“Better Hyman,

than a traitor”*

Anything pleasurable is said to be illegal, immoral, or fat. The saying was popularized by an American radio producer in the 1930s, but it also appears in an apocryphal version that adds in the introduction that it was “since the Middle Ages.” Therefore, we can find here a synthesis of Stoic virtues, adopted and developed by the Christian morality of restraint, correspondingly asceticism, necessary for deification. Thus, worldly pleasures qualify as evils associated with undesirable consequences. What is interesting in this aphorism is the (trinitarian!) distinction between three categories of sanctions: legal, moral, or medical. But is the “scale” of importance here as well? So is doing something illegal worse than doing something immoral? But perhaps even more interesting is the fact that a distinction is made between illegal and immoral. Don’t they overlap? Shouldn’t the law be virtuous, protect morality?

The distinction between right (law) and morality is extremely complex and has been discussed at length by well-known authors. This is not the place to rephrase it, but I would like to briefly discuss some aspects of this tension that I have recently noticed. The first question is to what extent the scope of the legal norm coincides with the sphere of the moral norm. At first glance, they seem to relate to the same facts, since their common purpose is to organize relationships between members of a community of people. Here we can talk about a different degree of generality or, more precisely, about a different “slicing” of objects. Law is, in modern times, national; morality considers communities defined by other criteria. Thus, if Romanian law applies to any person with Romanian citizenship, Christian morality cannot be imposed on an atheist. Similarly, the morality of a rural community differs from that of an urban agglomeration, although both communities are governed by the same law.

Then, as a technique of construction, both law and morality are normative systems. They represent a set of deontic provisions that show what should be the correct behavior of an individual in society. The main element is to set some rules. They set a target to be achieved and set out a number of means to check how well the standard is being met. Behavior that is considered desirable is encouraged, while behavior that qualifies as malignant is discouraged.

At the scope level, there are (many) overlaps, but also differences. For example, abortion in the first weeks of pregnancy is legal, but immoral for the Christian community. Same-sex relationships too. Conversely, during the pandemic, worship in the church was prohibited by law, as was communion (especially on Easter 2020), which was against the moral rule. These differences raise the question of the (meta)ordering system between the two systems. In principle, the law took advantage of the fact that they originate from the state (authority) to declare itself superior to other normative systems. The problem with this preference is that it is given by a simple authority argument: The Constitution says that the law is the supreme rule that everyone must obey. And the source of the power of the constitutional norm comes from its adoption (in a referendum) by (the majority of) the population, which thus exercised its sovereignty. If you look more closely, laws (any) are passed by the minority and approved by the people only through their representatives. Therefore, it is possible that they reflect a minority view. That is why, after the horrors of the Second World War, legal theorists declared that pure positivism is dangerous for any normative system, and it must be limited by a set of (humanistic) principles from which it is impossible to deviate. Today, they are called basic human rights and are (in our country) above the constitutional level. Are they an absolute measure of morality? Or does it represent a different set of legal norms, but accepted by the wider community (international or European)? Recent debates over the constitutional significance of a woman’s right to control her own body demonstrate that the issue is still open.

Accepting the differences between the two systems (legal and moral) is one of the strengths of the aphorism at the outset. Because when trying to create a perfect overlap, all kinds of disputes arise. For example, the attempt to “reconcile” the constitutional norm with the moral system of certain (categories) of persons led to discussions around the family referendum. Obviously, systems cannot ignore each other. In fact, the Romanian Civil Code continues to maintain the principle that conventions contrary to “good morals” are prohibited, although the French Civil Code (from which this provision was taken 150 years ago) has already abandoned this link. The problem of this connection returns today as a result of discussions related to fatwa brought against Salman Rushdie. Can a religious leader issue a rule that has binding legal force?

I do not want to discuss here the nature of the Islamic legal system, where religious norms are the main component of legal ones. It is essential for this discussion that law and morality are closely related here. Thus, an equivalent legal norm is added to the moral norm. This model is not different from other systems of the Middle East, where, for example, the rules of the Pentateuch were used by Jews as legal norms for many centuries. Let us also not forget that the preamble to Justinian’s codification of law was presented as the result of divine grace. But the secularization of law does not mean its separation from morality, but only the refusal to put a certain moral system above others. Law continues to draw (partially) its juices from morality, but it tries to do so pluralistically, seeking those moral values ​​that are eternal for the entire community subject to this system of law. In other words, the law chooses only a strict part of those rules that are common to different groups and are important for the state from the multitude of various moral norms.

Next, I will limit myself to the problem of the nature of (different? a) sanctions that can intervene in case of non-compliance with two types of rules: moral and legal. The health care system is different because the natural (rather than normative) laws of biology operate there, even if greed also has a moral dimension. It is usually said that the difference between moral and legal norms is that the latter have the coercive power of the state apparatus. In other words, one who neglects them may be subject to sanctions by agents of the state who exercise a monopoly on violence. In fact, upon closer examination, there is no difference in substance between the sanctions, only in means. Essentially, both systems (moral and legal) use sanctions designed either to reintegrate the offender into society (and force him to stop breaking its rules) or to exclude him from society. As long as the state community is wider than the moral one, the person who violated the moral rule can “hide” in another community (within the same state).

For example, in Christianity, excommunication is one of the most severe punishments. It consists in the exclusion of a person from within the Church and, implicitly, in the prohibition of the path to salvation. In other words, the excommunicated loses the chance for eternal life, which for a believer is a more serious sanction than the death penalty. Fortunately, unlike the death penalty, excommunication can be lifted if the (un)believer truly repents. By ceasing to be part of a religious community, in the days when this criterion was important to social life, the excommunicated risked losing any chance of relating to others (less than his nuclear family). It was not only a “religious death”, but a real “civil death”. However, it was not equivalent to biological death, although some practitioners suggest that it could have such consequences as a result of the disappearance of the vassals’ loyalty obligation, which gave them the right to rebel against the excommunicated king… Over time, excommunication took on a more mercantile role, the achievement represents punishment itself ad hoc for those who did not pay their money debts (although they invoked divine grace, so they accepted the name of the Lord in the desert). In our country, for example, in Indretarea Legii (legal-religious code of Neagoe Basarab from 1526), ​​chapter 86 says that “If a Christian layman wants to take usury from his Christian brother, he must be excommunicated and absent from divine wisdom until it is abandoned; then let him forgive himself and put him in a nursing home.” It is noted that the sanction was temporary, only for the period of usurer activity.

Expulsion from the community was also a sanction of state law. Sometimes it was an alternative to the death penalty. But, as a rule, this was a temporary exception: the ostracism lasted ten years for the Athenians, and the banishment could be lifted in Rome (as was the case with Cicero, but not with Ovid). Today in our country, deportation is an additional criminal penalty and can be applied only to persons who are not citizens of Romania. The recent debate surrounding the deportation of Mohammad Munaf after his release from prison demonstrates the modern connotations of this punishment. Read the full article and comment on contributors.ro