What is the proper relationship between law and morality? This is a political question. In order to answer it, we must first answer the metaphysical, epistemological and ethical questions underlying it: What is law? What is morality? How do we know? Ethics is the central branch of philosophy and its raison d’être. It tells us what is right for us to do. But in order to know what is right for us to do, we must first know what kind of beings we are. The purpose of the science of ethics is to discover and define a code of values to guide our choices and actions—the choices and actions that determine the purpose and the course of our life.1 Ethics tells us how we should treat one another, giving rise to politics, the branch of philosophy that defines the principles of a proper social system.2 The key political issue of our time is freedom versus statism.3 This, I will argue, is the issue at stake in the question of the proper relationship between law and morality and freedom is the only rational choice.
If we are in what Rand called a “malevolent universe,”4 then by our very nature we are “helpless and doomed … success, happiness and achievement are impossible to [us] …emergencies, disasters, catastrophes are the norm of [our] life … and [our] primary goal is to combat them.”5 In this case, it hardly matters what we do. Regardless, the universe will conspire against us to defeat our purposes. If, on the other hand, we are in what Rand called a “benevolent universe,” 6 then “ideas matter . . . . That ideas matter means that knowledge matters, that truth matters, that one’s mind matters.”7 In this case, there are objective answers to the above questions and the answers are knowable.
If there is an objective answer to the questions, “What is law?” and “What is morality?,” and the answers to these questions are knowable, then how to apply these answers ethically, i.e., in terms of how we should treat one another is also knowable. Thus, the political question, “What is the proper relationship between law and morality?,” can be answered objectively. It is simply a matter of objectively defining the principles of a proper social system.8 This, then, brings us back to the metaphysical and epistemological questions: What is law? What is morality? How do we know it? For the sake of brevity, I will not argue for, but will assume the validity of, Rand’s “benevolent universe” premise since without it, any attempt to answer these questions would be futile.
What is Law?
Law is an objective concept
Rand9 asserted that the only legitimate purpose of government is to bar force from social relationships. She maintained that this is the only moral justification for government and the only reason men need government. A government, she contended, is an institution tasked with objectively controlling the retaliatory use of force according to objectively defined laws. Rand 10 argued that nothing that cannot be expressed as objective law can be legislated in a free country governed by laws, not men. She insisted an undefinable law is not law at all. It is nothing but a license for some men to rule over others. Objective laws protect freedom. Rand11 insisted that non-objective laws provide the opportunity statists seek to impose their will, their polices, their interpretations, their decisions, their enforcement and their punishment or favor on unarmed, defenseless victims.“Non-objective law is the most effective weapon of human enslavement: its victims become its enforcers and enslave themselves.”12
Mill13, too, argued that the only moral justification for government is to protect the members of society from harm from other members of society. However, his standard of value was diametrically opposed to Rand’s. Mill’s standard of value was utility. Rand’s was life itself. Mill’s 14 concept of liberty as applicable only to men in the advanced state of civilization in which man finds himself today runs contrary to reason and, thus, to Rand’s philosophy. Rand insisted that man qua man survives only by virtue of his rational faculty. Mill’s claims seem dogmatic and arbitrary. Stephen 15 recognized the generally dogmatic and arbitrary nature of Mill’s claims and specifically called into question his claim that despotism “is a legitimate mode of government when dealing with barbarians, provided the end be their improvement.”16 Rand would strenuously object to this claim. Only when free to choose can man survive and thrive, she would argue.
Law Is a Negative Concept
According to Bastiat,17 to say that the purpose of law is to bring about justice is to misspeak. Law is rather a negative concept. Its purpose is to prevent injustice. Injustice has an existence of its own. Justice exists only in the absence of injustice. When law wrongfully uses its inherent force to impose morality upon men, it ceases to be negative, but acts positively upon man. It substitutes the will of the legislator for man’s own will and the legislator’s initiative for man’s own. Under these circumstances, men need not discuss or plan; the law does this for him. Man’s rational faculty becomes null and void. Man ceases to be man as he cases to be free. Morality imposed by force is a violation of liberty. Law cannot impose morality by force without imposing injustice.
Stephen,18 a quintessential statist, argued that law and public opinion could legitimately be used to prevent vice and promote virtue. This, of course, vividly demonstrates the point Rand19 was making when she argued that statists sought to impose their will, their polices, their interpretations, their decisions, their enforcement and their punishment or favor on unarmed, defenseless victims. It substitutes the legislators will for the will of the people and renders their intellectual capacity null and voice as argued by Bastiat. It also clearly violates Bastiat’s principle of negative law by its impositions and thus fails in its task to prevent injustice. On the contrary, as Bastiat argued, it imposes injustice.
What is Morality?
According to Rand,20 morality, or ethics is the code of values by which man guides his choices and actions that will determine the purpose and course of his life. Mill, Stephen and Devlin would all agree on this point. However, only Rand has given an objective definition. Rand21 insisted that in order to define, judge or accept a moral code, we must first answer the question: Does man need a moral code? This question precedes the question of which code of values he should adopt, she argued. It is more fundamental. It asks whether he needs a code of values in the first place and why. The answer, according to Rand, is yes – man has an objective, metaphysical need for ethics. As for which code of values to adopt, only an objective one can be morally justified. This rules out Mill’s dogmatic, arbitrary, and inconsistent code of values and Stephen’s statist code of values. Devlin22 is another quintessential statist. Like Stephen, he too claims that the law, in typically statist non-objective fashion, can be legitimately used to legislate morality. Again, this non-objective use of the law promotes injustice rather than preventing it by substituting the will of the legislator for the will of the individual, thus nullifying his rational capacity to choose, to use Rand’s and Bastiat’s arguments against Devlin.
How do we know?
Man’s most fundamental alternatives are life or death, insisted Rand.23 To live is his most fundamental choice. If this is his choice, a rational morality will guide his actions to the realization of his choice. If he does not so choose, nature will soon dispose of him. “The purpose of morality is to teach you, not to suffer and die, but to enjoy yourself and live.”24 One might say, borrowing Kant’s vocabulary, that man’s only moral imperative is to think. However, argued Rand,25 to say this is to equivocate. There are no moral imperatives. Morality is a choice. It cannot be forced. Morality is not obeyed, but understood. To be moral is to be rational and reason does not abide by commandments.
Rand26 also argued that the claim that morality is social and that man would thus have no need of it on a desert island was empirically false:
Let him try to claim, when there are no victims to pay for it, that a rock is a house, that sand is food will drop into his mouth without cause or effort, that he will collect a harvest tomorrow by devouring his stock seed today—and reality will wipe him out, as he deserves; be bought and that thinking is the only coin noble enough to buy it.27
What a moral code does, Rand28 explained, is to teleologically measure man’s choices and grade them according to the degree to which they promote or hinder the standard of value of his code. The standard is his end, she argued, and his actions are his means. In order to put an abstract moral code or clothing, that reality will show him that life is a value to a set of moral principles into practice, man must translate them into actions – actions in the pursuit of values. To this end, he must define a hierarchy of values in order of importance and then act on them accordingly.
According to Stephen,29 it is not possible to know. Stephen claims that “it is almost impossible to make any true general assertion whatever about [liberty].”30 Stephen’s skepticism comes as no surprise, considering his non-objective approach to the subject. The problem with his claim that “it is almost impossible to make any true general assertion whatever about [liberty].” 31 is that it is a self-refuting claim. Stephen has gone to great length to make general assertions about liberty and claims, as most skeptics do, that his assertions are generally, if not always correct, despite his skeptical claims that “it is almost impossible to make any true general assertion whatever about [liberty].” 32 As is typical of skeptics, Stephen’s skepticism is suspended when it comes to his own general assertions about liberty.
What is the proper relationship between law and morality?
Morality concerns only those actions of man that are within the scope of his free will or his ability to choose, argued Rand.33 “A sin without volition is a slap at morality and an insolent contradiction in terms: that which is outside the possibility of choice is outside the province of morality.”34 Rand35 also argued that if man were evil by birth, then he would be without will or power to change it. Thus, he could not be considered moral or immoral, but, rather, amoral. “To hold, as man’s sin, a fact not open to his choice is a mockery of morality.”36
Rand37 argued that despite man’s “irrationalities, inconsistencies, hypocrisies and evasions,” 38 when it comes to the major issues, he will generally act with a sense of morality and not against it. He may, from time to time, neglect to do so, or do so halfheartedly, but he will not oppose it. When he does fail to uphold it, she asserted, he will generally recognize his failure and accept responsibility for it. “The power of morality is the greatest of all intellectual powers—and mankind’s tragedy lies in the fact that the vicious moral code men have accepted destroys them by means of the best within them.” 39
The objective nature of law is such that it is intended to protect liberty. The law acts negatively by preventing any impediment to liberty. The objective nature of morality is such that it is essential to human life. We know this because, absent the liberty to choose life and act upon that choice, man faces certain death. Thus, if not at all times, then frequently enough to survive, man will acknowledge and abide by moral principles. He knows empirically the cost of ignoring them altogether. The proper relationship between law and morality is one of objective, negative law that allows man his moral agency, but does not attempt to force morality on him. The nature of morality is such that it cannot be commanded or obeyed, it must be freely chosen and understood. To be moral is to be rational and the nature of reason is such that it does not abide by commandments.
Bastiat, Frederic. The Law. New York: The Foundation for Economic Education, Inc., 1990. Print.
Binswanger, Harry. The Ayn Rand Lexicon: Objectivism from A to Z. New York: Meridian, 1986. Print.
Devlin, Patrick. “The Enforcement of Morals.” Philosophy of Law. Ed. Frederick Schauer and Walter Sinnot-Armstrong. New York: Oxford University Press, 1996. 338-43. Print.
Mill, John Stuart. “On Liberty.” Philosophy of Law. Ed. Frederick Schauer and Walter Sinnot-Armstrong. New York: Oxford University Press, 1996. 310-13. Print.
Stephen, James Fitzjames. “Liberty, Equality, Fraternity.” Philosophy of Law. Ed. Frederick Schauer and Walter Sinnot-Armstrong. New York: Oxford University Press, 1996. 314-19. Print.
1 “The Objectivist Ethics,” The Virtue of Selfishness, 13
2 “Philosophy: Who Needs It,” Philosophy: Who Needs It, 4
3 “‘Extremism,’ or The Art of Smearing,” Capitalism: The Unknown Ideal, 178
4 “The Ethics of Emergencies,” The Virtue of Selfishness, 48
5 “The Ethics of Emergencies,” The Virtue of Selfishness, 48
6 “The Inexplicable Personal Alchemy,” Return of the Primitive: The Anti-Industrial Revolution, 122
7 “The Inexplicable Personal Alchemy,” Return of the Primitive: The Anti-Industrial Revolution, 122
8 “Philosophy: Who Needs It,” Philosophy: Who Needs It, 4
9 “The Nature of Government,” The Virtue of Selfishness, 109
10 “Vast Quicksands,” The Objectivist Newsletter, 28
11 “Antitrust: The Rule of Unreason,” The Objectivist Newsletter, Feb. 1962, 5
12 “Vast Quicksands,” The Objectivist Newsletter, July 1963, 25
13 “On Liberty,” Philosophy of Law, 310
14 “On Liberty,” Philosophy of Law, 311
15 “Liberty, Equality, Fraternity,” Philosophy of Law, 316
16 “Liberty, Equality, Fraternity,” Philosophy of Law, 316
17 The Law, 29
18 “Liberty, Equality, Fraternity,” Philosophy of Law, 317
19 “Antitrust: The Rule of Unreason,” The Objectivist Newsletter, Feb. 1962, 5
20 “The Objectivist Ethics,” The Virtue of Selfishness, 13
21 “The Objectivist Ethics,” The Virtue of Selfishness, 13
22 “The Enforcement of Morals,” Philosophy of Law, 341
23 “Causality Versus Duty,” Philosophy: Who Needs It, 99
24 Galt’s Speech, For the New Intellectual, 123
25 Galt’s Speech, For the New Intellectual, 128
26 Galt’s Speech, For the New Intellectual, 127
27 Galt’s Speech, For the New Intellectual, 127
28 Introduction to Objectivist Epistemology, 42
29 “Liberty, Equality, Fraternity,” Philosophy of Law, 319
30 “Liberty, Equality, Fraternity,” Philosophy of Law, 319
31 “Liberty, Equality, Fraternity,” Philosophy of Law, 319
32 “Liberty, Equality, Fraternity,” Philosophy of Law, 319
33 “Playboy’s Interview with Ayn Rand,” March 1964
34 Galt’s Speech, For the New Intellectual, 136
35 Galt’s Speech, For the New Intellectual, 136
36 Galt’s Speech, For the New Intellectual, 136
37 “Faith and Force: The Destroyers of the Modern World,” Philosophy: Who Needs It, 67
38 “Faith and Force: The Destroyers of the Modern World,” Philosophy: Who Needs It, 67
39 “Faith and Force: The Destroyers of the Modern World,” Philosophy: Who Needs It, 67