CHECKS AND BALANCES

By:

Miguel Franco T. Dimayacyac1

People have considered over time that law and morality are two different concepts, that law and morality are not the same. It has been accepted that law will prevail over morality because law has more intense punishment compared to morality. It has been accepted that law trumps morality because law is specific to the point, whereas morality is just a product of a societys beliefs. It has been accepted that law is more powerful than morality since the former has officers for its enforcement. Though it may seem that law and morality are different, and society has kept subordinating morality under law, we have forgotten that morality has been there since the beginning of organized society. We have forgotten that law is only a product of mans freethinking that has been influenced by the societys moral system in which he belongs. The issue raised in the preceding has raised a serious issue in the structure of our legal system: which came first, law or morality? Though many scholars, some explicitly and others implicitly, attempted to answer this mundane and arcane question, not a single piece of literature has answered this. Neither do I intend to answer this question since answering that question will require more than a lifetime and resources that when

Author is an exchange student from Ateneo de Manila University, Quezon City, Philippines taking up BS Management, major in Legal Management.
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tabulated are in excess of what is reasonable to be allocated in a certain academic exercise. What I intend to put forward is the idea that morality and law are heavily intertwined. Though popular belief suggests that law alone regulates our conduct and behavior in a society, it is not the case. Both law and morality regulates our conduct and behavior, but not in a similar degree. Since the field of law and morality is vast all over the world, I intend to put forward the idea the law and morality regulate our conduct using the legal system of the Philippines. Law and morality influence our behavior2. It may not be as bright as the daily schedule, but it is the truth. It is argued that law alone influences our behavior. It may be true for certain societies, but for majority of global societies special consideration placed in the Philippines, 3 morality is placed almost equal to law. In these societies, moral beliefs are so strong that these beliefs tend to influence daily routine on a specific event. In order to continue further, we have to set our definitions straight. Law is the rules that are determined and enforced by the state and that are intended to channel behavior and to resolve certain adverse events.4 On the other hand, morality is rules of conduct that are associated with certain distinctive psychological and social attributes."5

Steven Shavell, Law versus Morality as Regulators of Conduct, 27 Amer. L. Econ. Rev. 227 (2002) 3 Though the writer is from the Philippines, there is no biased placed with the mention of the Philippines. It has been mentioned since the Philippine society is highly influenced by law, as well as their morality. see Daniel Doeppers, Ethnic Urbanism and Philippine Cities, 64 Annals Assn Amer. Geographers 549 (1974) 4 Steven Shavell, Law versus Morality as Regulators of Conduct, 27 Amer. L. Econ. Rev. 229 (2002) 5 Id, at 230.
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It is proper from the definitions on hand to say that morality is dependent on the domicile and ancestry of the society, hence the phrase distinctive psychological and social attributes. Furthermore it is safe to extend this line of thought by asserting that law is influenced by morality since the man writes law comes from a society that has a moral value system. Thus, [m]orality sets ideals for law, and law should live up to them.6 The effect of law compared to the effect of morality to society is different, though morality influences law by some manner. The enforcement of morality is dependent on the level of virtue or guilt associated with a particular moral rule. 7 Since a person will feel virtue if he follows a moral rule, and he will feel guilt if he violates a moral rule, 8 the level of enforcement varies as to what rule is the virtue or guilt attached. If the rule is a cardinal or principal rule, the weight of virtue or guilt is more compared to an auxiliary rule. For law, [t]he effectiveness of law enforcement depends, other things being equal, on the magnitude of sanctions and on the probability with which they are imposed for violations.9 Since the sanctions, maybe monetary or incarceration, is limited only by the offenders wealth and health,10 there is a greater urge for society to follow the law.11 Thus, law seems more effective. Or is it?

Leslie Green, Positivism and the Inseperability of Law and Morals, 83 N.Y.U. L. Rev. 1036 (2008) 7 Steven Shavell, Law versus Morality as Regulators of Conduct, 27 Amer. L. Econ. Rev. 230 (2002) 8 Id 9 Id 10 Id, at 236 11 It is logical to see that people put greater weight on wealth and liberty as compared to public image. E.g. Id at 236
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Before a particular law can be applied to a particular case, a certain amount of information is necessary before a legal rule may be applied. 12 Usually, the burden of proof to provide information is rested upon the back of the offended party. 13 Thus the process of enforcing a law is much more tedious compared to enforcement of morality, as information is not necessary.14 In Physics, there is a well-known rule that explains that for every action, there is always an equal and opposite reaction. This may not be Physics, but there is a similar situation at hand. Law has its advantage on the punishment part and morality has advantage on the application part. With every advantage, there is also a disadvantage. For morality, it is vague. Morality is vague because different people have different intellectual capacities and it is often passed down by word of mouth. 15 Though information is not needed for a moral rule to apply, it would seem difficult for two individuals to agree on the rule itself since the rule is generic. In short, there is no authority. Moral rules are sufficient for small societies, but this poses a serious problem, as there is no certainty to what rules apply to what since there is no universal authority. 16 Therefore, application of morality is subjective to a persons belief and knowledge of morality itself.

Id, at 238 He who comes to court must come with clean hands. Cf. Osmea v. Osmea, et al, G.R. No. 171911 (S.C., Jan. 26 2010) (Phil.), available at http://www.lawphil.net/judjuris/juri2010/jan2010/gr_171911_2010.html 14 Steven Shavell, Law versus Morality as Regulators of Conduct, 27 Amer. L. Econ. Rev. 238 (2002) 15 Id, at 234 16 Jos Antonio Marina, Genealogy of Morality and Law, 3 Ethical Theory and Moral Practice 309. (2000), see also H. L. A. Hart, The Concept of Law. (Peter Cane et al. eds., 2nd ed. 1994).
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It has been said that law requires information before it be applied. But in order to start the application process so to speak, a violation of law must be reported to a proper venue first.17 Thus, if no one claims that a law has been violated, no action will be done18. An ordinary man would question, Why is there law in the first place? Since the ambiguity of morality is so prevalent, the legal system is created to help define what is right or wrong19 20. Primitive societies began to notice this problem with vague moral rules when their membership grew exponentially. They were seeking ways on how to remove the possible error resulting from the word of mouth transmission of moral rules. As time passed, they decided to write these rules. And these rules over the years became the legal system. Legal systems began as a spontaneous order, composed of many small articles, which are stabilized by norms, morality that are imposed to society. 21 Hence, law clarifies what morality has left vague and essentially, under discretion of the elders of the society22. Now, it is clear that law and morality are intertwined before. But, an issue still stands: How do both law and morality regulate our conduct?

Steven Shavell, Law versus Morality as Regulators of Conduct, 27 Amer. L. Econ. Rev. 236 (2002) 18 This is the primary reason why offended parties from the lower strata of society do not come forward to protect their rights. Even if they are clearly violated, they fear that the system is bent on the powerful. Moreover, to come forward at court requires resources that are not available to everybody. 19 Leslie Green, Positivism and the Inseperability of Law and Morals, 83 N.Y.U. L. Rev. 1046 (2008) 20 It may not be right or wrong per se. Because there are cases that law and morality are at odds against each other. 21 Jos Antonio Marina, Genealogy of Morality and Law, 3 Ethical Theory and Moral Practice 308 (2000) 22 Culturally speaking, the elders may be equated to the Supreme Court of a society because they are widely respected, as in Philippine culture, to have more wisdom compared to other members of the society.
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It has been argued throughout this article that law and morality share common history, that law and morality complement one another. Since morality is one of the fundamental values of society, it has to be somewhere inside the confines of the legal spectrum. Writers of [l]aw have always admitted that every legal solution must preserve the fundamental values of society.23 This supports the reason why the punishment for a particular heinous crime, such as killing a man, is similar in todays law and in the moral code and primitive law of yesterdays society. The framers of the law intend to keep, preserve, and pass on certain elements of the moral code. Therefore, in every law enacted and promulgated, there is a piece of morality embedded in the document, explicit or implicit. It may not be noticed by a reader since it is not only embedded in the document, it is also inculcated in the societys beliefs under which he belong. The failure to identify this embedded seed of morality in the law today is not a case of negligence. Contemporary man has been constantly bombarded with moral value systems that he does not need to be conscious in his way of reasoning that he is using arguments drawn from morality. Since he is essentially indoctrinated with morality, his life revolves around morality. Therefore, being a man hearing morality day in day out every single day of his life, the concept of morality itself becomes so trivial that it does not ring a bell in his mind anymore. It is desirable for individuals to interact in a society of law. But, such law is, by definition coercive. In order to justify this coercion, there must be a moral justification for that law. If there

Jos Antonio Marina, Genealogy of Morality and Law, 3 Ethical Theory and Moral Practice 310 (2000)
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is a legitimate and compelling justification for the law, then there is a moral duty to obey the law.24 It is noticeable that some of the laws today are coercive. Since we follow them, there must be a moral justification for that particular law. Take the instance of contract law. Contract law guides us on how to deal with other people fairly. We follow contract law since it has moral justification on the part that morality promotes equality and fairness.25 Though exceptions exist in this realm, this is usually the case. This is the case because we have a sense that it is right, and we have that sense of it being right because it is in accord with our morality. This is evidenced by the fact that morality guided the evolution of criminal law and litigation.26 Criminal law in most of the world is in accord with morality.27 If criminal law and other major facets of law were not justifiable under morality, there would be civil unrest, perhaps even a revolution.28 The argument for morality and law jointly regulating our conduct is now standing, but it is still weak. It has been supported only to the extent that morality is embedded within the text of the law itself. Thus, the succeeding part of this paper is dedicated on drawing arguments straight from morality.

David Bear, Establishing a Moral Duty to Obey the Law Through a Jurisprudence of Law and Economics. 34 Fla. St. U. L. Rev. 537 25 There is an exception to this with regard to laws promoting racism and the like. There is no moral justification for these laws yet people follow them for the fear of sanctions. 26 Jos Antonio Marina, Genealogy of Morality and Law, 3 Ethical Theory and Moral Practice 320 (2000) 27 I say most of the world since some parts of the world that have criminal laws that are not in accord with morality (i.e. laws on indiscriminate killing). 28 The most celebrated example of this is the People Power Revolution in the Philippines, Feb. 22-26, 1986, which overthrew dictator Ferdinand E. Marcos.
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The resemblances of law and morality are more than superficial. 29 Both serve as guide to promote discipline in a society. This is not the only similarity. Both law and morality applies to everybody. Nobody is above the law and/or morality. Even the elders are under morality. Even the legislators are under law. Even the president is under law. Everybody is punishable under law and the same goes for morality. Everybody feels guilt, virtue, remorse, rejection and other similar feelings for violation of a moral rule in a particular society. Though there are exceptions on the applicability of law, no one is exempt to law if such law is applicable to your actions. It has been raised earlier that morality is embedded in the text of the law. It can be extended to say that traditionally, writing a law may be construed as taking a part of societys moral rules and transforming it to legal form, which is prescribed by the authorities.30 Simply put, law is morality written. There is a necessity to put into text since todays countries have millions of individuals, and because of migration and tourism, a single country does not have a stable population a group of people may not share the same moral system with the rest of the country. With this, there is a need to promote a universal authority regarding what is right and what is wrong. If this were not to be done, chaos would ensue because what is right for a particular group maybe wrong for another, and what is acceptable for a man may not be acceptable to a man from a land far away. Thus, writing down the norms would be the best thing in contemporary times. Though there are laws that are undesirable, we still have to follow them since there is a

Robin Bradley Kar, Deep Structure of Law and Morality, 84 Tex. L. Rev. 878. Roger Cotterrell, Common Law Approaches to the Relationship Between Law and Morality. 3 Ethical Theory and Practice 12 (2000).
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moral duty to obey the law.31 Law tolerates moral diversity and moral complexity32 Written law is not susceptible to differences in belief, background and culture. There is that moral duty since law draws its inspiration from morality, as raised earlier in this paper.33 There are cases in where the legal system is highly integrated with morality. In the Philippine legal system, morality is integrated with the laws. A good example of which is the Civil Code of the Philippines. There are provisions in said code that explicitly shows the incorporation of morals. Article 1306: The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy. (1255a) (Emphasis mine)34 It is now undisputable that law is somehow related to morality that law is a version of morality that is written. Law is a more authoritative version of morality in the sense that law has been placed into words that all of the members of the society understands clearly.35 [I]t isthe nature of law to project the self-image of a morally legitimate authority.36 Not only law is an updated issue of morality, law also strives to be morally correct.

Bear, Id at 493 Cotterrell, Id at 16 33 It may be disputable but here is another argument. We have to follow a law, whether desirable or not, because of the punitive provisions placed inside the law. People would naturally prefer disgust over losing their liberty or wealth, or some of their rights. 34 Civil Code, Article 1306, Rep. Act 386, as amended (Phil.). 35 This may not be the case for the Philippines since laws are written in English, while the official de facto language is Filipino. 36 Green, Id at 1049
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Not only is law related to morality. In the Philippines morality is a part of the law, as exemplified in the quoted provision of the Civil Code of the Philippines. But there are cases in which this is also exemplified. The Philippines is the only country in the world wherein divorce is not provided for in the Philippine law system. The reason being is the fact that the Filipino people is a highly religious set of individuals, with a recent study showing that roughly 90% of every Filipino believes in God. It is held in beliefs and morals that marriage is a sacred act that man cannot sever its bond, only by death. Therefore, the only options for married couples to live separately are legal separation and annulment of marriage. But there are disadvantages to this, as evidenced by the growing clamor to introduce divorce. Their claim rests on the fact that legal separation and annulment of marriage takes too long and it is very expensive, so only the wealthy people can afford such procedures. They say that divorce will make separating couples more accessible to people in the lower economic status. Another instance of morality weaved under the confines of the law is the case of abortion. Abortion is illegal in the Philippines as enforced by the Revised Penal Code. Art. 256. Intentional abortion. Any person who shall intentionally cause abortion shall suffer: 1. The penalty of reclusion temporal 37 , if he shall use any violence upon the person of the pregnant woman. 2. The penalty of prision mayor38 if, without using violence, he shall act without consent of the woman.

Twelve years and one day to twenty years. See Revised Penal Code, Art. 27, Act No. 3815, as amended (Phil.). 38 Six years and one day to twelve years. See Id.
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3. The penalty of prision correccional 39 in its medium and maximum periods, if the woman shall have consented. Art. 257. Unintentional abortion. The penalty of prision

correccional and its minimum and medium period shall be imposed upon any person who shall cause an abortion by violence, but unintentionally. Art. 258. Abortion practiced by the woman herself of by her parents. The penalty of prision correccional in its medium and maximum periods shall be imposed upon a woman who shall practice abortion upon herself or shall consent that any other person should do so. Any woman who shall commit this offense to conceal her dishonor, shall suffer the penalty of prision correccional in its minimum and medium periods. If this crime be committed by the parents of the pregnant woman or wither of them, and they act with the consent of said woman and for the purpose of concealing her dishonor, the offenders shall suffer the penalty of prision correccional in its medium and maximum periods. Art. 259. Abortion practiced by a physician or midwife and dispensing of abortives [sic]. - The penalties penalties provided in Article 256 shall be imposed in its maximum period, respecticely, upon any physician or midwife who, taking advantage of their scientific knowledge or skill, shall cause an abortion or assist in causing the same.

39

Six months and one day to six years. See Id.

Any pharmacist who, without the proper prescription from a physician, shall dispense any abortive shall suffer arresto mayor and a fine not exceeding 1,000 pesos.40 It is clear in the provisions of the Revised Penal Code that abortion is a crime that is equated to murder, since the belief of the legislators is abortion is the killing of an unborn baby inside the mothers womb. Both sides of morality and law have been discussed. There are advantages and disadvantages existing in the two, and it is inevitable for such case. But what if we can bridge the gap? What if we can eliminate the advantages and disadvantages? In order to bridge this gap, society must accept that law and morality both regulate our behavior and conduct. This is possible since law draws its inspiration and strength from morality itself. And morality has been present since the dawn of civilization. To eliminate the disadvantages would mean a more efficient system in promoting discipline, equality, fairness and other like ideals. It will be best to use law to supplement morality where the cost of so doing is justified by the extra social benefit. This will tend to be true when two conditions hold: the expected private gains from undesirable conduct are often large, and the expected harms due to such conduct are also often large. For if the expected gains from the bad conduct are great, then the moral sanctions may not be enough to prevent it. And if the expected harms from bad conduct are substantial, then failure to prevent

40

Revised Penal Code, Art. 256-259, Act No. 3815, as amended (Phil.).

bad conduct will be socially serious and thus make worthwhile the additional expense of the legal system as a supplement to morality.41 The preceding quote caps it all. It is essential that law and morality be used hand in hand in todays society since the conditions laid in the quote are met. Society is better off with both morality and law regulating and monitoring our behavior since it produces a more authoritative statement: from the experience of the elders, wisdom of the ancestors, to the intellect of the legislators. Taking it from the Philippines, which has combined morality into law, it has a pretty strong legal system since the law shares the heritage with the citizens.

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Shavell, Id at 246