Prawo jako przedmiot oceny etycznej

Henryk Jankowski


The article brings a sketch of an attempt to reintegrate ethics with legal studies. The task was tackled by means of determining the following question: To what an extent may the law be regarded as subject to non-legal evaluations, to ethical ones in particular? Ethical evaluations are treated in a very comprehensive manner, including both ethical evaluations in the strict sense of the word, as well as felicitological and praxeological ones. In that broad interpretation an ethical evaluation has as its point of focus a particular ideal of good life, supposed to serve as the standard of reference in evaluating the law.

The argument proper is preceded by an analysis of the methodological difficulties connected both legal studies and with ethics. With reference to law, the criticism deals with the „legal positivism”, according to which the law is a collection of thetical norms and is therefore closed to any outside evaluation or criticism. With regard to ethics, criticism is aimed at the emotivist attitude, which contends that there can be no rational ground for choice between different systems of values, the choice thus having to be based upon purely arbitrary decisions.

Throughout the whole history of philosophy, ethics, and philosophy of law, the article goes on, various evaluations of the law have been made, based on all sorts of standards of reference. On account of their respective structures, such attempts are classified as either deontological or teleological. A typical example of the deontological evaluation of law is the „natural rights” construction, while evaluations formulated on the ground of utilitarianism are an example of the teleological type.

The article proposes a twofold manner of looking upon historical evaluations of law. The first takes into account a historical analysis of the function a given philosophy of law? had fulfilled in the society of its time. The other way of looking at these matters, which incidentally is the one adopted in the present article, consists in treating the respective standards of reference in the evaluation of law analogously to the elementary moral norms. That includes a distinction between the moral evaluations made within the law itself (the „internal legal morality”), and those made before the law (material aims of the law).

The article further considers the possibility of applying ethical evaluations of the law on the grounds of Marxist philosophy. The contention is that historical relativism which is the essential component of Marxist ideology, in no way contradicts the validity of evaluating the law. The article quotes numerous instances of such evaluations, made by Marx, Engels and Lenin.

The standard of reference in evaluating law on Marxist grounds is the ideal of a communist man and society. The ideal refers to the conception of a society with no State and no laws, regulated only by norms of a moral nature. Hence it follows that an essential element of ethical evaluation of law in Marxism would be the question, to what degree a given code, law, or regulation contains elements of self-destruction. That of course does not rule out the use of standards of reference connected with the internal morality of law.

The above type of evaluation is fully applicable in socialist states as well as in socialist legal systems. However, the scope of that standard of evaluation is by no means limited to the system of fundamental principles adopted.

The article also includes an attempt to quote some more general arguments to support the postulate that the standard of reference in the evaluation of law, consisting in accepting the value of the Marxist interpretation of the good life ideal, might also serve as a criterion of evaluation and estimate of other legal systems.

The ethical evaluation of law cannot be the only determining factor of legislative activity and jurisdiction. The reason is that such activity must be based in the first place on an analysis of the actual state of the society, its needs, dangers and evolutionary tendencies.