The dependence of morality on law is insisted upon in the closing pages of Aristotle's Nicomachean Ethics, perhaps the most detailed treatise on the moral virtues in antiquity. It is recognized there that law is needed if the moral virtues described in the Ethics are to be nurtured. (The law can contribute as well to the development of the intellectual virtues by promoting the conditions that they require.)
This is true in the United States as well, and not only in how our legally mandated school systems and our criminal laws contribute to the shaping, including the moral training, of citizens. Yet the typical opinions in a contemporary liberal democracy are likely to be (1) that morality cannot be legislated; and (2) that even if morality could be legislated, it should not be––that to do so is somehow improper, even tyrannical, either because there is no morality objective enough to justify legal enforcement or because one's autonomy and individuality would be violated by attempts to legislate morality or perhaps even because one really has no autonomy that can respond to any external directive.
Such concerns are not evident in the Ethics: law is needed both to help habituate citizens to virtuous actions and to help maintain the salutary habits they acquire. These needs can be recognized even by those who are aware that the virtues generally fostered by law are not the highest. The opinions one may have about the good, the true, and the beautiful are a secondary concern of most laws. Still, it is well to keep in mind Aristotle's counsel that one who is "to listen intelligently to lectures about what is noble and just must have been brought up in good habits." For proper habituation, laws can be most useful, if not indispensable.
Although intellectuals of liberal democratic sympathies may not believe that morality depends on law, it is almost impossible for any regime that takes itself, and is to be taken, seriously not to shape its citizens with respect to morality. To deny that legislation of morality can or should take place does not eliminate such legislation; it merely conceals it, perhaps distorts it, and otherwise confuses and misleads rulers and ruled alike. (Here, as in physics, much that Aristotle noticed and relied upon is tacitly relied upon by us as well, but relied upon haphazardly because it is not properly noticed.)
It would be useful, therefore, to indicate how pervasive Aristotle understands the law to be with respect to morality in a community. When we see what law can mean, and how it works, we may better appreciate what the law does in the service of morality, even in such a liberal democracy as ours. To speak of the influence of the law is, we shall see, to speak of the many ways that the community forms the citizen and guides the human being. For us, however, the term law does tend to be limited to what "government" does, to the statutes and decrees that governments issue.
We have noticed the most conspicuous way, drawn upon at the end of the Ethics, in which morality is dependent on law. The dependence of morals on law may also be seen in Book V of the Ethics, where justice is discussed at length. It is evident in the discussion there of justice as a particular virtue, the virtue that is intimately related to what is called fairness. Not only is law needed to secure justice among men, but law helps define or establish what precisely is fair in various circumstances. A concern for fairness and trust is reflected, for example, in a community's provision for a currency.
Justice is also presented in Book V as somehow encompassing all the virtues, at least insofar as those virtues bear upon one's relations with one's neighbors. The just in this sense is the lawful. Justice may be seen in the courage (or, at least, lack of cowardice) one is obliged by conscription and military laws to display on specified occasions or in the intemperance one is sometimes obliged by the law of crimes, of torts, and of marital relations to avoid. This role of the law anticipates what is said in the closing pages of the Ethics.
It should be added here that not only is morality somewhat dependent on law, but also that the law itself is to a considerable extent dependent on morality. A properly trained, morally alert citizen-body tends to be appalled by the lawbreaker. But does not this response (which can help keep many would-be lawbreakers in line) rest, in turn, upon the presumption that the law is likely to be, and in fact usually appears to be, itself moral and in the service of the common good? There is a critical reciprocity between law and morality. Reciprocity, we recall from the Ethics, can be vital to justice as a particular virtue.
We have been looking primarily at the direct dependence of morality on law. This dependence may be seen to be indirect as well.
Various of the virtues––liberality is among the more obvious––require equipment, if one is to be able either to acquire or to exercise them. But to speak of equipment, and of the opportunity to use it properly in one's training and in one's career, is to take for granted the laws of property that determine the conditions and privileges of ownership.
Of course, more equipment is needed for some virtues than for others. But even for those virtues which require little equipment for their exercise, such as the intellectual virtues, considerable equipment (in the form of available leisure time as well as of books and other intellectual supplies) may be needed to prepare one for the kind of life in which a continuing reliance upon equipment becomes relatively minor.
The exercise of most virtues requires a stable community, one in which one's body and life as well as property are fairly secure––and, of course, the law is essential here. To become or to remain a civilized human being usually requires a sound community––that is, one in which the law plays a considerable part. Is there not an intimate relation, at home and abroad, between justice and peace? To recognize this is not to deny that friendship also seems to hold communities together nor that legislators may care more for it than for justice. Even so, is not proper habituation needed for reliable friendships, as well as for justice? Who but the legislator, who must always be distinguished from the tyrant, can insure such habituation?
Leo Strauss suggested, "The quarrel between the ancients and the moderns concerns eventually, and perhaps even from the beginning, the status of 'individuality.' " (Natural Right and History, p. 323) The problem here of modernity and free will may be seen in a most dramatic form when we notice how far the law could go among the ancients in regulating activities we would regard as essentially private. Consider, for example, the casual observation by Plutarch at the end of his life of Coriolanus:
When the Romans heard tidings of [Coriolanus's] death, they gave no other signification either of honor or of anger towards him, but simply granted the request of the women, that they might put themselves into mourning and bewail him for ten months, as the usage was upon the loss of a father or a son or a brother; that being the period fixed for the longest lamentation by the laws of Numa Pompilius . . .
Community control of mourning is assumed among the Greeks as well, as is evident throughout Pericles' funeral address.
The city was evidently guided by its sense of propriety, its sense of what was fitting and useful. How seriously such concerns were regarded may be gathered upon considering the execution of the victorious Athenian generals who failed to recover, at Arginusae, the bodies of the Athenian dead.
When we recall the extent to which ancient law would go in regulating what we regard as the most private affairs, we can see how plausible is the Aristotelian contention that what the law does not require, it forbids. This is said, by the way, in the context of a comment on suicide: one's body, to say nothing of one's life, is not something one is entitled to do with as one happens to please.
All this is tacitly qualified by what is said in Book V of the Ethics about that which is by nature just. Mere legality is thereby called into question. Even so, Aristotle would hardly be inclined to believe, as we sometimes seem to believe, that the most serious moral virtue is expressed in resistance to government. Rather, he would suggest that the highest moral virtue may be seen in the man able to rule well. Whatever reservations Aristotle has about legality and even tyranny are presented tacitly, not explicitly, lest he be irresponsible in his teachings. Our own circumstances may be in critical respects different, especially since our age does tend toward an aggressive relativism. It is as a reminder of enduring standards, and indeed of the nature of man, that the Declaration of Independence, with its affirmation of the right of revolution, remains our founding instrument.
We have been considering, by and large, the approach taken by the ancients to these matters. Still, the law, in its broadest sense, very much affects what even we regard as virtuous. Consider again the example of whom or how one may mourn or the example of how parents are to be treated, matters that we seem to prefer to leave to everyone to decide as he sees fit. But even among us, how one treats one's parents or how one buries one's dead––what expenditures should be made, what practices are to be respected, what ceremonies are to be followed––still very much depends, for most people, on the prevailing opinions of that part of the community they are governed by.
Customs can be decisive here. Such customs are a sort of law. That is, it may be a mistake in these matters to distinguish an authoritative public opinion from "the law." After all, the unwritten law, as an expression of the community will, was a vital, perhaps even the major, part of the law among the ancients.
In the broadest sense, then, the rules discovered and set forth in the Ethics are laws, at least to the extent that community opinion adopts and insists upon them. Some necessary sanctions, as well as systematic programs for habituation and supervision, do depend on statutes and decrees for their full effectiveness.
For us, as for Aristotle, the laws most broadly conceived very much define what is virtuous or vicious. Consider again the virtue of courage. Precisely what is courageous can depend in large part on whether one is called up for military service, where one happens to be sent, and what one is expected to do. Thus for us, as for Aristotle, both the law and that public opinion which is shaped, directly or indirectly, by the law help determine how the citizen should act, what one should be moved to do, and what one should be ashamed to do.
That the law usually has more, directly, to say about what constitutes cowardice or adultery or theft than about what constitutes gluttony does not mean that it does not express an opinion about gluttony as well. One may have a duty to keep oneself in good shape, and a self-confident community would make known to citizens that it takes such a duty seriously. Even among us, there is much that dictates how we should look, what shape we should be in physically (to say nothing of how we should feel and act). Social and other sanctions await anyone bold enough, or careless enough, to disregard the models provided by employment guidelines, personal tips in the mass media, advertisements, all kinds of fiction, and the protocols of the many "voluntary organizations" we are obliged to join. In addition, could not a conscription act, for example, provide among us youthful physical and moral training for those who may someday be needed for military service?
We believe we dispense with Aristotle's reliance on the legislation of morality by relying instead on what we consider private shapers of morality. That is, we look for moral instruction to the family, to society and to religion, not to the state or government. But in thus distinguishing these sources of morality, we fail to appreciate the extent to which the ancient polis encompassed what moderns know as society, religion, and the state. We also fail to appreciate the dependence, even among us, of society and of religion, as well as of the family, on the law. The dependence that Aristotle saw of morality on law remains in effect, however concealed (and hence obstructed and distorted) it may be by our understanding both of morality and of law.
That the family is not only defined by the law, but also is empowered and in many ways supported and reinforced by law, should be evident to us. Laws of property, marriage, child care, inheritance, and taxation readily come to mind as very much affecting how families, constituted and privileged as they are by law, conduct themselves.
How these laws work reflects long-established opinions about what a family is, what relations among its members should be, and what kind of conduct by people as family members is anticipated and desired. Similar observations can be made about the place of religion in the community, the privileges it has, and the effects among us of the activities of religious associations. The community endorses and supports both families and religions in large part because of what it believes it gets from them in the form of productive, law-abiding, and otherwise virtuous citizens.
The considerable talk in this Country about "the separation of church and state" can be misleading. It tends to conceal the fact that religion has always been among us a particularly effective way for the community to manifest itself, to shape opinions and hence souls, and to guide actions. Which religious sects prosper and are influential among us still depends, to a considerable extent, on the opinions and standards of the community. Although little is said about these matters in the statutes of this Country, that does not mean that religious sentiments do not exist among us as powerful community influences.
Besides, it should be noted, curiously little is said explicitly about religion and its bearing upon morality even in the Nicomachean Ethics. Aristotle seems to be primarily concerned to discover and refine the moral standards by which human beings should be governed. What laws are to be used to establish and maintain those standards depends on the good sense of the community and the prudence of its leaders, including its poets and other educators. The institutions to be used, and how they are to be used, depend also on circumstances and hence should be adjusted from time to time. Such institutions comprehend the formal religious practices of the community. But Aristotle tends to see these as secondary, reasoning perhaps that what is decisive in a community is its generally accepted sense of morality. Religious and other institutions, especially if they are promoted and regulated if not even subsidized by law, can be expected to strive for morality to the extent possible in an imperfect community.
Source:http://www.cygneis.com/ethics/gamoralist.htm
Comments