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Laws, to some degree, encode what society finds acceptable and moral(?).

Personal ethical values however often conflict with each other - take as example the topic of abortion in the US, and the topic of blasphemy in certain countries. Encoding these into law often conflicts with other valued liberties - freedom of religion, freedom of speech, and so on. These freedoms are of course also values.

It seems then that our ethical values (which include freedom) conflict with each other, so maybe it is not our ethical values after all that should be encoded.

But if it's NOT the ethical values we should encode in law, then what is it?

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    It is some of our moral values, the least common denominator that most accept, modified and augmented by pragmatic motives that facilitate social and economic relationships and enforcement, see SEP, The Limits of Law.
    – Conifold
    Aug 11, 2022 at 8:06
  • Seems you are confusing ethics with morals. Morals need to be universal rules every where on Earth. This means all people everywhere on Earth ought to follow a moral law. Ethics on the other hand is based on culture, religion, opinions, etc. If morals are not universal to you then why do you need the word in the language? You can simply get rid of the term and if someone mentions morals tell them that the term is meaningless if morals are not for all people everywhere on Earth. There are no personal morals!!! In psychology people say things like that. Ethics for the most part is distinct
    – Logikal
    Aug 11, 2022 at 11:54
  • @Logikal It matters little whether or not I believe my moral values should be universal. What is important is that people don't agree what moral values are the true ones. That is the conflict: "My" moral values are right and universal, but "you" don't agree with them being right, and instead have other sets of values. What I think is good and right might not be the same as what my neighbour thinks is good and right, yet we have to live under the same laws.
    – kutschkem
    Aug 11, 2022 at 12:19
  • You are confusing psychology with philosophy. By DEFINITION morals must be universal and applicable to all people NOT JUST SOME. BY DEFINITION there cannot be subjective morals. You are confusing ETHICS with MORALITY. I did not ask whether you or other people agree or consent to what I have stated. Morals are absolute. There is no difference of views. You are using incorrect terminology. Again what sense does it make to have MORALS if they were subjective and not absolutes? You might as well eliminate the word moral. Then we have people just doing stuff simply because they can & are free.
    – Logikal
    Aug 11, 2022 at 12:57
  • @Logikal I exchanged "morals" with "ethical values". It sure seems like if "morals" only applies to universally accepted ethical values, then that is very restrictive and I have my doubts the set of values that includes is very big.
    – kutschkem
    Aug 11, 2022 at 13:07

3 Answers 3

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In order to answer the question from a liberal point of view: Society encodes the limits of everybodies liberty in law -- measured by everybody else's liberty. As Isaiah Berlin (1909-1997) put it in "Two concepts of liberty" [1958]:

"Liberty in the negative sense involves an answer to the question: 'What is the 
area within which the subject—a person or group of persons—is or should be left 
to do or be what he is able to do or be, without interference by other persons?'" 

The justification goes back to John Locke (1632-1704): There is no society (but war) if society does not set up these laws and has them enforced.

Immanuel Kant (1724-1804) gave that same idea a more intellectual spin in his "Kritik der praktischen Vernunft" [1788]:

"Act only according to that maxim whereby you can at the same time will that it 
should become a universal law."

There is this beautiful clarity in liberalism: Let's have exactly the laws necessary in order to shield everybody from everyone else's infringement. These are the necessary laws in order to live together, altogether, and not be at war. ---It is a steep task for any rival ideology to match this rational lucidity. Morals are, at least at the roots of the liberal justification, highly irrelevant.

Three examples:

  • Does a blasphemic individual interfere with anybody's action? No, so blasphemy cannot be prohibited by law.
  • Does abortion interfere with anybody's action? It depends (among a few other things) on when the foetus starts to count. So, not a clear cut case. Needs more philosophy -- morals might enter.
  • Does unprovokedly hurting someone with a knife interfere with his action? Absolutely, so this kind of action has to be banned.
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  • So because some one has an idea and another person disagrees that makes it philosophy? I am not clear how you define Philosophy. It seems like you are using a loose slang definition typical in psychology and other related circles. Morals are not determined by how many people agree with the rules. This is not about voting some act is permissible and now it’s moral once we tally the positive votes. That is a misconception about what morals are. People confuse authority with morals often and this sounds like another candidate of confusing authority with what ought to be or not ought to be.
    – Logikal
    Aug 11, 2022 at 14:17
  • Regardless of where I personally stand in this question, it seems to me this answer best comes to a rational conclusion, so I'll accept it. The issue I still have, though, is: What is infringement that needs to be protected against? You say blasphemy does not interfere with anybody's actions. Well but others might say it interferes with the public peace. So I think there is still lots of potential conflict in this definition.
    – kutschkem
    Jan 11, 2023 at 10:07
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All societies punish people for stepping outside the bounds of what is acceptable for that society. Without written laws, these punishments can be capricious and vicious.

For example, in India recently, a man committed suicide. According to his mother, he was driven to it because his romantic advances were rejected by a married woman. The mother got a mob of her family and friends together, went and kidnapped the woman and dragged her back to the house where she was raped by several men in punishment. About ten years ago, a child visited a shop and was killed in an accident involving some machinery. The family of the child mobbed the shop and killed three men in retaliation. I don't mean to pick on India, that's just the country where I sometimes read their local news. Similar things happen all the time in the US, though generally at a smaller scale because if a riot gets too big in the US, the police are usually called in to stop it (or it was until 2020, when we saw numerous cases where the Leftist mayor was on the side of the leftist rioters and had the police stand down and let the city burn).

In the absence of written law, police, and courts, riots is how a large society regulates itself. The purpose of the law is to control that tendency of large societies, to give people a feeling that the carrying out of justice is the responsibility of someone else, so they should step back and let officialdom handle it in the official way. The purpose is also to give people a sense of confidence that they know what they can do and what they can't, and what sort of punishments they will face for defying the public will as expressed in the law.

Given that this is the pragmatic purpose of the law, the pragmatic answer is that the laws should reflect the mores and customs of society, and that is pretty much what they do in most societies. Therefore, in Muslim countries, the laws reflect Muslim beliefs, in Christian societies the laws tend to reflect Christian beliefs, and in post-Christian societies, the laws tend to reflect post-Christian beliefs.

So there are two issues: what about multi-cultural societies where there is no widespread consensus on how society ought to be regulated? And are there society-independent moral principles that all laws ought to bow to?

Much of Western Europe and the Anglosphere (pretty much England, the US, Canada, Australia and New Zealand) are now multi-cultural societies because of the presence of so many Christians and post-Christians with often conflicting views. This was generally handled by trying to restrict the laws to just what people could agree on, and allowing liberty in the remainder. For example, homosexuality was made legal although most Christians considered it corrosive of social well-being, and Christians were allowed to teach their kids that homosexuality is wrong although most post-Christians considered that a source of potential violence against homosexuals.

However, this was always a shaky consensus, and whichever side had the power tended to push things in their preferred direction. When Christians had the upper hand, homosexuality was illegal. Now that post-Christians have the upper hand, they are pushing favorable discussions of homosexuality into public grade schools and kindergartens in order to subvert the wishes of the parents. Naturally, this is leading to conflict.

So the pragmatic answer to the question is, in societies that are largely homogeneous, there is little reason for laws to cater to minorities. In societies that are heterogenous there is an argument to be made that laws should be a sort of intersection between the basic moralities of the different groups, allowing liberty in all other cases, but this solution is not stable and conflicts will always arise as the power dynamics in society shift.

The moral answer only applies if you believe in objective morals. And if you believe in objective morals, the answer to any individual question will depend on what you think the objective morals are. If you believe that a fetus is just an organ and that no one except the mother has any interest in the well being of that organ, then the moral position is for the law to make abortion legal. If you believe that a fetus is a human being, and that murder of a human being is wrong, then you believe that the moral position is to make abortion illegal.

So the answer to the objective moral question is that yes, morals should be encoded into laws, but that answer doesn't answer any specific question unless everyone agrees on what the morals are.

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  • To the down-voter: downvoting an answer without comment seems a bit pointless given there are many people who may not understand the reasons for your downvote. If you are right, you rob these people of the opportunity to understand why. If you are wrong, you rob people, including the answer's author, to try to correct you and rob yourself of the opportunity to be corrected. If you are partially right and partially wrong, an opportunity for clarification and greater understanding on both sides goes wasted. Aug 11, 2022 at 14:33
  • @jd, I think he's talking to you. Aug 11, 2022 at 19:41
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There is not one society. People are different. They have different morals. Take Christians vs. atheist. While many Christians defend any evilness by finding a suitable bible quote (quite often made up) and are utterly without any morality, I as an atheist have the morality to try to make the world a nicer place for people around me.

Laws have to apply to anyone, no matter which part of society they belong to, and no matter what their morality is. So laws CANNOT be based on morals alone.

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  • Sure, that's basically what the question already says. I wonder however what values, if not morals, there are that should be encoded then?! Or more generally what is the basis for deciding what should be law?
    – kutschkem
    Aug 11, 2022 at 9:35
  • "Laws have to apply to anybody [...] no matter what their morality is". False. People travel outside of a state where abortion is forbidden to get an abortion and come back, without punishment. Morals are subjective and so is law.
    – RodolfoAP
    Dec 24, 2022 at 5:18

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