Creation of law

The discussion of whether or not morality belongs in international law has its’ roots in both the definition of morality as a concept, and the ability of an international body to legitimize the adjudication process based on premises of morality. The term ‘moral’ has its’ roots in middle english according to the oxford dictionary: “from Latin moralis, from mos, mor- ‘custom’, (plural) mores ‘morals’. As a noun the word was first used to translate Latin Moralia, the title of St Gregory the Great’s moral exposition of the Book of Job, and was subsequently applied to the works of various classical writers.

”1 If we are to believe the Oxford analysis of the etymology of the term moral than morality is inescapably linked to religion from the inception of the term originating from a synopsis of a biblical text. Despite the issues that arise with connecting church and state, the creation of law on the premise of morality will not be discussed with specific relation to the etymological foundation of morality as a religious concept.

Rather the propensity of morality based arguments to be reduced to an emotional nature, the ability of regional and micro-scale adjudicatory bodies to regulate more specified legality debates being mitigated by international morality related laws, and the nature of morality based arguments to alienate certain sects of society determined by the mutual-exclusivity of morality centered litigation will be analyzed in this document. From a philosophical perspective, one can adopt views on the nature of humanity from a plethora of sources. This paper determines its’ philosophical beliefs from the works of Thomas Hobbes.

Specifically in Hobbes’ arguably most famous of works the leviathan, Hobbes determines his view on the ‘state of nature’ for all humans within this text. In chapter eleven of the leviathan, Hobbes proclaims that mankind has a general “inclination… and restless desire of power after power, that ceaseth only in death. 2” He thinks that in the absence of the State and the formalization of a commonwealth protectorate, man cannot “assure the power and means to live well, which he hath present, without the acquisition of more. ”3 Thus, given the absence of a governing body one must continuously “kill, subdue, supplant, or repel the other.

4” This means that without the presence of a governing body there is not facility to create a conceptualization of what is right or wrong. One only has inclination to survive and to obtain more power than all others around him in the perhaps vain attempt to extend his own life, as is only natural given the constant state of war that nature provides. Without the ability to act or even contemplate what is right or wrong the very idea of morality cannot exist, for morality is by definition “propositions asserted as objective truth”5 in relation to an individual or group conceptualization of what is ‘right’ or ‘wrong.

‘ If one is to follow this line of reasoning to its’ end then the conclusion is that without the formalization of the state, which is only possible by creating contracts between people giving up certain freedoms allowing for a collective state to provide universal protection6, then the idea of morality cannot even exist, for without security the idea of what is ‘right’ or ‘wrong’ is superfluous – the only thing that is relevant is how to obtain more power thus fortifying ones own existence for another allotment of time.

In response to this line of argument one could adopt another position on the definition of morality. Addressed as ‘conventional’ morality in George P. Fletchers ‘Symposium on Kantian Legal Theory,’ this definition claims that morality is a group of “propositions supported by social consensus. 7” The difference in definition here being essential for the conclusion of the former conversation about the creation of morality.

If one is to take the stance that morality is derived from a social agglomeration of stances on what is right or wrong, then the argument could be made that indeed Hobbes State of Nature is moral. The argument being that if everyone agrees to kill everyone else, then an agreement has been reached to describe morals as consistently doing what is right for oneself. This argument has been considered inconsequential in this article for the reason that laws created on the premise that killing everyone else in the attempt to gain power would be universally agreed as not bringing ‘justice.

‘ Similarly, if this argument were used as a thought experiment to try and disprove the legitimacy of the previous line of reasoning, considering the universal acceptance of this formation of morality being unsuitable for adjudication, universal agreement to adopt a Hobbsian state of nature as being moral would go against the socially agglomerated view of what is right or wrong therefore eliminating a Hobbsian state of nature as being moral by a ‘conventional’ moral definition.

Before moving on to a more empirical case-based study of the effects of moralistic laws, a third approach to moralistic interpretation was brought to light in ‘The State as a Purveyor of Morality’ by Don Welch in the George Washington Law Review. Progressing this article from the realm of theory to a more case-based conversation of moralities impact on the adjudication process, the case of Lawrence v. Texas will now be looked at.