Law and Morality: Separation and Connection

Radical Separation of Law and Morality

Radical separation is a thesis opposed to the previous one. It states that we cannot speak of a connection between law and morality because no such connection exists. This position is based on the idea that the criteria used to classify a behavior as moral or immoral are independent of the criteria used to classify it as legal or illegal.

An example of this position is found in Kelsen's work. His argument for this separation is based on two philosophical theses:

• Moral Relativism: Kelsen believes that all moral values are relative.
• Conception of Rationality and Legal Science: Kelsen is committed to developing a pure theory of law.

By moral relativism, Kelsen means that when we describe or evaluate something as legal, moral, or immoral, we are putting that order in connection with one of the many moral systems. What matters for Kelsen when analyzing behavior from the standpoint of law is whether such behavior is in accordance with the law. From the standpoint of morality, what matters is if the rule is valid or not. The criterion that matters when determining the right is precisely the criterion of validity.

Difference and Connection Between Law and Morality

This model essentially identifies itself with the model of Western modernity of the Enlightenment. It posits the existence of important differences between law and morality but considers that these differences are no obstacle to recognizing connections between them.

Both are normative orders of behavior. These regulatory systems can be seen as complementary systems by their nature, scope, and purpose, but with links at certain times.

The historical genesis of this position (connection), as Professor Eusebio Fernandez suggests, emerges as an attempt to solve the problem of religious wars. At that time, wars and attempts to restore and reclaim the need for tolerance began to appear.

The works of Thomasius and Kant also exemplify a clear distinction between law and morality. We must understand the analysis of these authors within the framework in which it is done. At the bottom of the motivation when postulating the fundamental separation, what they wanted was to ensure an autonomous private sphere free from state interference. They proposed that the moral sphere is a sphere in which the state cannot intervene, which assumes a separation between law and morality.

Besides introducing what becomes the illustrated moral, they are going to consider society as a moral or rural society. We will find a tendency to establish clear boundaries between morality and law, but also suggesting that there is a common element between them, having to do with the need to regulate a stable social life. In that sense, law and morality have a common area. From this position, it arises that the specific right, to some extent, must have or refer to a minimum ethical content.

In the history of law, we can find connections between law and morality, between religious, moral, and legal areas. Many times, legal rules are partly a product of all this. However, we also find that the content of legal rules can be against morality. Thus, we find that the law allows behavior against moral and religious beliefs.