The World of Law in Philosophical Reflection

Morality and Legal Order through the Lens of Practical Philosophy

As noted by the renowned economist and philosopher of Austrian descent, Friedrich Hayek (1899-1992), the concept of order, akin to its nearest equivalents—system, structure, and model—presents considerable challenges in comprehension. To avoid becoming mired in definitional quandaries and to advance the discourse on the stated topic, we may initially confine ourselves to the dictionary definition of "order," understanding it as a certain regularity, an established spatial-temporal coordination and subordination of elements within the world or its segments.

The social world, along with that portion of the natural environment engaged by humanity in their vital activities, constitutes the realm of social order. This indicates that within this slice of reality, the primary ordering agent is humanity itself. Consequently, any weakening or cessation of human endeavors aimed at maintaining or transforming order results in disruption of social life. The scope of the term "social order" can be narrowed by excluding artifacts as well as natural phenomena and processes. Thus, social order may be understood as the established types of coordinated interactions among people, regulated by spontaneously formed or consciously established rules. Given that numerous slices or spheres of social life can be delineated, each also embodies characteristics of orderliness. There exist social phenomena that do not merely coexist with others but seem to vertically intersect the entire social fabric, as they contribute to the formation of order in every sphere of activity. Among these are morality and law.

Since antiquity, morality, law, and politics (with an emphasis on morality) have been associated with a complex of actions and deeds termed "praxis." Aristotle distinguished between creation and execution, otherwise known as ποίησις (poiesis) and πραξις (praxis). Poiesis (creation) involves the making of something and its ultimate product (e.g., a house), whereas praxis pertains solely to the activity itself, devoid of productivity, representing pure execution (e.g., playing a musical instrument). Actions within the realms of morality, politics, and law are akin to such activities, wherein individuals are guided by their own will and conscious choices, possessing the volition to act or refrain from acting. Corresponding to praxis is the quality of phronesis (φρουησιζ), which pertains to human affairs, associated with the ability to make reasonable decisions. Phronesis is not a science that can be discovered in books; it is acquired through individual experience.

Thus, the sphere concerning human actions towards one another has been linked since antiquity with "praxis," or as the English philosopher George Moore (1873-1958) termed it, with "vital practice." The term "practical philosophy" is conventionally used to refer to philosophical reflection upon this sphere. In modern times, this tradition was reaffirmed by David Hume, who similarly divided philosophy into speculative and practical, and particularly by Immanuel Kant, who classified theoretical philosophy as the pursuit of a priori principles governing the cognitive faculties of the soul, while practical philosophy pertains to the search for a priori principles of will or desire.

With these clarifications made, let us turn to the relationship between moral and legal order, bearing in mind that the moral foundation provides the moral form of social order, while the legal aspect confers its legal form, and that these two universal forms of human coexistence are interrelated and mutually fulfilling. The relevance of exploring this line of reasoning is underscored by the occasional sense of forgetfulness regarding such connections, which the classical thinkers of practical philosophy always remembered. Let us consider a few examples in this regard.

In the structure of factors determining the path to happiness, Aristotle, as previously mentioned, turns to praxis, that is, to active engagement within a community of equals. Order in society is attained through the convergence of two branches of order: ethos (the set of ethical virtues of the individual) and state law. The pinnacle of moral development is καλοκαγατια (kalokagatia) or moral beauty, which shines through virtues such as temperance, justice, and courage, and is shaped through experience. However, this is merely the beginning, the source of human actions. For the good of society and the state, individuals also require state law, which consists of natural and codified law. Only through the combination and interaction of these two necessities (ethos and law) will human social life be ordered, with responsibilities, goods, and burdens distributed justly. Furthermore, Aristotle may be regarded as one of the first to articulate the idea of the rule of law. Thus, in his "Nicomachean Ethics," he wrote: "We allow not a man, but the word of the law to govern..." In such a state, "the ruler is the guardian of justice, and since it is justice, it is also equality in fairness."

The modern era, as is well known, has emphasized the role of reason within the complex of factors determining social order as a whole, placing greater responsibility on the individual subject, the bearer of reason, for their actions within the public sphere and in their choice of life stance. In a distinct manner, yet entirely in the spirit of his time, Baruch Spinoza addressed the connection between morality, law, and politics, as previously discussed in the first part. It is worth recalling that Spinoza focused on the interplay between natural law, the law of supreme authority, and freedom. Natural law is grounded in the laws of human nature, and therefore all individuals possess it under any circumstances. Undoubtedly, social existence imposes certain constraints on human actions, but even binding limitations have their limits: supreme authority cannot elevate incompatible demands with human nature to the level of law. In cases of violation of this principle, the concept of crime may also be applied to the state. However, out of its instinct for self-preservation, the state, relying on reason, governs its actions in accordance with natural law. Social order is ensured where rights are respected, where a culture of law is developed, and where a means of exercising authority is established such that individuals feel they are not ruled but live according to their own free decisions.

Without delving into a detailed examination of Immanuel Kant's moral and legal doctrine, it is only necessary to note that his thoroughly developed ethics of duty is to some extent directed towards exploring the conditions that prevent a descent into "a war of all against all." For Kant, the foundation of human actions lies in the will, which can be influenced by reason in its practical aspect. The true aim of such reason is to affirm the will as rational and good. Kant is convinced that a good will is one that is aligned with duty. The mutual correlation between morality and law is based on the notion that they represent two types of legislation in the realm of morality: when laws pertain primarily to external coercion, they are termed legal; whereas laws of morality, characterized by internal compulsion, are referred to as ethical. The categorical imperative of practical reason serves as a means of legitimizing the entire normative system of society and can guarantee civil peace and order. Law must be in accord with the ethics of duty, meaning that legal and moral obligations ought to coincide, and although some parallelism persists, ideally actions should not only be lawful but also moral.

In Hegel, as in Kant, the will serves as the starting point of the moral-legal conception. Law emerges from the embodiment of the will in external objects, leading to appropriation and ownership. However, the will of the individual is also manifested within the internal world of the person. This constitutes morality. Moral will is expressed through actions. Since law lacks subjectivity while morality lacks objectivity, both converge in moral substance. The moral dimension that synthesizes law and morality is realized within communities such as family, civil society, and the state.

The examples provided illustrate that many prominent thinkers have defended the interconnection between morality and law as forms of representing the social order. When addressing the relationship between the moral and legal orders, we also assume the existence of such a connection. Ultimately, within any legal system, one can identify a moral foundation that supports it, which can be activated, problematized, and actively debated during pivotal moments in the development of society and in times of crisis. During such periods, the moral underpinnings of the political-legal regime are laid bare. The connection between morality and law is further seen in the fact that any legal norm carries greater authority when it garners support from the moral consciousness of the majority and aligns with the established fabric of everyday communal life, known as custom.

However, if we insist on the existence of a close relationship and mutual penetration between law and morality, does it make sense to distinguish between the legal and moral orders? Would it not be better to speak of a unified moral-legal order? It seems that such a sense exists and is either implied or even articulated in contemporary practical philosophy. When we seek to autonomize either the legal or moral order, we rely on the principle of the autonomy of law and morality demonstrated by many authors. The concept of moral order primarily characterizes interactions among individuals in the realm of private life, in the lifeworld, the world of the quotidian. It is even difficult to imagine the extent of the devastating consequences for society if anyone ever succeeded in imposing a legal cover over the entirety of our lives. Total legal regulation under a regime of ubiquitous control and inevitable punishment would render social life intolerable. The appropriate domain for legal regulation is the public sphere, a "distant" intersection of individuals' interests as subjects of socially significant activities. However, it is worth considering that in the context of underdeveloped law and a lack of tradition in upholding it, there is a transference into the public sphere of communication skills cultivated in the private realm. Might this be one of the reasons for the difficulties in applying legal influence to combat corruption in certain societies?

In distinguishing the moral and legal orders according to their predominant spheres, we can also underscore their divergence in terms of their mechanisms of composition. The former emerges spontaneously, whereas the rules (principles) of morality, while it is not possible—as noted by Friedrich Hayek—to deliberately construct and impose them, can indeed be discovered, formulated in specialized language, and thereby impart moral education to people, which undoubtedly strengthens the moral order. The legal order, based on positive law, is known to be formed under the active influence of conscious intent.

The distinction between moral and legal orders is present in philosophical discussions concerning the priority of morality or law regarding the principles that should govern social life. Contemporary liberalism, for instance, asserts the priority of law over the good (as noted by John Rawls). Countering this position, the American political philosopher Michael Sandel contends that any political order is laden with values. But whose values are these? There is no privileged perspective, no transcendental subject capable of occupying a position outside of society and experience. Thus, whose notions of law shall we base our principles for organizing society upon? Critics of liberalism tend to believe that a democratic society should possess some widely accepted definitions of a virtuous life, as maintained by Canadian philosopher Charles Taylor.

The trajectory of the discussion leans toward the conclusion that if we start from the interconnectedness of morality and law yet construct a theory of social life based on the primacy of morality, we will more likely arrive at a moral order that has received legal articulation. Conversely, if we prioritize the legal order, we will merely encounter a pure legal order adorned with moral considerations. Perhaps the correct approach to evaluating the relationship between legal and moral foundations lies, as is often the case with extremes, somewhere in the middle.