges on the theory that moral offenses insofar as they affect common good are fit subjects for legislation. Whether behavior, private or public may affect common good in such a manner that endanger the fabric of society and should thus be suppressed by law is a question of fact, which can be answered only after a full consideration of the conditions prevailing in a given society. To Devlin, morals are not merely a matter of private judgment; society should be in a position to enforce its moral standards as a means of self-preservation, “whatever its morality happens to be.” Devlin would thus become the forerunner of ethical relativism which suggests that there is no “right” and “wrong” in any absolute sense, that right or wrong depend entirely on the culture in which one happens to live. Devlin then would tolerate individual freedom only as far as possible and as long as it is consistent with the integrity of society. Hence, while privacy is respected, it may be forfeited where one person injures another.

H.L.A. Hart refutes Devlin’s suggestion that immorality, even if private, can be likened to treason, against which it is permissible for society to take steps to preserve itself. Hart sees Devlin’s view of people living in a single society as having common moral foundation as overly simplistic. To Hart, societies have always been diverse. With the rise of democracy, society could more accurately be called a collectivity of ideas and attitudes, an assemblage or gathering of people who live together and work together and govern themselves collectively in spite of the great diversities that divide them. Hart places emphasis on the right to privacy and freedom of action which ought to be protected and should be interfered with only when private behavior ceases to be private and becomes a menace to the public or to some part of the public. One may deduce from Hart’s arguments that private consensual moral offenses should not be legally prohibited because of the difficulties in enforcing such laws and the near impossibility of detecting most offenses without an unconscionable invasion of privacy.

Hart criticizes attempts to impose the morality of the majority on a few. Justification for punishment especially when applied to conduct not harmful to others represents a value to be pursued at the cost of human suffering, the bare expression of moral condemnation and treats the infliction of suffering as a uniquely appropriate mode of expression. The idea that we may punish offenders against a moral code not to prevent harm but simply as a means of venting or expressing moral condemnation is uncomfortably close to human sacrifice as a form of religious worship. To Hart, Vox populi does not necessarily translate to Vox Dei. Hart particularly singles out laws aimed at enforcing sexual morality as oppressive — “Laws designed to enforce sexual morality to the extent that they interfere with certain forms of sexual expression and restrict the sexual outlet that may be available, impose an acute form of suffering upon those who are thus deprived of the only outlet available to them.” Such laws and the coercive measures that may be used to enforce them “may create misery of quite a special degree. All restraints then must be justified by strong reasons.” Quoting John Stuart Mill in his essay “On Liberty”, Hart expounds — “The only purpose for which power can rightfully be exercised over any member of a civilized community against his will is to prevent harm to others. His own good, either physical or moral is not a sufficient warrant. He cannot be rightfully compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinion of others, to do so would be wise or right.”

Arriving at an Acceptable Middle Ground

But Hart is not without his critics, among them being Robert P. George. George acknowledges that laws per se cannot make men moral; laws can only succeed in commanding outward conformity to moral rules but cannot compel internal acts of reason. Such an instance would be a law requiring all people to contribute to the charities. While fear of sanctions would force one to make such contribution, the same does not necessarily make him charitable. George, however, contends that laws can be utilized to make men moral by: (1) preventing further self-corruption, (2) preventing bad example (3) helping to preserve the moral ecology and (4) educating people about right and wrong. Thus, to him, moral laws punishing victimless sexual immoralities, for example, proceed from the conviction that the acts are truly wrong and that they damage the characters of the people who perform them, block the path to virtue, and in specific ways offend against the common good. George cites Aristotle who, centuries ago, had long anticipated but criticized and firmly rejected the doctrine of mainstream contemporary liberalism, namely the belief that the law should merely be a guarantor of men’s rights against another — instead of being, as it should be, a rule of life such as will make the members of the polis good and just.

Robert George submits, and I agree, that while morality cannot be legislated, laws can help make men moral by creating a “moral ecology” and profoundly affecting notions in society about what is morally acceptable, forbidden and required. People shape their own lives and often treat others very differently in the light of these notions. The point is, “a good moral ecology benefits people by encouraging and supporting their efforts to be good, a bad moral ecology harms people by offering them opportunities and inducements to do things that are wicked.” To illustrate, the decision of US Supreme Court in Brown vs. Topeka Board of Education in 1954 and of the Civil Rights Act of 1964 has primarily been responsible in changing society’s perception on forced segregation or interracial marriage.

It might then be deduced that moral laws are justified when they (1) seek to preserve the moral value upheld by society and (2) when the morality enforced in a certain case, is true and correct. It is within these standards that the provision against “immorality” in the Administrative Code must be examined to the extent that such standards can apply to the facts and circumstances in the instant case before the Court. As a rule then, moral laws are justified only to the extent that they directly or indirectly serve to protect the interests of the larger society. It is only where their rigid application would serve to obliterate the value which society seeks to uphold, or defeat the purpose for which they are enacted, would a departure be justified.

The Morality of Marriage

Marriage is one area where law and morality closely intersect. The act of respondent Escritor of cohabiting with Quilapio, a married man, can only be called “immoral” in the sense that it defies and transgresses the institution of marriage. Society having a deep interest in the preservation of marriage, adultery is a matter of public, not merely private, concern, that cannot readily be ignored. This deep-seated interest is apparent in our Civil Code so replete with rules as in defining the parties’ legal capacity to marry, in laying down the essential requisites of the union, in regulating the rights and duties of the spouses, even their property relations, and in protecting the rights of children. Marriage has acquired a legal definition as early as the 12th century that has since grown towards a cherished institution with Gregorian Reform of the 11th and 12th centuries.

With the separation of the Church and State, marriage has retained its status as a legally protected viculum because it is perceived to be imbued with societal interest as a foundation of the family and the basic unit of society. While Islamic states recognize polygamous marriages and, in Western countries, divorce is acceptable, in the Philippines, however, absolute monogamy is still the order of the day. Societal interest in monogamous unions is grounded on the belief that the cohesiveness of the family is better protected, and children, prized for their role in the perpetuation of the future of the community, are better reared when spouses remain together. These societal interests are embodied in moral laws geared towards protecting the monogamous nature of Philippine marriages. But I do not endeavor to examine whether Philippine society is correct in viewing monogamy as the better means for the protection of societal interest on the family but I do would focus myself on, given the facts of the case, whether or not societal interest is rightly served.

Thus, I, in conscience, would take exception to the 1975 case of De Dios vs. Alejo. In De Dios, respondents Elias Marfil and Julieta O. Alejo, deputy sheriff and stenographer of the then Court of First Instance of Rizal, respectively, were administratively found guilty of immorality for living together despite Marfil’s prior existing marriage with another woman. Never mind if Marfil exerted valiant efforts to save his marriage by enduring the recriminations, unhappiness and extreme incompatibility he had with his wife. Never mind if notwithstanding his efforts, his wife abandoned him and their four children to live with another man. Never mind if Alejo took on the duties and responsibilities of being the mother to his children, rearing them as though they were her very own long after their natural mother had left them. Never mind if the children had, in fact, regarded her as their very own mother. Never mind if she was a good wife to the man she was living with, fulfilling the wifely duties long after the legal wife had abdicated them. Never mind if in all respects, they had become a family. Did not the Court in adjudging them guilty of immorality and in ordering them to put an end to their relationship, destroy a de facto family? Did not its narrow-minded view of marriage as a contractual transaction and its exacting application of the standards of monogamy, in effect, defeat the very moral purpose for which the law was put into place?

Are we not sacrificing the substance of marriage — that is a union of man and woman in a genuine, loving and respectful relationship and, in effect, the substance of a family, for a mere shell of intricate legality? Lest I be misunderstood, I am not advocating for a departure from the elevated concept marriage as being a legally protected union. I merely express concern that a blanket application of moral laws affecting marriage, without regard to the peculiarities of every case, might defeat the very purpose for which those laws are put into place.

Introduction to Philosophy; Crisolito Pascual. UP Law Center, Quezon City, 2003.
Christian Ethics; Karl Peschke, SVD. Logos Publications, Inc, Manila, 2004.
The Moral Law of God, Charles G. Finney.
Estrada vs. Escritor, AM 0-02-1651; August 4, 2003.


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