Friday, August 27, 2004

Morality, law, and cynicism

Philosophy, et cetera has a good post on the relationship between law and morality. He notes that there is an obvious connection - "why would we outlaw rape and murder if they weren't wrong?" - and tries to analyse it. Unfortunately, he fails to recognise that there are really two questions here: one about the actual relationship between the law and morality, and one about what that relationship should be. The first is entirely a matter of power and practical politics, to be answered by psychologists, sociologists and historians in the context of a particular society (though a quick and cynical answer is that the law will reflect the morality of the lawmakers). The second is itself a question of morality, to be debated endlessly by ethicists and political theorists.

As for domains, there are great chunks of the law that seem to have very little to do with morality. Food regulations, for example, or those governing weights and measures (or road rules, for that matter). These are practical considerations, not moral ones, and so the law cannot simply be a subset of morality . We outlaw things which are perfectly morally permissible, such as selling bananas by the pound rather than by the kilogram (at least in the EU).

The second approach - viewing the issue through the lens of folk-psychology - explains the actual relationship quite well. I've been thinking similar things when trying to build a political theory from cynicism and game theory - law is a tool for influencing behaviour by changing payoff matrices, based on a power-mediated compromise of the moral values of a society's members - but laid out like that, it simply seems trite and uninformative.