Law and Morality: Philosophical Distinctions

Christian Thomasius: Distinguishing Spheres

In modern times, the distinction between law and morality began to be elaborated by Christian Thomasius (1655-1728). He distinguished three spheres of conduct:

• Moral
• Legal
• Social conventions (customs)

He argued the latter are mere rules of conduct and courtesy without direct reflections in the other two spheres.

Defining Morality

The word 'moral' comes from the Latin mores: a set of practices, customs, standards of conduct within a particular social segment. Every nation, in every era, has its own morality – rules of conduct that meet certain functions and have specific goals. Therefore, what was once considered moral may not be so today (like human sacrifice), and what is considered moral by one people may not be for another (such as polygamy). However, while some moral standards change over time and space, others remain constant (like the respect of children for parents). Read more about law and morality in Venosa, Silvio de Salvo. Introduction to the Study of Law: First Lines. São Paulo: Atlas, 2004, pp. 207-216.

Immanuel Kant: Internal vs. External Forum

Immanuel Kant (1724-1804) continued the studies on this differentiation process. He stressed that morality pertains to the intention, the internal forum of the individual – their conscience. Law, Kant stated, concerns the external conduct of individuals after they express their will; it deals with the external forum.

The Theory of the Ethical Minimum

The theory of the ethical minimum was first proposed by the English philosopher Jeremy Bentham and later developed by several authors, including the German jurist Georg Jellinek (early nineteenth century). The relationship between law and morality was conceived using two concentric circles. The legal system would be fully included within the moral field, surrounded by it. This means that law represents only the minimum of morality declared mandatory for society to survive. As Miguel Reale explains, because not everyone spontaneously observes moral obligations, it is essential to enforce some ethical rules with strength so that society does not collapse. The law is not something different from morality; it is a part of it, armed with specific, peculiar guarantees.

Du Pasquier's Theory of Intersecting Circles

The relationship between the two systems (law and morality) could be represented by two intersecting circles.

• Law and morality possess a range of joint competence.
• Simultaneously, each has a particular, independent area.

Hans Kelsen: Separating Law and Morality

For Hans Kelsen, law should be completely separated from morality. He conceived the two systems as independent spheres. For him, the norm is the only essential element of law, whose validity does not depend on moral content but on other rules from a higher hierarchy (represented as two separate circles).