Legal Morality and Justice

“legality is often a reliable guide to ethical behavior but it can not be relied upon as a perfect standard. legal acts may be immoral and legal acts may be moral.”


This paper concerns itself with the well known legal institutions of wills, trust, property, and agency relative to its core in justice: that of personal freedom to dispose of one’s property as one sees fit. Nevertheless, in modern societies this principle has been vitiated in the development of oligarchy in western societies, the very existence of which undercuts the legal claim to protect the sovereign individual.

Without a moral order to protect, law makes no sense. Without morality, law is either a set of decrees justifying conquest, or, even worse, a series of arbitrary decrees that justify whatever gang is strong enough at the moment to keep itself in power. Hence, as is rather uncontroversial, law exists to manifest justice and point to means whereby a just moral order can exist and flourish. This paper will assume that the basis of American jurisprudence is justice, and that justice, formally, is contained in the idea that the individual, not the family, the state or some other collectivity, is at the center of moral reasoning on legal matters.

In other words, that the basis in justice of the laws governing trusts, agency, wills, etc. is based on a notion of the common good, but rather the public protection of the autonomy of the individual in society. Hence, it can be possible for this emphasis to lead to results that are contradictory to its stated purpose, that is, that the protection of autonomous individuality leads to oligarchy, which then strips the majority of the population of all but formal rights under law.

Within the legal and moral contexts of wills, trusts, agency and property, what is being protected is the basis of western law, the preservation of the sovereign individual. In every respect, the laws applicable to the ideas above are all connected to the concept of justice, embodied in the modern understanding that the individual is the basic unit of society, and that the individual has rights over and above any collectivity, whether private or public, that the individual comes in contact with. As far as the above collections of law is concerned, that is the primary motive and purpose from a moral point of view.

A will permits the testator to leave his property to those that the testator, and the testator only, has designated. Only in cases of fraud, undo influence and manifest error can such a document be successfully be challenged in court. Attached to the juridical understanding of the “last will and testament” have been, in recent times, the legislative enactments of the “death tax.” This is a tax levied upon income that has been gained through inheritance as specified in a will. The problem here from the legal point of view is that it assumes, without historic warrant, that the state has rights above the expressed wishes of a testator.

This is the pseudo-moral basis of the “inheritance tax” which interferes with the legal basis of the will in the first place, which is the notion that the individual is legally free and sovereign to dispose of his property as he sees fit upon his death. The state in this case is an interloper, usurping a role that is legally and justifiably given to the testator alone. From a strictly moral standpoint then, the concept of an inheritance tax should be struck down by the courts.

A trust is a rather simple legal term that refers to the existence of a specific legal relationship. This relationship is between the settlor, who provides property to a trustee that holds in, in good faith, for the benefit of a beneficiary, either a person or a charitable cause. The identical moral relationship, however, exists here as well. That a settlor can have an agency hold property in trust for a specific purpose, hence protecting it from state action.

The moral principle that governs a legal trust (with the exception of fraud, e.g. creating a trust in order to protect oneself from creditors) is identical with that which governs wills. It is the protection of the sovereign individual, and, to add an important point, that the individual’s property is an extension of his person.

This is to say, that a person without property is not a “sovereign individual,” in a practical sense, in that this individuality can find no real expression without property. In other words, a person without property retains formal rights enshrined by statute (though not deriving from statute), but these rights retain only a formal character. This is an element of justice that derives from experience rather than natural law.

The same might be said of the relation of the sovereign individual relative to the concepts personal and real property. Law even in Marxist states made this distinction. Personal property are objects held as a matter of possession in fact or through agency. Real property is another matter, and is an integrated concept where not merely the profits of property (including future profits) are taken into account, but all the accouterments to property such as buildings, copyrights, resources in land, etc. In all cases, the property in question–apart from incorporation–manifests the order that bases itself morally around the individual.

If this is the case, and one can make a legal argument for the public protection of both personal and real property (thought he emphasis on the latter) on the basis of the rule of the sovereign individual and its autonomy, then two issues come up, first the nature of the income tax, and second, the idea of the concentration of real property in few hands. Let us take each in turn

First, the question of the income tax had been a major burning issue in American politics in the 19th and early 20th century. It remains the case that the major drafters fo the American Constitution were dead set against the concept of the income tax for precisely this reason: it assumes, as we mentioned above, that he state has rights over and above the well being of the individual. It sets a precedent, in other words, that gives the state a legal basis to interfere in areas that it, and it alone, has determined that it can do “good.”

Here is the grey area of morality and legality: the nature of the autonomous individual and the uncontested good that such a notion contains, and at the same time, the nature of the public good, which is the public and legal nature of state interference in such major issues as inheritance taxes and income taxes.

The public good that can be used as a basis for state interference in such legal relationships can be the notion that the sovereign individual is vitiated by the existence of wills, trusts and real property in that, when the above are concentrated in few hands, the majority of the population have rights that exist as formalities, where real rights, i.e. rights that have actual practical force, exist only for the few.

Hence the plot thickens. The question is a matter of justice: can the emphasis on the sovereign individual, in strictly legal terms, be a formal covering for the existence of a self-conscious oligarchy. Oligarchy or oligopoly, the rule of a few through the domination of real property, eliminates the ground that had been used against such things as income taxes and inheritance taxes, that is, that the individualism that is at the root of legal justice is harmed by the very nature of oligarchy.

Oligarchy is the rule by a few people based around access to property, that is, the manifestation of their corporate identity and justified by legal methods that maintain this power. Often, these legal methods are supplemented by publically proclaimed moral commitments to the nature of “free individuality,” where in truth, oligarchy destroys the nature of true individualism by stippling much of the population of all but merely formal rights, leaving true individuality as an epiphenomenon of the oligarchy itself.

For example, the legal concept of agency permits the principal to permit an agent to act in relation to society or the state as if the agent is in fact, the principle. Again, the moral basis of this concept is the idea of autonomy, the idea that one’s individual rights relative to a certain legal situation can be alienated to another person on a temporary basis for the sake of taking advantage of the agent’s expertise, connections or some other benefit to the principal. Agency is the concept that is most liable to be the method used by oligarchy to not merely fool the public into believing that an oligarchy of real property exists, but also to restrict access to the oligarchy itself.

It might be stated that the very existence of bureaucracy is a form of agency, where an important official, such as a judge, Congressman, important banker or speculator or a CEO of a major firm, uses a web of formal interrelationships so as to disguise the real basis of power (as bureaucracies function anonymously, though oligarchy is specific and refers to real persons both corporate and individual) and to restrict access to the person whose money and power animate the bureaucracy or other agency in question. Is bureaucracy agency?

Most certainly in that the president of the united states is ultimately responsible, as chief executive, for the behavior of the Federal Bureau of Investigation in its field work, since the latter works for the Department of Justice, whose Secretary is appointed by the president. Hence, the individual FBI agent is ultimately a representative of the Justice Department, whose head is representative of the chief executive. This may be extrapolated to the agency of a bureaucracy for a private firm, or even the simple relationship of counsel to client.

Regardless, this last idea, that of agency, is the one where all the others find their ultimate sanction in practical legal terms. The power that can be abused, that of money, i.e. property and its concentration, uses all the above legal method to protect itself: keeping money in the family, using bureaucratic regulations to stymy investigation, and trusts to protect it from outside interference.

Given that the existence of such an oligarchy vitiates the basic principle of autonomy in practice, since it takes the means of making such autonomy real in practice, it should also have a basis in legal theory as well, in that the public authority, in the very name of the principle that money uses to defend itself, that is, that of moral personal autonomy, should then have the legal and moral basis to interfere with the above legal institutions for the sake of autonomy itself.

In conclusion, this paper has sought to find the underlying basis in justice, that is, the state of affairs brought about by the flourishing of a moral order in a society, protected by a legal system, for such well known institutions as trust, wills and agency, in that of the autonomous individual relative to society and the state itself.

The moral problem, then, lies in the question of the concentration of real property in a small group of individuals, which leads to an unjust situation in that the majority of the population receive only formal rights without the proprietary means of making these real. While they might exist within a legal code, they do not exist in practice, which is also the domain of both state action and law.

Hence, the moral struggle the very limits of public action against the use of the above institutions for the sake, not of autonomy and personal freedom, but to protect an oligarchy that uses its power to do harm to these very same goods.