Emanuela Matei, great subject for a book, a TV show and I do not exaggerate.

I will participate. At this particular moment, I'll take a short and partial break from RG activity as I have to work on a few projects, due tomorrow and the next few days.

I'll have hard time to find a point of priority to start with, but, there is a point Nr. 1 even so the issues are interconnected and we have the tendency to complicate things, going off subject(s).

@ Kenneth Bratthall, I understand that you have had an experience of serving in a Swedish Court and this was not very good. I want to underline from the beginning that the approach I have on RG does not rely on a specific case, or on my recent experiences. Everything what I have written in my introduction above does not express more than a theoretical and legal sociological approach, not the detailed reproduction of a specific case, experience or other direct source.

I perfectly understand your frustration, but a scientific approach requires detachment from the personal experiences to a certain extent. The critics of the Swedish system, especially the first instance system with laymen is all together a different subject, a very interesting one, which is already under debate among lawyers in Sweden. My personal opinion is that in this case, the main theme is the interaction between the politics and law. In the Swedish legal tradition there is a strong connection between executive and judicial, I agree with you that this is maybe not the best way to guarantee the autonomy of the judicial power. However the systems have been developed under different circumstances; initially the Nordic systems were very close to the German model, but today they constitute a specific branch in the classification of legal families.

"The legal systems of Denmark, Finland, Iceland, Norway and Sweden do not fit neatly into the civil-law pattern. Their original Germanic public and private law was collected in legislative form long before the rationalising fashion of the French model: in Denmark (1683), Norway (1683), and Sweden-Finland (1734). Marked by relatively small populations with a high standard of living, economic efficiency and the ideals of the modern welfare state, they have adopted much uniform legislation especially in the fields of commerce and family law" (http://www.law.cornell.edu/wex/legal_systems)

What I ask here does not refer to the politics, but to the moral and ethics. Think for instance the idea of fiscal fraud, there is not the same level of moralization of 'tax cheating' in all the countries in the world.

.

Dear Emanuela

Thank you for raising a very interestion question.

In your introduction to the question, you started by talking about "derailment from the initial track". Forgive me, but in sharing my thoughts I shall start from the same place.

You mentioned that you were inspired by one such derailment. Surley that means that this particular derailment had a positive and productive impact on you, hence the very interesting question you raised. It seems to me that you turned a poitive and productive discussion into another positive and productive one. In that discussion I was talking about the relation between morality and crime while here you have taken it a step further by talking about the relation between law and morality.

In that particular thread I gave a direct answer to the main question.However, sometime during a discussion, people raise questions about your answer. In attempting to answer them you go off subject. There is nothing wrong with that, they are informative, as long as you quickly return to the main question asked.

One of the questions I have been asked is, "what is the truth" and in the context of the discussion,talking about the mind and religion, I answered "the truth is something worth seeking, God is the absolute truth,God is absolutely worth seeking". I wasn't even talking to you Emanuela and I don't understand why you have interpreted in the way you mentioned in your introduction!! I am sorry you feel this way, I assure you this is not the type of character I am.

Now going back to the main question you raised, the relation between law and morality-ethics, I believe people in the profession are the best people to answer this question.I am not a lawyer,nor am I claimimg to be one,but in my humble opinion the job of any judge is to uphold the law of the land in the court of law.For a judge their might be a conflict between what he/she may believe and what the law says.The example you gave is a good one. The judge may believe legalizing prositution is immoral.In any relevant legal case, this should not in any way interfer with him passing a sentence.

Dear Issam, thank you for your answer and I appreciate your sincerity and I respect your faith. For me God is personal, either you believe or you don't, you shouldn't use the invocation of God's name in a scientific forum. We can see God as truth as light as the path, but we can't see God as scientific argument. Religion on the other hand has relevance for the present question. The big religions, Islamic, Christian, Hinduism, Confucianism, Judaism, all of them have connections with law and moral. And I am sorry that I've used the judge example, because this one is more relevant for the common law, but not so much for civil law. I will reformulate the question: Do ethical rules have an influence on law making and law enforcing? I mean the creation of law from the beginning until its amendment or repeal.

Dear Emanuela

I must say it give me great comfort that we have cleared the confusion. I do agree that I probably have not answered the question about truth in the right context even though we were talking about mind and religion. My apologies if that hurt your feelings.

Reformulating the question makes a lot more sense now Emanuela . My answer will be accordingly different.

I totally agree with your statement, "the values of the society can not be alienated from the law, the law comes as a reflection of these values". In this context, yes I believe ethical rules have an influence on law making, but I am not so sure about law enforcing.

Dear Emanuela

Reflecting more on my earlier post I was thinking what happen in a society where their is more than one religion ? What could be ethical in one religion may not be in another! Is there a conflict here? This is indeed a very interesting and challenging topic.

Dear Emanuela,

I find your question very general, even after your clarifications. However, the discussion might become productive.

"Do ethical rules have an influence on law making?" I think we can answer positively this part of the question. By answering we may mean two different things: a) that ethical rules should have an influence; and b) that they actually do. The second part is a fact that we cannot deny; the first part is not a fact but a general principle that one can accept or not or that may need qualification.

How ethical rules influence the work of the law makers? In general, because law makers are moral beings who probably feel obliged to take into account moral/ethical considerations when the make laws. Obviously, that does not mean that they always or completely translate moral rules into laws. Moral/ethical issues also influence law makers through the pressure put by citizens, party members, organisations, etc... In this case, we can say that morality influences law through politics.

"Do ethical rules have an influence on law enforcing?"

In legal theory, the parliament is the only legitimate body to make laws and in principle, the constitution is the only constraint that it has to take into account. In legal and democratic theory only law rules. Law enforcement bodies (police and other administrative bodies) absolutely constrined by the rule of law principle, which implies that their activity must stricly abide by law: They lack the legitimacy to create or modify laws. When it comes to judges, we can admit that in some specific cases they may create law but this creative activity should be presided by the constitution and constitutional principles and values, not primarily by they ethical rules.

What is the relevance of the question? It's a very old question concerning the validity of law and the legitimacy of the government. Ethical rules can be used to criticise legal system and the government and therefore to legitimate protest, dissent, civil disobedience and revolution. Ethical rules may provide the ground for toppling an unfair government but a new legal order cannot be based only in ethical rules: it is the outcome of political activity and it is more connected with the power of being together than with the strength of an ethical of moral principles.

Dear Jose Martinez llopis, I have to make a confession to you since I have studied both social sciences, including political sciences and juridical sciences: coming from a political approach no one can understand how law actually functions, but only how law SHOULD function. The political approach is too much about SHOULD and WOULD and too little about realities.

Another thing, that I must confess is that I am not after text-books kind of answers, like the elementary knowledge on how democracy function, (in fact again how is supposed to function!), because I assume that all of us here have already achieved the ABC of the main topic.

When I formulate a question more openly is because I don't want to influence the reader, to guide him/her towards my way of approaching the question. However since I see that nobody until now succeeded in 'getting close to the point', I feel myself compelled to express the setting into more blunt terms.

Neither the law-maker (politically involved persons acting in their quality as members of the parliament) nor the judges (legally educated persons acting as decision-makers in specific cases with the pursuit of interpreting/applying the law), nor even the police men or the bailiffs (acting in their quality as enforcers) are robots, they are human beings, therefore they can not think 100% objectively.

The subjectivity of all these persons involved in these legislative, legal and judicial processes is a reality, despite all the procedural mechanisms used to diminish it, a certain amount of subjectivity will always exist. This is not necessarily a bad thing, but it can be in certain situations.

The moralization of others' behaviour has nothing to do with the law, but the reality of the human nature is that we all are judgemental to a certain extent. Certain habits are moral according to one tradition and not to other traditions. We have the natural tendency to be more tolerant against some bad behaviour, which however is not conflicting frontally with our frame of ethical values and be less tolerant against other type of not recommended behaviour clashing with our inner moral guide. When I say 'we' I include everyone, the member of the parliament, the judge, the police man etc and the rest of people with no special authority, the large public.

Now to make the connection back to religion and assert that this source of authority is still so strong, because the author of the 'code of conduct' is a divine source that can not be contested, can not be judgemental and is always right. This means that intuitively all the human beings search for such a source, knowing nevertheless that human beings are not able to live up to these expectations. It's the same thing as being the observer and the observed subject in the same time, we can never be detached from the subject and therefore we are incapable to think objectively.

In matters of law, objectivity is still the main expectation. I see here a contradiction between expectations and realities.

Dear Emanuela,

As you said, the influence of moral views is always present in human behaviour and activity. More generally speaking: subjectivity is always 'present'. The point is that it cannot be showed and that it cannot be used to motivate or justify a decision or an act that is regulated by law. The training of a judge is not only intellectual but also emotional and political: regardless of her beliefs, she must believe that the only source of authority is the Law. This principle of legality may contradict somehow the religious beliefs of certain people, but that's another issue.

The cases of deviation from the principle of legality are probably a low percentage: In many cases, these deviations do not come from morality interference nor even from subjectivity. In most cases, the legal system can expurgate them.

I will add one more dimension to our conversation in here. Think 'law' and then think 'justice'! How much would you say that these two concepts tend to overlap in reality and not in theory? How much justice is included in the law? Is there any space of injustice hidden inside the frame of law? Are all laws just? Jose brought the training of the judges into the discussion. Very interesting! However we do no train 'tabulae rasae', we train individuals who already have a profile, including a set of moral and maybe religious convictions. The character is already developed at the age when the training is provided.

The US system with a jury representing the whole spectrum of society is in fact pointing towards the same direction. Diversitas delectat, but more than so, diversitas is a pillar of justice. Think about that!

Justice and law, and the ratio between them is a big problem in every country and pro every people

Wherever there are lot of objectivism and subjectivism, and so it is so difficult to go in general way, we need to stop step by step and to analyse them

Think of law as an artifact, something which is designed and made by concrete people. Language is very tricky. We have a M. of Justice, not of Law. Because law is nothing in itself, law is just the expression of state power -repression some would say. When you speak of 'justice' as opposed to 'law', 'justice' is something not comparable at all with 'law'. The relationship between both terms is as tricky as the relationship between 'beauty' and 'design'. We could even say that it is nonsense. 'Justice' can be defined as an ideal, as a result, as a process, as a state of affairs,... 'Law', the law of a given state is something very tangible though broad and multidimensional. Law is public, written, equal for all, it can be fair or unfair, it can work properly or not, it can work in a social context characterized by equality or inequality -of opportunities, of income, of resources, whatsoever. Law is a text, it´s application can contribute positively or negatively to the achievement of justice -a fair state of affairs. However, justice cannot be achived only through legislation. More over, probably is not wrong to say that law is primarily concerned with order, with stability, rather than with justice. Law is also intimately related to a historical product called "state': i.e. monoply of violence, representative democracy, rule of law, fundamental rights... Therefore, the relationship between law and justice broadly speaking is ambiguous, not as straight as we tend to assume. A bad law or a law that doesn´t function properly can increase the level of injustice, however, a good law cannot do much for improving justice.

Dear Emanuela

I have not much to say on the subject at this stage except to thank you for your last two posts. It is absolutly direct to the point .I also want to thank Jose,and Bashkin for their thoughts on the subjet . I am, beyound doubt, learning an awfull lot from you all. Thanks again Emanuela for a very interesting question.

To be short, legal issues and morality are interconnected and cannot be divorced. Legislative norms are largely based on morality, thus, morality serves as a cornerstone to laws.

Santa

I totally agree, in principle this should be the rule. But unfortunately, in reality there will always be exceptions to the rule!

Issam, please read carefully, -- I said that these ''norms are LARGELY based on morality'' and not 100%. Moreover, exceptions may be interlinked to almost every field of the laws and conventions.

Santa

Thank you for the clarification.

Wherever there are lot of objectivism and subjectivism, and so it is so difficult to go in general way, we need to prepare a programm stop step by step and to analyse them in ecxact time and place.

The task of judges -specially the task of constitutional judges- is essentially moral in the sense that the constitutional magistrate -mainly in the continental sistems of law- faces "hard cases"; a case is hard in many events: for example, in the absense of norms, or in the collition of norms, or because the rationale of the both sides in dispute is equally strong in the argumentation... in this kind of cases, the judge goes beyond the law (cause the law itselkf isn't the right answer or is just a part of it) and looks for principles (not just law principles, but principles in general).. eventually those principles coincide or are moral principles... now ¿how a community reflects his moral values in the law? it's a matter of perspective: in the traditional religious systems of law (as the east ancient systems) there is a deep relation, but in others, like our occidental systems the correlation is not easy to handle; in fact, some constitutional courts have assembled the two areas (moral and law) or, at least, have written well stablished arguments that links the two fields (as the constitutional court in Colombia,a country with a very hiogh degree of criminal activity but with a strong judicial system).

The question depends on how you define the terms. There are a variety of concepts of "law". When ethics is considered as rules ( enforceable professional rules of ethics ) they are analogous to one of the concepts of law. When considered as a standard of acceptable behavior ethics is analogous to morals. If a lawmaker (in one of the concepts of "law" ) abides by a standard of morals it has an effect on the lawmakers function in making law.

Law is an instrument of policy. In the west, regulatory policy is formulated by the state with a view to the interests of various stakeholders and including its own. Law is moral to the extent those interests are moral; ergo, often not..

It seems that your approach has some vagueness. I suggest you to take these cares at least:

1) what means "moral"? Do you suppose thart there is one "moral" o there are different morals?

2) whoms moral? society? (what's is this?), judge's personal moral?

3) I think departing a very simple statement: when we think in coercive decisions (like law or judgements o adjudications) we are out of moral field, or better: we are only engaged in institutional morals. This is a special dimension of morals, that allows to have different solutions between personal moral and institutional one. This gap can't be canceled. So, I think problems of law-makers or judges must be read from an institutional moral point of view.

I once had a graduation teacher that used to say:

"Law (in the broad sense) must ALWAYS lag behind moral conceptions, for morality is at constant change. If law was to be occupied of new concepts regarding morality, it would not fulfill it's duty to rule society properly". - or something like that...

He wanted us to understand that morality kind of "solidifies" with time AND law must regulate only that specific kind of morality (the one that's solid).

Society must observe the most accepted types of behavior and make a moral judgement of that behavior so that law can regulate it.

So, yes, i believe they very much influence each other and law SHOULD be preceded of a moral conception or it would be an inconsistent law filled with intentions that do not exactly represent society's best interests.

Now, i believe the law can influence morality if it regulates a new paradigm to society, so morality would be shaped by it's conceptions and would absorb whatever is useful so one day the morality would best surpass law's interests and a new law is made to overrule the previous one.

I know it sounds very subjective and i forwardly apologize for the bad English (or bad grammar at least)!

I agree with Maree Livermore, but I still think that other legal traditions can have a different approach. In the Scandinavian tradition the main instrument of interpretation is provided by the objectives expressed by the Government in the pre-legislative works in case that the Government Bill has been approved accordingly. The general legal principles being pertinent for the interpretation of the proposed statutory act are also discussed during the pre-legislative phases and eventually the provisions of EU law that can be relevant. In the Scandinavian as in the Common law tradition, the law is an instrument of public policy and has no express relation to moral per se. I want to underline that in the moment 'save the planet' for instance becomes law, we no longer talk about ethical rules, but about public policy. However the public policy can be completed and enhanced by ethical rules such as 'buy only green products' or 'take the bike and not the car as often as possible' that individuals adhere to by own initiative. The same thing is true about the corporations and their Social Responsibility Codes, which are collections of self-imposed ethical rules.

But real life is never so simple! My initial thought was that the moral rules can be contradictory and what it's good for the forest and for the fauna and for the people on long term, can be impossible to follow on short term for the people actually living in that area. This is only an example that I have now in mind. The bottom line is that we have to deal with is not a convergent and coherent set of moral rules, but often to situations where divergent rules intersect and collide. In these situations the individual 'code of ethical rules' of the decision maker may have some impact on the final decision.

In the interpretation of the rules-both adjective and substantive-follow the criterion established by Alf Ross, who regularly consulted since I study in the first year of my university education and to rediscover it constantly in my hours of reading.

Then believe that standards have longer useful but they are interpreted with a useful sociological stance for the entire society desirous of a proper administration of justice. That is, it is no use to constrain the interpretation of a rule which expressly provides to its text, if in fact that rule "sociologically" not adequate to suppress improper conduct occur today because-among other factors-the passage of time since to be punished or reprehensible conduct, by the broad and continuing development of a range of tricks and deception, the result of constant and innate creativity hombre. I have certain that most of the words embedded in the rules drafted by the legislature are ambiguous, vague and do not reflect the true "will of the law." Therefore, it is wrong to believe that a text can be so clear that it is impossible to doubt as to its interpretation, which means-in fact-in problems of interpretations by judges and also by operators right of those who apply or should apply the law.

With that, I think the difference between law, morality and ethics are clear.

Thank you Pedro! Indeed some of the text books bought as an undergraduate have a place on my bookshelf and I rediscover them time to time. However I see differences between different legal traditions. In the Scandinavian tradition the pre-legislative documents (Prop., SOU, Bet) are used to reconstruct this will of the legislator. These pre-legislative documents, for instance Governmental Bills, constitute the main source of legal interpretation, while in other traditions they are almost irrelevant.

In Argentina it is very common to analyze the parliamentary debates preceding the enactment of the law. In Bolivia, where I am currently residing not valued absolutely none of this.

Indeed, I believe that these procedures prior to the enactment of a law are crucial, as the country's idiosyncrasies.

However, I think the moment of truth, says Alf Ross, the law is not what the law says or previous procedures, as times change, globalization, communications, etc..

I agree with Victor. In India the constitutional court, especially the Supreme Court has often read much higher law, read morals, into the positive law document. Much of the language in the rights regime is a reading of an expanded semantic understanding borrowed from morals and ethics into the positive law document of the constitution.

Desde los inicios del derecho, la doctrina jurídica se ha planteado este debate que ha llevado al enfrentamiento a doctrinas tan trascendentes a la evolución delderecho como lo son el jusnaturalismo y el positivismo. Sin embargo, el derecho moderno considera que la ética y los valores que esencialmente se sutentan en los principios morales de una sociedad en un tiempo determinado, no pueden ser ajenos al derecho y ello lo vemos de manera palable en la importante evolución de los derechos humanos y su tutela

This topic is very interesting.

In theory, legislators must take into account the social reality to create legal norms.

In reality, the power groups that control the legislatures create laws according to personal interests.

The law not only consists of rules, also involves other issues, such as social application and judicial interpretation.

In this sense, the social and cultural values ​​have interference in the application of law, therefore, the judges must consider such situations when resolving disputes brought to their knowledge.

The principle called "pro person", leads to the situation that in the practical application of the law have to take into account the aspects real and not just those contained in the legal rules.

Thus, in the formation and implementation of the right to be taken into account all the aspects that make up society, for example, culture, customs, the norms and especially the reality.

Law has the twin pursuits of order and justice. They are symbiotic, this proving that positing law (positive law norms) with legitimate justice needs requires taking societal values, albeit morals, into consideration for law-making purposes.

A ética e a moral são fundamentos para a criação de um direito positivo aplicável a todos. A lei surge da necessidade de fixar normas de convivência comum que por sua vez advém de preceitos morais e éticos.

Ter um comportamento orientado sob a ética e a moral é inerente ao ser humano que somente irá ser obrigado por meio da LEI.

Seguir as regras, mesmo que compusoriamente, também é considerado um comportamento orientado pela ética e pela moral.

No direito natural seguir regras é uma questão de ética e moral, no direito positivo é uma questão ética e moral obrigatória.

Portanto, pode-se dizer que as regras aceitas pela sociedade são dirigidas por um comportamento guiado pela ética e a moral.

Mas, desobedecer ou não aceitar a uma regra significa dizer que não existe moral ou ética.

As regras éticas ou morais são subjetivas.

This is the google translation of the above said and I invite Maria Cristina if she can to correct it. Intuitively I can say that compulsoriamente must mean something like compulsorily.

'Ethics and morality are grounds for the creation of a positive law applies to all. The law arises from the need to establish common standards of living which in turn comes from moral and ethical precepts. Having a goal-oriented behavior on the ethics and morality is inherent to the human being that will only be required by LAW. Follow the rules, even if compulsoriamente, is also considered a behavior guided by ethics and morals. In the right natural follow rules is a question of ethics and morals, positive law is an ethical and moral required. Therefore, one can say that the rules accepted by society are driven by a behavior guided by ethics and morality. But, not disobey or accept a rule means that there is moral or ethical. The ethical or moral rules are subjective.'

Let's say now that both ethics and law have the same ideal to ensure a just society. It's obvious that if ethics was enough, law wouldn't be necessary. If law was enough, ethics wouldn't be necessary. For me this is a logical indication that law does not live up to the justice ideal envisioned by the ethics and neither the latter lives up to the ideal imposed by the first. The ethics model is more diffuse and has a different form of dynamics. Law is closely related to politics and politics is more and more globally construed, while moral is much more locally specific. To this complexity one more intricate element must be added, the double standards of our days. The system is not coherent. Between declarative statements such as 'I always pay my taxes' and actual payment is a long range of avoidance tactics and face saving.

My opinion is that 'moral' is invoked in an immoral manner; moral has a positive semantic charge, but by being abusively used, it started to point out in the different direction. I see a tendency of invoking moral not as a self-imposed standard (as it should be), but as shield against the others shady behaviour or more often against our fears concerning the others. We live in societies with high aspirations and poor planning. My proposal is obvious to stop confusing compulsory law and moral (or soft law). Soft law is self imposed (no finger pointing, but just an honest review of own deeds and misdeeds, a set of personal aspirations and values etc) while compulsory law is meant as a shield as a set of rules protecting against others misdeeds, preventing misdeeds etc.

If the moral golden rule would function (Do not do to others what would anger you if done to you by others) then the need to enforce compulsory laws would be minimal. But attention if the golden rule does not function outside the law, it is probably true that it does not function inside the law either. This type of paradoxes interests me and with that I admit also that my idea of humanity is a slightly cynical and morally neutral one. I do not believe that people are actually driven by moral rules, but they want to appear as moral good creatures. The label is more important than the content and this rule is reflected by the whole society. This type of issues also concerns me, because law itself is a social construction build on a moral foundation. Subjectivity is inherent, even in the notion of justice (the justice of the lion is to hunt down the gazelle and the morality is the survival of the species and this is clearly understood and accepted even in our society). Moral is not about actual values such as good, honest, sincere, kind, hard-working etc, but about the projection of good, honest and so on. Therefore it's not unusual that exactly the person who is more projectively good (advertising the good) is in fact less good (starting from the premises of neutral moral). Projections are often meant to compensate for an actual deficit of genuine value and high aspirations. As I named before law is a social construction on a moral foundation, but if the moral itself is no more than a projection, what is law? Can law be saved from 'moral' and be built on more objective or more solid grounds?

I agree with Emanuela Matei

Prof. Dr. Bashkim Lushaj: "I agree with Emanuela Matei"

about what?

Just now reading the news on 'toute l’Europe' I've discovered a good example of the above said on double moral standard and moral projections replacing the actual values: the horse meat scandal. Countries like UK and Sweden played on the card of lack of gastronomic traditions and the moral scandal was that people who wouldn't otherwise have consumed horse meat have been deceived and this is of course a fraud. The facts on how many products, in how many food chains contained this type of meat (or other sort of meat than indicated) are overwhelming. If you really wanted to buy some good quality of horse meat (including in restaurants), it would not be easy to find such a place (in UK and other countries where horse meat is taboo), instead you could eat it without knowing that it was horse meat (http://www.guardian.co.uk/uk/2013/feb/21/horsemeat-scandal-rise-sales-france-butcher).

In France where such a tradition exists the sales of equine butchers have been increased with 15%, while the 'non-traditional' horse meat consumers have discovered that their grandparents have had this type of dishes on the table for some 60 years ago. It's possible that the scandal will increase the interest for these products and new specialised stores will be opened even in the non-traditional countries. My position is once again morally neutral since for me consuming lamb meat is not more morally justified than eating horse meat. The fraud (the exchange of labels) is beyond any doubt a reproachable illegal act. But just watch the switch of attitudes from indignation towards curiosity and interest and appreciate the nature of human moral!

hehe, next time France should import donkey-meat instead of horse-meat, if they want to sell it as cow-meet in Great Britain...

We see such double standards in India with regard to sentencing activity, especially capital punishment. This allows the state more space to make choices on the timing of execution, a fact which cannot be subjected to judicial review. Hence it leaves a chance for rule by law and not rule of law

@Zsolt Yes, in this reversed reality jokes have become the only manner to make a serious statement, since an actual serious statement would be treated as a joke. If half of the world is convicted to severe punishments in breach of central legal principles and human rights (thank you for your comment Sai Ramani), here in the other part of the world, we all are convicted to derision. This is indeed my point.

'First as Tragedy, Then as Farce' in the words of Slavoj Zizek is the ethical model adopted by us today in West.

http://www.youtube.com/watch?v=hpAMbpQ8J7g

In 2009 Herta Müller was awarded the Nobel prize for her activity as a writer. The justification for the Nobel Prize acknowledges her poetically condensed “landscapes of the dispossessed”. I have recently listened to her and what's obvious with her state of mind is the cohabitation between her and an accumulated anger. She is lost and helpless in this familiar landscape, she can not exit it; an exile from exile would come as an ultimate form of liberation. Pending between exile and exile from exile she is convicted to continue to write. It's striking that her anger not only brought her a Nobel prize, but moreover saved her from post-modernism, from shallowness from false dilemmas, from farce. It appears to me that a method to become immune to farce (false moral) is to remain captive in a landscape of genuine tragedy. Are there any other methods to remain connected with reality without risking to wander in the 'landscapes of the dispossessed' for the rest of the life?

Remaining captive to the genuineness of the tragedy is a difficult task. I tried to address myself to the war crimes by the Sri Lankan government, but every time I also revisit the crimes of the rebel army and also at the selective attitude of the commentators who condemn the State and not the rebels for crimes like genocide. I sometimes wonder if silence will make me remain with equanimity and look at the tragedy per se

Dear Sai Ramani, I am very ignorant concerning the impact of post-modernism outside the Western world. I don't know to which extent my observations fit also the landscape of India. However I can assume that laughing in the face of tragedy is a very natural reaction. In this manner Charlie Chaplin made fun of Hitler and fascism. This is actually a good thing, a good quality of the human being. I am not critical against this type of reaction, just the opposite I'd encourage it.

What I am critical against it's not the type of direct denial 'don't mention the war', but a much more insidious and dangerous type of denial, not an actual form of denial, the type of denial that Herta Müller and Slavoj Zizek are critical about. It's an attitude transcending the actual denial, that empties our world of any moral sense.

In a dictatorship nobody talks, but every one knows what it's actually going on. In a post-modernist world everybody talks, but nobody is allowing him/herself to know what it's actually going on.

Hi Emanuela, it would be great to do that, laugh in the face of tragedy. I guess it would take a couple of generations to learn to move on. I feel in India we are still recovering from colonialization of our thinking, we haven not looked at reconciliation as an alternative landscape. That even restricts our humor spaces too and we try to limit our laughs and gags in the name of cultural and moral accommodation. I wonder how do we build theoretical constructs to explain these conflicting spaces. I have enjoyed this conversation here. Thanks so much. Best

Thank you, Sai Ramani. It was an interesting discussion for me as well! I was also thinking whether I am going to experience (live long enough) to understand more than I do today on other cultures. We have in fact a lot to learn from each other. It's very interesting that you have used the term conflicting spaces. Are you familiar with the theory of spatial justice?

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1791668

Interesting reading Emmanuela, we understand spatial justice mostly in the context of geographic spaces, somewhat similar to what the author says while quoting Deleuzian ideas

I know Andreas, personally. He is a very enthusiastic lecturer. :)

I am not a lawyer, but my brother is. What I have gained is that law (mostly to serve the establishment) does not come from the blue. It is drawn from tradition and cultural ethos of community based on religious values or social cultural traditions. However, law changes with changing social and economic circumstances and scientific advancement. Therefore, as a scholar has very correctly pointed out that law cannot be divorced from morality. However, it is meant for a larger community. Persons having abnormal behaviour or instinct, a miniscule minority cannot challenge a law meant for the right-minded majority. However, now a days to imitate a different culture even in India laws are modified/changed to accommodate a miniscule minority and so be it SC or HC or any court does not see morality in law, it see what so-called developed countries or advanced countries or doing. If one object to this trends or try its community members to persuade to give u all that does not fit in our culture and ethos is either ridiculed especially in media or blamed to do moral policing. The result is that it has created an impression on the minds of youngsters that there is nothing wrong, if one can do, he must do. As such, self-gratification has taken place of self-control and law-abiding.

OOOOOOH, it is all nonsense from an old mind.

Have you read the article of Andreas on spatial justice dear Mohammad? In a sense it explains the relation between justice (an ideal) and law (insufficient means to attain this ideal). In between we are left suspended in a reality that we must react to and then even if insufficient, incomplete and expensive, these means are better than nothing at all. It's also understood that law is not only a space of justice but any intervention in fact leaves place for injustice as well. A practician does not enjoy the luxury of performing philosophy lectures before the Court (or very seldom does so), but most of the time acts more as a bureaucrat or technocrat adopting a pragmatic attitude trying to present the case in a favourable light for his client. Therefore, it's a huge difference between talking law in theory and talking law in practice (in most of the legal traditions). If we add to this the complexity of the interconnections law-religion and law-politics then the picture is even more confusing. Clarity and structure is what a good lawyer brings to the 'table' so to speak.

Our understanding of spatial justice, is looking at law as intervention strategy to meet the needs of justice hitherto not answered in the general paradigm of the society. Justice gets tempered on the geographic landscapes. Am a confirmed fan of the CLS debate and I think spatial justice is more a logical extension of the question raised by CLS scholars. I base my thought on the Indian and the Asian context, where I find that post-colonial governments have been struggling with conflicting spaces of justice. These conflicts are largely derived, and yet the idea of justice being made geography-specific has been subjected to much opposition and dissent. Mainland and also politically aware regions have demonstrated little regard in favour of attempts to make justice more relevant to other classes not so politically aware. In fact it is not over-statement to say that these politically aware have celebrated and taken advantage of the indeterminacy of law and the weaknesses in instrumentalism critiques. Unfortunately, i feel, we were not able to make justice a relevant feature, and have enjoyed the selectivity of morals as a refuge to hide our inability. Also, i feel instead of using spatial justice through the route of geographics alone, I feel we should define and restrict our moral spaces, so that we know we will not get lost in balancing conflicting interests. Rather such definition of moral spaces, will tend to regulate the abuse of these spaces and help law function with a justice-orientation, and not let justice become the property of a few who can articulate it more advantageously.

Andreas is speaking at the annual conference of the ANU at Canberra this December, Looks like its a must attend, especially after reading this article on Spatial justice

In one sentence, law sets the minimum standard of human behavior while ethics sets maximum standard of human behavior. Law prescribes remedies and punishments for the violation of the standards it sets while ethics expects an ideal set of behavior of individuals concerned. The success of any law in a particular society depends upon its social acceptance in that society. Both law and morality influence each other. Some times law becomes instrumental to bring about social change e.g. social evils such as slavery has been eradicated to a great extent but sometimes a law becomes meaningless due to its persistent denial by the society as in the case of marriage dowry in India. Moral and ethical values can be instrumental in guiding the law making.

I am sharing the idea of Kshitij. Where morality gives a wider more vage standard, law is prescribing a concrete set of rules. I'd like to make a connection to emotions. A few years ago I did a research on the correlation between emotion and law. It turned out that the sentences in Netherlands very much correlated with how much shocked people were by a certain crime (see Law as a reflection of emotion). I think law is the rationalization of norms that follow emotions and that are adjusted by the circumstances. Emotions are very much biologically determined, values form mostly unconsciously during an individuals life, norms evolve within small groups like a family, whereas the law is necessary within large groups of strangers. Law can contradict the moral of individuals and groups, however when the gap is becoming to big, less people will accept is as a rule.

This connection to biopscyhological emotions also explains why morals on some points are shared al over the world and law varies from country to country. For example, the killing of a groupmate is condemned in practically all cultures in the world. However, the sentence on killing varies widely and also depends on the circumstances. Rejection of killing a groupmate is a human trait, whereas the way we deal with it depends on the circumstances and the culture. The rejection is part of our emotions, values, moral, the way we deal with it part of culture, rules, law. However, these are two sides of a coin, I think.

Positive law must be grounded in the reality of the human condition and its needs. The typical morals of a community (those that an anthropoligist does not find unique and fascinating) tend to reflect an appreciation for what is needed for humans to thrive. If the law does not speak to matters of this sort, if it does not connect to the human in a vital fashion, then it will appear arbitrary and of no significance to the governed. Here is H.L.A. Hart in the Concept of Law:

Reflection on some very obvious generalizations – indeed truisms –concerning human nature and the world in which men live, show that as long as these hold good, there are certain rules of conduct which any social organization must contain if it is to be viable. Such rules do in fact constitute a common element in the law and conventional morality of all societies which have progressed to the point where these are distinguished as different forms of social control. With them are found, both in law and morals, much that is peculiar to a particular society and much that may seem arbitrary or a mere matter of choice. Such universally recognized principles of conduct which have a basis in elementary truths concerning human beings, their natural environment, and aims, may be considered the minimum content of Natural Law, in contrast with the more grandiose and more challengeable constructions which have often been proffered under that name. (Hart, 1997, p. 192-193)

As much as I agree with Evgeny,in India we also have examples where legal norms tried to order against community values, in the larger interests of the morals in the society. For example, there is a law criminalizing dowry ( a material gift of value given to the groom at the time of marriage, an issue that has become a cause of exploitation of women in the society). While the logic for this practice was the community values that have subsisted for ages, the legal norm criminalizes it for the sheer oppressive practice that it has come to be in recent times. So I can say that sometimes the legal norms set the agenda for the social norms, while they also share a symbiotic relationship in other spheres of social ordering.

Thus legal norms, as Bill had said here earlier, largely have their intention grounded in the human conditions as existing in the society, and the existential needs of that society. Norms, if not justified by their existential needs, lack the character of norms per se.

Morality has biological roots. It evolved because it was better to be moral and cooperate (help, care, share, protect). It paid off. Morality was (and is) a stable evolutionary strategy. Societies were growing larger over the centuries, they get complicated. Law emerged.

In my humble opinion, law is based on morality. We follow legal rules, because we have innate capacity to follow moral norms. We are rule-following creatures. If the content of law stands in opposition to morality, then it is not obeyed.

law is supposed to  reflect  morality and ethicality in an ideal situation,  however it is pretty unlikely to come up with  valid and reliable operational definitions for moral codes which turn out to be volatile and even biased or miscomprehended by human illogicality and cognitive ease .

Very interesting discussion. Thank for your question

Michael Bauman illuminates the relationship between law and morality when he says,

“[b]ecause every law springs from a system of values and beliefs, every law is an instance of legislating Morality. Further, because a nation’s laws always exercise a pedagogical or teaching influence, law inescapably exerts a shaping effect over the beliefs, character, and actions of the nation’s citizens, whether for good or ill. Those who seek to separate morality from law, therefore, are in pursuit both of the impossible and the destructive. The question before us is never whether or not to legislate morality, but which moral system ought to be made legally binding.”;[1]

[1] Bauman 2009 CRJ 1.

Michael Bauman pertinently says, "Because every law springs from a system of values and beliefs, every law is an instance of legislating Morality. Further, because a nation’s laws always exercise a pedagogical or teaching influence, law inescapably exerts a shaping effect over the beliefs, character, and actions of the nation’s citizens, whether for good or ill. Those who seek to separate morality from law, therefore, are in pursuit both of the impossible and the destructive. The question before us is never whether or not to legislate morality, but which moral system ought to be made legally binding." https://www.equip.org/article/law-and-morality/