Pros & Cons of Legal Moralism
Legal moralism is a theory of jurisprudence that holds that a society should enforce its collective morality through the body of law. This theory is often contrasted with legal positivism, which holds that laws should remain distinct from questions of morality and simply enforce the rules society sets out in order to function. The principle proponent of legal moralism was the late Lord Devlin, a British judge who argued that for society to function it must be able to enforce its own view of morality.
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Pro: The law acts as a support for society
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The principle argument of legal moralism is that in order for a society to properly function, it must be able to enforce its collective morality. Therefore, a society will create a body of law that reflects its own morality and values and protects those interests. This will supposedly increase social cohesion and the sense of community throughout the population. Moreover, the argument is that a strong link between law and morality can guard against a society's laws becoming unjust or tyrannical.
Pro: The law becomes more accessible
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One advantage of having the law as a direct representation of common morality is that it becomes more accessible to the general population. This means that general comprehension of the law and its purpose in society would increase, and individuals would feel more personally connected with it.
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Con: Finding common morality
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The biggest limitation of this theory is its reliance on the existence of a common morality in society. Legal moralism assumes that a society has a single common morality. In reality, however, a society is made of many distinct identity groups, many of whom hold alternative views of morality. Given this, it would be extremely difficult to reach an acceptable consensus on a wide range of moral issues.
Con: Not all laws have moral dimension
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Legal moralism accurately describes crimes like murder or theft, in which there is a clear moral dimension. However, the body of law covers numerous areas of regulation with no clear moral implications. It is difficult, for instance, to derive tax codes and building height restrictions from an individual's morality.
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