Morality v. Law

The words morality and ethics both derive from the concept of “customary good behavior.” One word comes from the Latin, the other from the Greek. In our times we prefer to use ethics, e.g., in phrases like “business ethics.” The reason for this is that the Latin word is too closely associated with religion, a vast cultural domain we also now look down upon; and, indeed, when people speak of immorality, they usually mean sexual behavior. The “customary” also ranks low with us because customs and traditions often sanction ways of behavior which we now find unacceptable—especially in the way women have been deprived of equal status in the past. I acknowledge the deficits of custom. Any and all collective products of the human mind are prone to failure, customary law as much as anything else.

But while traditional ways often carry within them prejudices that are obviously wrong, there is a quality in custom, thus in morality and ethics, that stands in a superior relationship to contract-based legality, what might be called procedural justice based on law.

I offer this as a thought, nothing more. Ninety percent of useful insights can be absolutely confused, deformed, and rendered incomprehensible by digging into the available scholarship. After thirty pages, you kind of shake your head.

Put very simply, a moral judgment of anything is a synthesis of rational and intuitive insights reached often enough by humans in the past to carry a certain weight. But, and I want to emphasize this, in these judgments, the decisive element is always the intuitive. The intuitive element reflects an innate knowledge in us, something arising from the deepest level.

Thus when we read in the papers about some abuse or another, perpetuated because it is legal, the reason why we consider it an abuse, however legal it may be, is because our moral sense dismisses the procedural elements in it, the very things that make it legal. And we are then prone to say, “I don’t care what they say, I still think that it’s wrong.” Thus we criticize the laws. We say: “That’s not the kind of thing they really had in mind,” and by they we mean the legislators. We cut them slack.

Now in a society where you cannot cut through the tangle of legalities without a lengthy process—and where the process is always very costly—ultimately the law loses its meaningful force. And, indeed, we don’t have available to us, at every appropriate level, judicial forums where a Solomon can resolve the conflict by cutting through the tangle of precedents and their infinite radiations by going right for the jugular of the problem. The ultimate consequence of this is the feeling that we’re up against something oppressive and inhuman—which we can only fight with a bottom-less purse.