Morality is often viewed objectively in many societies, both present and past. Moral Objectivity means that moral guidelines affect someone no matter where they are, what era they are from, or their personal beliefs about those guidelines. For lack of a better term, I will refer to objective moral guidelines as the “Rule of Morality”. The Rule of Law and Rule of Morality are similar, in that they exist with supremacy above any individual authority and everyone is equally beholden to these Rules.
The Rule of Law, in the effort of remaining equal-to-all, is inherently impartial, which means that it generally disregards subjective issues of emotional and cultural importance. These emotional issues are often more prominent in the Rule of Morality, which often holds interpersonal relationships and emotions at a higher regard. Strong emotions, such as love and joy, or acts of interpersonal integrity, such as forgiveness and altruism, have a larger role to play in moral decision-making than in litigation.
Many times contradictions arise when the Rule of Law comes in conflict with the Rule of Morality. For instance, there was a time in the United States’ past when slavery was legal and considered an important economic tool. The term “necessary evil” is used a lot when talking about the use of slaves in America’s society before the Emancipation Proclamation, indicating that American’s knew the practice of slavery was immoral, but continued to use slaves within the boundaries of the law. The legal use of slaves despite moral apprehension suggests a distinct boundary between the Rule of Law and the Rule of Morality.
On Wednesday, we saw another contradiction between the Rules of Law and Morality in The Story of Qiu Ju. Qiu Ju sought a moral end to the wrongdoings against her husband by their village chief. The regional governments and legislature could not offer her what she sought because what she sought was a matter of moral interest and not of legal interest. This distinction of interests is another important distinction between the Rule of Law and the Rule of Morality.
There are many cases of distinction between the two Rules, but there are also many efforts to bridge these gaps. The United Nations has a Universal Declaration of Human Rights (http://www.un.org/en/documents/udhr/), the purpose of which, in-part, is to help build more ethically-aware legal systems in countries around the world. Dispute resolution also has an important role to play in bridging the gap between the Rule of Law and the Rule of Morality. Dispute resolution falls towards the center of the Law/Morality Venn diagram, as mediation acts with the backing of law, but with a closer focus than litigation on counseling and relations between the parties. While mediation does not always end with an agreement that would be considered moral by everyone involved, the proceedings are more concerned with the emotional and cultural context of the parties than litigation.
This post became longer than I intended, so thank you for sticking with me until then end, if you did. I look forward to reading your thoughts on this!
One reason why dispute resolution is helpful in the "rule of law" context is that the "rule of morality" is not really a rule upon which people agree or can be held to by an outside authority. We can come up with moral principles upon which we all agree, and as it turns out those are often enshrined in the law as well (e.g., it's wrong to kill someone). And we can also come up with moral principles upon which we don't agree, and the law may or may not weigh in (examples of weighing in: right to choose and death penalty; examples of not weighing in: no-fault divorce). The exercise we do on Tuesday will help us explore an example.
ReplyDeleteAnyway, the challenge for dispute resolution is figuring out how to engage participants in meaningful dialogue that allows them to express their views AND help them fashion an agreement, as appropriate. This may seem impossible in the context of morals -- how can people compromise their morals? Yet sometimes coming up with a compromise supports the participants' larger goals around social justice, healing relationships, and other moral considerations that exist in addition to the ones that are in conflict.
I'm particularly interested interested in these two Rules because the belief system behind the two are what cause a lot of conflict in policy making. (I talk about this next example a lot but it's only because it's what got me interested in Conflict Resolution), but there's an interesting conflict that exists in policy making. For example, there's a policy about overfishing in the Northwest that directly conflicts with the fishing ritual of some Native American tribes. The policy follows the Rule of Law, while the Native Americans sympathize with the Rule of Morality. I think that effective policies should somehow combine and appease both Rules. But that's really controversial because it causes a lot of groups to be "exceptions" when the Rule of Law should be fixed and universal. However, I think it's important to include the Rule of Morality in the aforementioned example because fishing rituals play a huge role in their identity and are culturally significant to the tribes. America is supposed to be a free nation and it is a violation of civil rights to be discriminatory. Thus, the policies set forth should follow and not discriminate against a certain group. But where do we draw the line in enforcing laws and regulations but also empathizing with culture and identity?
ReplyDeleteI completely agree with Natalie's ending question. Where do we draw that line? I don't believe there is an answer to that. Anyone could pop up and say this or that is part of their culture or identity, whether this person is part of a larger culture or a small one. So if we end up with a ton of small cultures all saying that this or that should be legal for the, even if it's illegal for the larger culture, then we could end up with exemptions to every rule. The exception could become the rule. Slippey slope style. It really is an argument for the rule or morality vs. the rule of law. We don't want to take someone's culture and rituals away just because more people don't follow those practices, than the people who do, but we don't want to allow every law to be overruled by "culture". Enter the Philosophy of Law, which questions the source of law, the application of law, and the end result of law. Why should any law ever be law? How will the law be carried out (will there be exceptions for native culture)? Who gets the make up the law? I think law is ever changing depending on the current social/moral backdrop, and the current social/moral backdrop is influenced by the law. Morals aren't set in stone and neither is law.
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