8 | FOR THE SEPARATION OF MORALITY AND LAW

IN MY VIEW THERE are two quite effective antidotes for morality, namely, love and law. In chapters 8 through 10, I discuss the latter of these. I argue that laws and the legal system not only have the capacity to function amorally, but that they already do, at least to a certain extent (as has been pointed out by, for instance, William Rasch, Richard Nobles, and David Schiff),¹ And I argue that this is not detrimental, but rather a part of their evolutionary development. That is, the legal system evolved in such a way that it was able to separate itself from morality, and this separation seems to have made it more effective and up to date.

An obvious objection to my defense of the separation of morality and law would follow the line of the argument of the Christian pastor mentioned in the introduction who claimed that a vicious sexual serial killer could only be condemned on the basis of religious (or, more precisely, Christian) values. A secularized version of this argument would be that we do not necessarily need a religious grounding for legal decisions (and prosecutions), but we certainly need an ethical one. We must first come to some sort of agreement on what is “just” in an ethical sense before we can establish a social mechanism that puts justice into practice. Justice seems to be the basic moral value that the legal system subscribes to and uses to justify its existence, powers, and aims. How could one possibly separate the legal system from the moral value of justice? Would this not be entirely paradoxical and against the self-definition of the law?

I see things rather differently. I think that the argument from morality is as misguided—and for basically the same reasons—as the Christian pastor’s argument from religion. What they have in common is what could be called a historical fallacy. Both arguments imply that the history of law determines its present state. Both arguments are blind to the evolution of the legal system. While they have some historical validity, they both fail to take into account that the times they are a-changin’.

Undeniably, in both Eastern and Western history, law and religion, as well as law and morality, used to be closely interrelated. This is equally true for Confucian China and the civilizations that identified themselves with any of the three Abrahamic religions (Judaism, Christianity, and Islam). All the Abrahamic religions hold a very close relation between the divine and earthly law. Human law tends to be seen either as an immediate divine decree or as an earthly application of divine principles. Most famously, the Ten Commandments represent this kind of inseparability of law and religion. The sharia law that is still practiced today in several countries and communities continues this tradition of identifying sin with crime. It is a crime to kill because killing is against God’s will—except in such cases, of course, where killing is declared to be exactly the opposite, namely a religious and, by extension, legal duty that executes the will of God. It should be noted, however, that it is still difficult to say if in such cases religion determines what is law, or if it is perhaps equally possible to see it the other way around. Is the law produced by religious beliefs, or do legal instincts produce certain religious ideas. Instead of hastily attributing a certain status to one or the other, it is perhaps more prudent to simply state that legal and religious beliefs were (and in some cases still are) undifferentiated.

The modern separation of state and religion—that is at the core of American political self-description and (if not to an even higher degree) characterizes contemporary developments in Europe and other parts of the world—went along with a separation of law and religion. From time to time U.S. judges may try to preserve the presence of Christian symbols in their courthouses, but this is not a generally accepted practice. The law is supposed to be religiously neutral and, given the multireligious societies that are now so prevalent in a globalized world, it is explicitly not faith-based in many countries. While religion and the law certainly share a common past, their separation has become a social fact around the globe. Their union is now history, a history that few want to revive. Of course, exceptions exist (for instance Afghanistan under the Taliban), but these are generally met with suspicion and tend to be seen as rather backward or even medieval.

I think that the argument from morality is a secularized version of the argument from religion. Consequently, it is a historical rather than a foundational argument. In time it will probably become as obsolete as the argument from religion is today. A decoupling of ethics and law has already followed upon the decoupling of law and religion. It looks as if this evolution of the law toward more and more religious as well as moral autonomy is to continue and intensify.

Certainly there were, and still are, cases in which the term “justice” had, at the same time and indistinguishably, a religious, ethical, and legal meaning. Nowadays these meanings have become increasingly distinct. Only a few people in Western countries identify legal justice with divine justice. Fewer and fewer people, I dare to speculate, identify ethical justice with legal justice. And I don’t see this cynically as an effect of crafty and immoral lawyers, but, on the contrary, the evolution of an amoral legal system. In the course of the secularization that took place during the Enlightenment, there was a transition from a religious to an ethical understanding of justice. In our times of an increasingly functionally differentiated society there is a transition from an ethical to a legal understanding of justice. Justice is now more and more accepted as a legal value that is produced within the legal system. It no longer needs direct input from priests or from ethics professors to identify what is just (or, rather, what is legal). A judge is no longer necessarily expected to know what is religiously or morally just, but what is and is not in accordance with the law. Just as no judge in Europe or North America is supposed to judge a case on the basis of her interpretation of the Bible, the Torah, or the Koran, no judge is expected to decide a case on the basis of her interpretation of Kant, Bentham, Habermas, or Rawls. In fact, religious practice, regardless of the type, is not a qualification for becoming a judge. Similarly, one does not become a judge on the basis of one’s familiarity with the categorical imperative. Again, this is not to say that neither the Bible nor Kant had any influence on the history of law, but this influence is historical. Legal practice in Europe and North America (as well as in many other regions in the world) normally does not come to decisions on the basis of religious scriptures or through consultation with theological experts, nor does it do so by studying the classics of moral philosophy and consulting with their professional interpreters. And I think that this is, in a practical sense, good. I would want to be tried neither by a religious tribunal nor by a committee of Kantians. Legal decisions are now usually arrived at by looking at other legal decisions and texts that were produced in the legal system itself. The legal system has developed the ability to identify what is just and legal. It no longer relies on religious or moral scriptures, but can distinguish between legal and illegal on its own terms.

Within the legal system there are a number of system-internal distinctions made with respect to the act of killing: homicides of various degrees, manslaughter, different kinds of carelessness leading to the death of others, and so on. None of these distinctions is primarily religious or moral. Someone who commits manslaughter is not deemed less evil than a murderer by a court, but guilty of a lesser crime. Even if people often talk metaphorically about crimes that are more or less evil, the law cannot really measure such moral quality. There is a hierarchy of severity with respect to crimes, and the legal system has to decide in every case about the legal and not the moral categorization of a crime.

Another, and perhaps better, example is stealing. Hegel criticized Kant and the notion of the categorical imperative with reference to stealing, and I referred to this criticism in chapter 6. Here I look at it from a slightly different perspective. According to Kant, stealing is, on principle, immoral because no one can wish that the right to steal should become a universal law. Hegel, however, points out, that the very notion of stealing depends on the contingent definition of what constitutes property.² Only property can be stolen, but what is property? Is property limited to goods, or can, for instance, land also be considered property? How about other resources such as water and air? How about intellectual property? Or private property in general? Is private property on principle more or less moral than public property? Is nationalization stealing from individuals; is privatization stealing from the public? Can taxes be considered as stealing money from individuals? Is tax evasion stealing from the public? All of these questions depend on socially and historically contingent legal evaluations. There is no universal principle that can define the nature of property and, consequently, the moral and legal characterization of stealing. What is legally considered to be stealing cannot be derived from any moral principles. The law has to distance itself from Utopian moral categorical imperatives in order to be able to deal with these cases. It has to build up internal complexity, for example by constructing a very complex range of definitions of property and stealing, in order to be able to deal with such issues in contemporary society. A law that would deal with these situations in a Kantian manner would function poorly and primitively. It would not be able to do justice—in a legal and not moral sense—to the complex problems regarding ownership in today’s society.

This means, of course, as well that what is legal or legally just is not necessarily religiously or morally just. Again, I think that this is much preferable to a situation in which religious, moral, and legal justice are congruent. The diversification of justice is socially beneficial since it allows for much greater complexity than a single transcendent justice. I think it is as impossible to characterize the justice that is produced in the legal system in terms of any religion as it is in terms of any moral philosophy or specific set of moral values. Simply put, the speed limit or the legal amount of alcohol present in the blood can neither be deduced from the Bible nor from Kant. Trying to do this would be absurd.

In our society, the law is no longer influenced primarily by religious or moral beliefs. It exists within the highly complex environment of a number of other systems, including the economy, politics, mass media, medicine, education, and science. None of these systems functions in a specific moral or ethical manner. All of them, however, factually exert great influence on the law and vice versa. The law has to consider—in its own terms—what goes on in all of these other systems. Just as it has to deal with issues concerning property (in the economy), it has to deal with the contingency and complexity of what goes on in other systems. It has to define laws for election processes, for the media, for medicine, and so on. Is, for instance, an election format based on proportional representation more moral than one that is not? Are elections in the United States more or less good than those in Germany? None of these questions can be reduced to ethical categories alone.

On the one hand, the legal system has to deal with the social systems in its environment. On the other hand, the other systems are also more or less dependent on the law for their own functioning. And again, this is not a moral issue. Politicians, for instance, rely on the law to define the right election process so that an election can actually be held regardless of its assumed moral character. Many of those who think that a mixed membership parliament would be more just still vote in Canada, even though such a system is not in place. Corporations normally obey legal decisions, even if they find them unfair. Every other system profits from the clarity of legal decisions—and from their changeability. Systems would overburden themselves if they had to constantly question the moral validity of their rules. They simply follow the law—and try to change it if they want.

There is a case that illustrates the demoralization of law quite nicely. When I was a teenager in Germany in the 1970s I liked to watch a TV show called Marriages at Court (Ehen vor Gericht). It was a “serious” documentation of real divorce cases that was very different in character from the current Judge So-and-So shows. It consisted of reenactments of court scenes and legal commentaries and analyses. The show was interesting because of what German law was like at the time. In a divorce, the court had to determine which of the spouses was “guilty” (for instance, because of cheating). The one who was found guilty usually could not claim much financial support, so there was a lot at stake. (I remember noticing at some point that I always sympathized with the man and never with the woman, regardless of who had been the cheater. I also remember listening with fascination to my parents and relatives gossiping about divorcees in our town and saying things like: “She is divorced—and she was found guilty!” At that time there was still a significant social stigma attached to being divorced, not to mention being the guilty one.) The show came to an end when German divorce law was radically reformed. It seems, due in no small measure to feminist efforts, that the old laws were found to be highly problematic and often unjust, particularly given the social reality at that time when married women tended to give up their careers and thus became economically dependent on their husbands. If a wife was found guilty this could easily mean financial ruin and the loss of her children, since she would not be able to support them.

But the main problem with the old law was not so much its (perhaps unintended) unfairness to women, but the fact that naming one of the parties guilty is not so much a legal as a moral decision. Cheating is not really a crime if one looks at it from a nonreligious and amoral perspective. Cheating (not to speak of other supposed spousal shortcomings that were pointed out in various cases by the competing lawyers) may be a sin or evil, but it is very hard to identify it as illegal on the basis of contemporary law. It became harder and harder to provide legal criteria for proving the guilt of one spouse and the innocence of the other. This is often quite easy when moral or religious judgments are applied, but what constitutes guilt and innocence in a very complex intimate relationship? The law came to understand that it was dealing here with matters that were simply outside its purview. The German reform of the divorce law then abolished the guilty/innocent distinction altogether so that the courts now regulate financial and childcare matters without recourse to these categories. (They do, of course, have to take the illegal actions of a spouse into account, such as the use of physical violence.)

I think the reform of German divorce law shows very clearly how the legal system has decoupled itself not only from religious creeds but also from moral evaluations. Moral judgments or values do not parallel legal criteria and they can easily become an obstacle within legal procedures. The old German divorce law overburdened the judges with moral questions and led the lawyers of the opposing spouses to introduce moral accusations into their arguments. The new law acknowledged the fact that the legal system had decoupled itself from moral discourses and had to apply its own criteria rather than rely on vague considerations about what was morally decent. I, for one, am quite happy to live in a society where one spouse cannot bring the other to court for cheating. (In the United States, one has the equally unappealing possibility of going on a TV show like Jerry Springer or Cheaters, but this is an issue for the chapter on morality and the mass media.)

In order to clarify what I mean by the separation of law and morality, I present a parallel example, namely the separation of rules and morality in sports. In sports, the equivalent of justice is “fairness.”³ And I think that just as legal justice should not be equated with moral justice, fairness in sports is not to be equated with moral fairness. The fairness of sports rules differ very much from, for instance, ethical fairness as defined by John Rawls. Rawls’ model is, simply put, based on the hypothetical idea that fairness is constituted by the agreement or consensus that would be reached by all members of a society or community regardless of their actual status within this community (that is under the condition of the famous “veil of ignorance”). It would then, according to Rawls, be in everybody’s interest to agree on rules that would be acceptable for them independent of their role in society. They would necessarily have to agree to rules that would be fair to all members of society, because if the rules were not fair in this sense, everyone would run the risk of ending up in a social position (a woman, a handicapped person, etc.) that would be subject to unfair treatment. Rawls’ idea of fairness is to a certain degree quite Kantian in that it presupposes some transcendental or a priori status of fairness. Rawls’ hypothetical fairness precedes social practice. It is grounded in some sort of (hypothetical) fundamental consensus that is both prelegal and extralegal. Concrete laws would have to be constructed according to principles that are not ultimately derived from the legal system itself but from Rawls’ philosophical definition of “fairness.” In order to be fair, laws and other rules must correspond with the ethical principle identified by the ethicist. The standard for what is legally fair, or, in other words, just, is thus not a legal but an ethical standard that is more fundamental than law itself. I think that neither legal fairness (i.e. Justice) nor fairness in sports functions in a Rawlsian way in our society. And I think it should not function in such a way. Or in Wittgensteinian terms: If we use the word “fair” in everyday language, we do not mean an a priori fairness. We use it in a relative sense. By calling something fair, we normally think that it is not absolutely fair but fair enough.

I use the example of basketball to illustrate my point. Most people would agree that the rules of basketball are reasonably fair. In fact, everyone who competes in this sport, to a certain extent, implicitly accepts the fairness of the rules. Obviously, if a player did not think the rules were fair and refused, for instance, to accept a penalty for a foul or some other violation of the rules, she would not play the game for long. However, it would be absurd to state that the rules of basketball are fair in Rawls’ sense. Obviously, given the veil of ignorance, people would probably have a major problem with the height of the baskets, since it gives an unfair advantage to the very tall. Most are not fairly treated by the standardized height. It would be much fairer, in a Rawlsian sense, to calculate the height of the baskets on the basis of the average height of the players on all the teams.

Virtually every sport includes rules that are fundamentally unfair in the Rawlsian sense. Some give advantages to the tall, some to the fast, and others to the strong. In fact, I think it would be rather difficult to identify a single rule in sports that is fair in accordance with the veil of ignorance. Nevertheless fairness remains a widely acknowledged principle in competitive sports. It is clear that fairness functions well enough without being justified on the basis of ethical principles. To state that those rules that are accepted as fair in sports must be derived from ethical deliberations would be absurd. Of course, as I say throughout this book, I do not mean that the rules in sports are unethical or immoral, only that they are nonethical or amoral, and that this is precisely why they function well. I do not think that sports could ever work on the basis of a foundationally ethical principle of fairness as the one suggested by Rawls (or any other moral philosopher). The notion of fairness in sports is developed within the system of sports. It is the system of sports itself that has produced its own standards of fairness, which have no direct or causal relation to any specific set of moral principles. They cannot be derived from Rawls, Kant, Bentham, or Habermas. This makes them very dynamic: They can evolve, they can change, and yet they are still stable in the sense that most people who are affected by them accept them rather happily. Nobody who plays basketball has to care about the congruence of the rules with any given moral or religious doctrine. And I think that this makes playing and watching basketball a lot more fun than if it were otherwise.

Niklas Luhmann has, in his characteristically reader-unfriendly manner, coined the concept of a contingency formula to explain the function of the notion of justice in the legal system. In exactly the same sense, I suggest, fairness can be called the contingency formula in sports. A contingency formula is a rather paradoxical thing. It is necessarily contingent; that is, it is subject to constant change and not based on any determining principles. No one can ultimately define what is “just” in the legal system or “fair” in sports. This is decided within the respective systems, in terms of the specific system, and these decisions change from day to day. What is legal today can easily be illegal tomorrow and obviously the same is true for what is considered fair in sports. Despite (or, paradoxically, exactly because of) the contingent nature of a contingency formula, it serves the function of making “something that is seen as highly artificial and contingent from the outside appear quite natural and necessary from the inside.” In the legal system, justice is taken for granted as that which all legal procedures aim to establish: “The system itself has to define justice in such a way that makes it clear that justice must prevail and that the system identifies with it as an idea, principle, or value. The formula for contingency is stated within the system non-contentiously.”⁴

From the outside, the philosophical observer can see that neither legal justice nor fairness in sports is derived from any noncontingent (moral) principles. At the same time, one can also observe that the contingency formulas as such are (normally) not contested within the systems. What is specifically deemed just or fair constantly changes, but this by no means diminishes the acceptance of justice or fairness as the idea behind the specific rules defined within the systems. A new law or a new rule in basketball is soon accepted as just or fair, sometimes even more so than the previous one. The contingency of the specific rules does not lead to mistrust in the justice or fairness within the systems; on the contrary, it allows for the stability of the formulas. It is the flexibility, and particularly, I would say, the amoral flexibility, of the contingency formulas that makes them so durable. Luhmann says, with respect to the legal system, that justice “is not adduced in its function as a formula for contingency but as a value.”⁵ The same is true for fairness in sports. And it is precisely the blindness for the contingency of the contingency formula and its acceptance as a noncontentious value within the system that makes it work so well. It seems, paradoxically, that it is good for athletes and judges to counterfactually believe that they act in accordance with (moral or other) values since this allows for the amoral functioning of the respective systems.

My argument for the separation of morality and law is based on the idea that the legal system is now autonomous enough to produce both the distinction between what is legal and illegal and thus the contingency formula of justice out of its own communications processes. The idea of the increasing autonomy of the law, of its capability of differing out, of distinguishing itself from other social systems, should not be mistaken as ascribing to the legal system the ability to produce its own legal (if not moral) universal principles. Some authors suggest that the legal system has become powerful enough to establish its own code (legal/illegal) within society without having to rely on other systems or its environment (moral discourse, for instance) to provide it with foundational principles. Often, however, people who suppose such an autonomy say that instead of borrowing foundational principles from the outside, the law produces (or, at least, could produce) its own foundational principles. This means, of course, that while accepting the autonomy of the legal system, one nevertheless denies the idea that justice is a contingency formula. Certain foundational rights identified within the legal system would then be just as much foundational principles as the old religious or ethical principles. These principles would be legal principles, but that makes them in no way more contingent than, let’s say, the categorical imperative or the Ten Commandments. Religious and ethical principles are thus substituted by legal principles that are also seen as universally valid. Such an argument can be heard quite frequently with respect to human rights. Human rights are often described as inalienable and immediately related to the dignity of the human being as such. In this view, such rights are believed to be legal principles that, once formulated, will serve as the foundation of justice within the legal system.

One major representative of such a view on human rights is, in my reading, Martha Nussbaum. Nussbaum looks at human rights from a feminist perspective and believes that the law, and particularly human rights law, is the most important tool to bring about equality among the sexes and to diminish the suffering of women around the world. In one particularly interesting book she discusses the not so uncommon conflicts between religious discourses or practices and women’s rights.⁶ There have existed and there continue to exist a number of religious discourses that justify the physical mutilation of the female body and even the killing of women under specific circumstances (once more, one may think of Afghanistan under the Taliban). Obviously, a dilemma arises in such cases: If one approves of such practices on the basis of the right for the freedom of religion then one will at the same time compromise what Nussbaum calls the “basic human rights” of individuals. There are situations in which a group’s claim to religious freedom may entail violations of human rights, and if this happens, Nussbaum argues, precedence must be given to individual human rights because they are the more fundamental principle. She states: “A human right, unlike many other rights people may have, derives not from a person’s particular situation or privilege or power or skill, but, instead, just from the fact of being human.”⁷

I think that such a claim is highly problematic. I am not arguing in favor of the mutilation and killing of women (or any other human being), but I do not see how such deeds can be (legally) condemned “just from the fact of being human.” From the standpoint of the moral fool, I do not see how human nature disallows killing, mutilation, or any other cruel act. Would it not be equally possible to say that human rights, if derived solely from what it means to be human, should allow for killing and mutilation because, as an empirical fact, that’s what human beings have always done. These acts seem to be an integral part of human nature—if one believes in the existence of such a thing. I think it is impossible to derive any legal principle merely from the fact of being human. Who decides which legal decisions necessarily follow from this fact? Martha Nussbaum or Osama bin Laden? How can one claim to know precisely which human rights are to be inferred from this fact? I am afraid that a position like Nussbaum’s can easily lead to a legal fundamentalism or to a “human rights fundamentalism” to use a term coined by Niklas Luhmann.⁸ It makes no particular difference if one transforms religious or ethical claims into legal claims, if one declares such legal claims to be as universally valid as the former. War can be justified as easily on the basis of the principles of human rights as on the basis of inalienable religious or moral values. What makes these principles dangerous is the very fact that they may be declared to be universally valid or fundamental. If the contingency of such contingency formulas as justice, fairness, or faith is fundamentally denied, then social conflict looms. A certain blindness is needed with respect to the contingency of justice of the legal system. If one has a role within the legal system, it is useful not to constantly question the value of justice and just suppose that the system somehow operates justly. It is counterproductive, though, if this unquestioning belief in the justice of the legal system is radicalized into a legal fundamentalism. If certain rights are declared to be fundamental or unassailable, then the contingency of the contingency formula is endangered and this, in turn, can easily lead to a loss of flexibility in the system—which makes it more prone to failure.

Here I side with pragmatists like Richard Rorty in opposing the attempts of human rights fundamentalists to define what is just, right, and legal on the basis of supposedly universal principles (as derived from such problematic notions as human nature) regardless of whether these principles are labeled religious, moral, or legal. Rorty supports the idea that the purported ability to fundamentally justify human rights has become obsolete and meaningless.⁹ In fact, we do not need any notion of human nature in order to legally condemn such acts as murder or genocide. The legal system does not have to rely on a specific definition of the human in order to distinguish between what it deems legal and illegal. It is current legal practice to call genocide a war crime and to prosecute people who are guilty of it. Just as with justice, it may not be a problem if people believe that this happens on the basis of human rights as long as they do not actually claim to have a fundamental definition and universal understanding of what these rights are. It seems to Rorty (and to me) that any foundational claim within legal discourse is not only unhelpful for coming up with a functional legal system, but may in fact be obstructive, even dangerous. If justice and human rights are tacitly (or, as one can say in German stillschweigend, i.e., “without thematizing it explicitly in the system”) accepted as a contingency formula, then the system seems to be running in a safer manner than when this is not the case.

The decoupling of the law, its separation from morality, is an effect of its ability to establish itself as an autopoietic, self-constituting system. I cannot see any empirical evidence why this decoupling from morality should be more problematic or more harmful than the identification of religious, moral, and legal values in the past. In fact, so far the separation of morality and law seems to have worked out quite well for most of those involved.