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Ethics and Law: Reassessment on the Legal Positivism



Author(s)

Mehmet Tevfik Ozcan

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DOI:10.17265/2159-5313/2014.02.001

Legal system in a modern society is administered by judiciary which is due to separation of powers in a constitutional government whose role is congruent with market-based (i.e., capitalist) social formation. At the outset of modernity, an overall morality, as a social system, lacked for ordering all social relations in modern society under overdetermination of market relationships and class differentiation. Despite the fact that we may attribute moral property to the patterned relationship, there is somewhat a common character between morals and laws that both of them visibly set forth by reciprocity between individuals and social groups, which are backed by external sanctions as manifested with notion of justice, as evaluative criterion of impartiality. Thereby, the other problem is a tiny relationship or sometimes tension between social systems of morals and individual ethical virtues; even though some philosophers are willing to equate virtues, morals, and the law as squarely reducing virtues to obey the established law. As though, legal system and some morals incidentally coincide, the law cannot be evenly rely on morality in spite of presumed legitimacy by means of morals that have been overall subject matter of philosophy of law. Regarding the social structure of any capitalist society, I frankly say that law autonomously or semi-autonomously arose as a discrete depolitical power system other than system of morals which was ultimately determined by mode of production. Therefore, it relies on a convention-like social approbation, whatsoever is stably or unstably balanced with political power.

law, morality, ethics, legal positivism, depolitical