Moral Foundation of Law
As regards the relationship between law and morality, or law and (ethical) values, two dimensions are essential. Moral principles are immanent to the foundation of law, and morals, as well as values, are bound to legal argumentation, being a part of the procedure of justification.
This is exactly the idea defended by Aleksander Peczenik, who, for this purpose, introduced the notion of deep justification of law (Peczenik 1989, 158). Peczenik emphasises, as does H.L.A.Hart, that law has to be in harmony with certain minimum moral requirements.This idea is close to what Aristotle presented. In the Nicomachean Ethics, Aristotle emphasises that the just is lawful and fair, unjust is unlawful and thus unfair too. However, Aristotle later adds that the unfair and the unlawful are not the same thing. Everything that is unfair is unlawful, but everything unlawful is not unfair. Obviously, Aristotle's thought relates to his specific conception of the relationship between law and justice.
Peczenik defends a non-positivistic theory of law, according to which there is a necessary connection between the legality and moral correctness. As we have seen before, the same thesis has also been defended by Robert Alexy. He keeps the observer's and participant's points of view separate - that is, the external and internal perspective. As far as an observer is concerned, the positivistic separation thesis is perfectly correct. From the participant’s perspective, only the connection thesis is the right one, and this is decisive as regards the existence of the legal system. As Alexy points out, a legal system without participants is not conceivable. Taking this seriously, the extreme injust thesis enters the centre. Robert Alexy formulates it, following Gustaf Radbruch’s famous formula, as follows: Extreme injustice is not law (Alexy 2002, 3). The extreme injustice thesis is intertwined with the dual nature of law.
Law is both real and ideal, and, what is important, both are necessary elements of law. The ideal component concerns, as was mentioned earlier, the claim of correctness, which, in turn, presupposes the theory of rational discourse. The real side concerns the legally regulated procedures, which guarantee the achievement of decisions and provide for their enforcement (Alexy 2010, 168).Does this mean a softened version of natural law? Yes and no. The extreme injustice thesis is related to natural law in the sense that the immoral law, by its foundations, cannot be law at all. In this regard, Radbruch’s formula is close to that introduced by St.Thomas: dictum lex iniusta non lex est. As far as I see, the difference lies in the term “extreme”. According to St. Thomas, law and morals are connected to each other not only in extreme but in all cases. Hence, St. Thomas’ theory presents natural law in a much broader sense than the extreme injust thesis (O’Connor 1969, 14; Tranoy 1964, 98; Lagerspetz 1995, 106).
The extreme injustice thesis as such does not deal with the material content of injustice. It is a conceptual precondition of law being law, and it is, therefore, on a meta-level compared to the so-called minimum content of natural law introduced by H.L.A.Hart (Hart 1961). This Hartian criterion for law consists of a list of prima facie principles (or reasons) that are not only widely accepted by people at different times and in different parts of the world but are also necessary preconditions of (valid) law. Hart’s notion of minimum content is very much discussed in jurisprudence (Lucas 1966; Rawls, 1973; Mc Pherson 1970; Lagerspetz 1995, 135; Sartorius 1971, 131). In this context, there is no need to take part in this special discussion but just lay the focus on some main features of Hart’s view. Hart has mapped out some necessary criteria as regards law and morals. The most important are the following (Hart 1961, 190):
(1) Human vulnerability: Humans are vulnerable and exposed to damage and harm caused by others,
(2) Approximate equality: Humans are approximately equivalent in their mental abilities, even though there may be some differences between individuals and groups,
(3) Limited altruism: Humans feel some degree of worry and interest toward the needs of others, for which reason, extreme selfishness is not one of the human qualities,
(4) Limited resources: Humans have only limited resources and everyone must still be able to satisfy their basic needs in accordance with their biological requirements, and
(5) Limited human understanding and strength of will.
Sir David Ross, in his turn, gave a list of seven prima facie obligations, which he did not see as all-inclusive: fidelity, reparation, gratitude, non-maleficence, justice, beneficence and self-improvement.
They can either be reinterpreted in Hartian terms or they can be reduced to them (Ross 1930, 38).The system of valid legal norms is not a (deductive) consequence of those facts. Hart respects the Humean guillotine. Instead, the facts provide the grounds for a set of rules that maintain life and keep the community together. As Neil MacCormick thought, the criteria listed above are underpinning reasons that combine law and morals together. In this respect, Hart's model is one application of the form of life argument. “The minimum content of natural law” is an expression referring to basic elements of our form of life without which the community would not stay together. For this purpose, Hart provides a technical norm: If men have to live together and accept a reasonable degree of community, they must consider their own weaknesses and those of others.
As D. J. O’Connor points out, Hart's moral theory is uncontested, but in terms of the discussion on morals, it has been bought at a certain price. The main motivation of morality has been removed. Even with the use of Hart's minimum requirements, there is no way of drawing any normative instruction on how man should act in an individual case requiring a certain moral decision. Thus, we are close to the problem of prima facie and “all things considered” arguments. Minimum natural law is inevitably a collection of general principles, which have to be given a context-bound interpretation. The fact that people feel some sense of worry for others, or that they have altruistic qualities in the first place (even though not everyone does), supports a general norm obligating loyalty and solidarity, or related norms. Still, a norm like this is only a prima facie argument, and by its nature too general in order to provide unequivocal support for an individual moral judgements (O'Connor 1969, 16).
Following the same lines as H.L.A. Hart, Neil MacCormick listed three values (ethical norms) connected to law since the Antiquity:
Live honestly
Harm nobody
Treat all persons with the respect due to them (MacCormick 2008, 60).
This list is, in a nutshell, the core of just law. The principle often referred to by Ronald Dworkin can be added to the list with good grounds: No one shall be permitted to benefit from his own wrong. The demand for honesty forbids people betraying each other and breaking their promises, and advises them toward justness and acts performed in good faith. The prohibition of harming others naturally covers the physical integrity of other people, but also goes much further in securing human dignity. The third demand realises the Roman epithet suum cuique tribuere - i.e., to give each his own.
As examples of lacking the moral foundations of law, Peczenik refers to the “legal orders” by Adolf Hitler, Josef Stalin and Pol Pot, and maintains they were not law in the full sense of the term since they were incoherent with the basic moral principles woven into the structure of law (Peczenik 1989, 58). Law requires a deep moral justification. Let us look at Pol Pot's system. Even if the people of Cambodia had (de facto) held the command of Pol Pot as a genuine dispensation of justice, it could not legitimate the normative system as the system of law. The Cambodian system would have still been extremely injust. Therefore, the extreme injustice thesis is not only contingent but a necessary element of the genuine valid law. It separates the (valid) law from the non-law. The extreme injustice is never law because injustice cannot be coherent, all things considered, with the minimum content of morality.