A classic problem in philosophy of law
The movie starts with a nice flashback telling the story of a boy in World-War II Germany. Young Michael Berg (David Kross) accidentally gets familiar with Hanna (Kate Winslet), a stranger, while he is so sick. Michael who is also called “Kid” is treated by Hanna who is almost twice his age. Their friendship is flourished by reading famous novels by Michael which is asked for by Hanna. One day, with no prior notification, Hanna disappears and Michael is left heartbroken. Eight years later, Michael who is a law student accidentally meets Hanna in a courtroom as defendant being accused of crimes against humanity. The law student could open his mouth to save Hanna from being sentenced to life but he decided to stay quiet. He is ashamed of revealing their friendship. The movie could be regarded as a theatre with three stages: 1-Friendship 2- Courtroom 3- Classroom. I believe the “Classroom” has a lot to say in this movie. Where is the border of legality and morality in the society? Which one should be established upon another? Which one has priority when they contradict each other? Professor Rohl in this movie is like a narrator who is doing a job in parallel to the main story. He challenges the structure of the society by stating: “Societies think they operate by something called morality, but they don’t. They operate by something called law.” The following discussion derived from Thomas Aquinas’ thoughts provides general definitions for moral principles and law.
For Thomas Aquinas, as for Aristotle, doing moral philosophy is thinking as generally as possible about what I should choose to do (and not to do), considering my whole life as a field of opportunity (or misuse of opportunity). Thinking as general as this concerns not merely my own opportunities, but the kinds of good things that any human being can do and achieve, or be deprived of. Thinking about what to do is conveniently labeled “practical”, and is concerned with what and how to choose and do what one intelligently and reasonably can (i) to achieve intelligible goods in one’s own life and the lives of other human beings and their environment, and (ii) to be of good character and live a life that as a whole will have been a reasonable response to such opportunities.
The discerning, inferring and elaborating of moral principles is a task for practical reasonableness. The judgments one makes in doing this are together called one’s conscience, in a sense prior to the sense in which conscience is the judgments one passes or could pass on one’s own acts considered retrospectively. Someone whose conscience is sound has in place the basic elements of sound judgment and practical reasonableness, that is of the intellectual and moral virtue which Aquinas calls prudentia. Full prudentia requires that one put one’s sound judgment into effect all the way down, i.e. into the particulars of choice and action in the face of temptations to unreasonable but perhaps not unintelligent alternatives.
Conscience in Aquinas’ view is not a special power or presence within us, but is our practical intelligence at work, primarily in the form of a stock of judgments about the reasonableness (rightness) or unreasonableness (wrongness) of kinds of action (kinds of option). Since each such judgment is of the form “[It is true that] action of the kind phi is always [or generally] wrong [or: is generally to be done, etc.]” or “phi is [always] [or: generally] required [or forbidden] by reason”, it must be the case – as Aquinas stresses very forcefully – that one’s conscience is binding upon oneself even when it is utterly mistaken and directs or licenses awful misdeeds. For since it is logically impossible that one could be aware that one’s present judgment of conscience is mistaken, setting oneself against one’s own firm judgment of conscience is setting oneself against the goods of truth and reasonableness, and that cannot fail to be wrong: ST I-II q. 19 a. 5; Ver. q. 17 a. 4. The fact that, if one has formed one’s judgment corruptly, one will also be acting wrongly if one follows it (ST I-II q. 19 a. 6) does not affect the obligatoriness (for oneself) of one’s conscience. This teaching about conscience was rather novel in his day and to this day is often misrepresented or misapplied as a kind of relativism or subjectivism. But it is actually an implication of Aquinas’ clarity about the implications of regarding moral judgments as true (or false) and of thus rejecting subjectivism and relativism.
Aquinas’ well-known discussion of law in ST I-II qq. 90–97 (a discussion which actually extends through the less studied qq. 98–105) has been justly admired by jurists and other thinkers not otherwise much interested in his work. But it is shaped by his concern there (i) to present for beginner students of theology an overview of the universe and of the vast sweep of creatures out from their divine creator and back to the same transcendent being as their ultimate destiny, and (ii) to synthesize the traditional vocabulary and classic theological sources on law. So prominence is there given to the “eternal law” by which God governs even inanimate creatures (as by the laws of physics, etc.), and to the “participation” of natural moral law in that eternal law. But when he is free from these textbookish constraints he emphasizes that law’s most essential feature is something which is not true of the laws of nature (physics, biology, etc.), namely that it is an appeal to the mind, choice, moral strength (virtus) and love of those subject to the law: ScG III cc. 114–117; this is quietly indicated also in ST I-II q. 91 a. 2 ad 3.
Law (in its central case and focal meaning) is thus always a plan for co-ordination through free cooperation. The structure of things being what it is, the principles of practical reason and morality (natural moral law and natural right) can be understood, accepted, and lived by, as fully directive in conscience, without needing to be regarded as (what they really are) an appeal from mind to mind, a plan — freely made to be freely adopted — for integral human fulfillment. As the divine creator was in no way constrained to choose to create this universe as distinct from any other good possible universe, so human legislators have wide moral freedom to choose amongst alternative possible legal arrangements, making one set of provisions legally and (presumptively) morally obligatory by the sheer fact of adopting it – that is, by what Aquinas calls the law-makers’ determinatio: I-II q. 95 a. 2; q. 99 a. 3 ad 2; q. 104 a. 1.[1].
There have been many cases in history where something has been legal but not moral or vice versa. Polygamy, apartheid, abortion, and many other examples are places where morality and legality challenge each other.
[1]Aquinas’ Moral, Political, and Legal Philosophy, Stanford Encyclopedia of Philosophy
By: Hossein Aghababa
