The intrinsic (im)morality of law

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EDSEL TUPAZ

EDSEL TUPAZ

The Supreme Court’s decision about whether President Marcos’s burial should proceed revived the classic debate between law and morality— whether society’s moral principles should be read into what the law says whenever the highest court of the land is called upon to interpret the law. Under our judicial system, decisions of the Supreme Court form part of the “law of the land,” that is to say, it becomes part of the larger legal system accorded with all the binding virtue found in any other law or regulation. It becomes “enforceable” much like any other rule in the statute books. The Court’s decision to allow Marcos’s burial also uncovered current understandings – “idiosyncracies” if you will – held by the incumbent Justices of the Philippine Supreme Court. Knowing this, of course, will be of pragmatic value to many lawyers with cases pending before the Court, but the greater jurisprudential, longer term question would be whether Philippine judges ought to hew more closely to a belief that law is but a sovereign command devoid of morals and a moral history, or to a belief whether law is really a manifestation of a deeper, moral code shared by a people willing to be governed by it.

The question of whether law is distinct from morality, or autonomous from it, is one of law’s greatest issues, and has gripped both politicians and philosophers since ancient and classic times. One of the earliest thinkers about natural justice was Aristotle, who devoted a discussion in Book V, entitled “Justice and Fairness,” of his Nicomachean Ethics about the attributes of one who could be a “law-abiding” citizen. John Rawls, perhaps the most important political philosopher in the 20th Century, in his “Theory of Justice,” maintained that a society’s fundamental charter must always rely on principles and reasons that its citizens, whose lives will be limited by the terms of that charter, cannot reasonably reject. Today, in deciding upon the question of whether the late Ferdinand Marcos may be buried in the Libingan ng Mga Bayani, the Court and its members have situated themselves along the law-morality continuum in ways that revealed how law ought to be understood and what fundamental purposes law ought to serve.

Taking a cue from President Duterte himself, Marcos supporters would hew to the argument that because existing laws and regulations permit “presidents” and “soldiers” to be buried with honors in the Libingan, then Marcos, both a president and a soldier, two facts indisputable to Duterte, can (and should) be given a state burial. It isn’t mandatory for anyone to have the late dictator buried in the Libingan, but it isn’t prohibited either.

The Nazi regime discriminated against individuals based on racial grounds, but a strand of legal philosophers – “Formalists” as they are called – view Nazi laws as a valid system, rightly or wrongly, because law is distinct from morality. To modern formalists such as H. L. A. Hart, a legal system can function effectively even if it is neither just nor moral, provided that its rules emanate from an authoritative source, such as the legislature. It is the law regardless of your moral beliefs, which can include your ideological and spiritual beliefs. Duterte’s call to bury Marcos is characteristically “formalist” or “positivist” in its approach to legality. In the words of the majority opinion of the Court, speaking through Justice Peralta, Marcos’s burial can be allowed “in the absence of clear prohibition” and because “Marcos possessed none of the disqualifications” under existing regulations.

On the other side of the continuum is a strand of legal philosophers known as “Idealists.” Strongly associated with the ‘natural law’ school, Idealists maintain that law and morality cannot be so neatly separated. Modern idealists such as Lon Fuller, and later, Ronald Dworkin, argue that there is an “intrinsic morality” within law which accords it binding virtue. To an Idealist, a law without morality built into it, is nothing but an instrument of an arbitrary and tyrannical power. The dissenting opinions in the Marcos burial cases seem to have argued on the basis that law has its own intrinsic morality.

In Chief Justice Sereno’s dissent, a call was made to examine the “moral fiber” and “spirit” of the Constitution underpinning the “moral legitimacy of the Court itself” and whether a decision to bury the former President “would contradict the anti-Martial Law and human rights underpinnings and direction of the 1987 Constitution.”

To Justice Carpio, granting Marcos a hero’s burial was “contrary to public policy,” noting that under the Human Rights Victims Reparation and Recognition Act of 2013, it is the “policy of the State to recognize the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos.”

In deciding upon the Marcos burial case, the Justices seemed to have situated themselves in varying degrees along the Formalist-Idealist debate in justifying and explaining their legal vantage points. This doesn’t speak of whether one school is anymore ‘evil’ than the other, any more than whether a boxer is better off with a southpaw or orthodox stance.

In the past week, ordinary citizens have taken to the streets to protest the Marcos burial. It remains to be seen whether the kind of protests we are seeing will rise to the level of popular protests that take on sovereign attributes associated with “people power” revolutions. Certainly it will be a question of numbers, but it will also be a question of attaining a sufficiently general, overlapping consensus and whether a qualitative sovereign “will” can be read into that consensus in ways that can be imputed to the rest of society. If succeeding protests do take on these qualities, and if history is anything to go by, the consequences can be irreversible and indelible. It can shape and inform the next constitutional order in the same manner that Marcos was a necessary and sufficient cause for bringing about the 1987 Constitution.

The existing 1987 Constitution was a product of a revolution against a former order. It was a product of a moral reading of all that went before it. It would be a paradox if the current order can bring itself, as it did, to state-sponsor a hero’s funeral for the epitome of all that was morally revolting under the old order.

Edsel Tupaz is a public interest attorney and comparative constitutional law scholar. He is a graduate of Harvard Law School. The author is very grateful to Professor Lewis Sargentich, Harvard Law School, for having studied under his Jurisprudence: Legal Ideals class in Fall 2007.

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4 Comments

  1. Poitics has its lawful and immoral aspects. It has followers who are split on the morality issue. It is difficult to ascertain the morals of the governing body. Let history be the judge and it will take a lot of years to come to a clear verdict. Until now there is a conflicting story as to what really happened with Andres Bonifacio and yet his pinpointed assailant remains in the rostum of heroes. If in some years history will come up with a vkear judgement on the evils of Marcos, exhume his remains in ghe LnmB

  2. It appears to be a morality vs law conundrum but it is really not.
    It is about failure of rule of law.
    Incompetence, inefficiency, moral bankruptcy, and corruption conspired in the failure to indict, prosecute and convict Marcos in absentia. Convicts are not buried in Libingan.

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