1.1.2.2 Positive and Critical Morality
Positive Morality When looking at the relationship between law and morality, it is
useful to keep in mind that the very notion of “morality” is ambiguous. On one
hand, it may relate to positive morality, the moral standards and precepts that are
broadly accepted at a particular time and place. Such “positive morality” at a certain
time or place may differ from positive morality at another time or place.
It may be the case that in the West all persons are to be treated equally, while in the East
elderly people gain certain advantages because they are culturally considered to deserve
more respect. Another example would be that views about the moral and societal accept-
ability of homosexual behavior have changed over the course of time.Critical Morality On the other hand, “morality” may stand forcritical morality,
the moral rules and standards that should rationally be accepted regardless of what
positive morality says. In general, these rules and standards will not fully coincide
with those of positive morality.
Suppose that in a particular society the use of drugs is considered as morally bad, no matter
what the consequences. But this same society has no moral problem with the use of alcohol,
if this use does not lead to misbehavior. One might wonder whether these moral attitudes
are consistent. Why shouldn’t the use of alcohol also be considered as unconditionally bad?
Or, why is the use of drugs not considered as bad only if it leads to misbehavior? If one asks
such questions, one engages in critical morality, and if one concludes that the use of alcohol
is “really” as bad as the use of other drugs, one has arrived at a conclusion of critical
morality.Very often, when people ask whether something is good or bad, they mean whether
it satisfies the standards that should rationally be accepted. Whereas it is in general
easy to establish what the standards of positive morality require, it is often a matter
of dispute what is required by critical morality.
Take the example of giving to the poor. According to positive morality this is probably seen
as a good thing, but not required, and not as a moral duty. One way this can be established is
by interviewing a sufficient number of people.
However, it is not so easy to determine whether there is a moral duty in the sense of
critical morality to give money to the poor. In fact there are substantive differences in
opinion. Libertarians believe that people are free to do whatever they deem fit with their
money and belongings, as long as they do not violate the rights of others. Utilitarians, on the
contrary, believe that, morally speaking, people should do what maximizes the total amount
of happiness. If giving to the poor increases happiness (the gain in happiness of the poor
outweighs the loss of the rich), then according to utilitarians, there is a moral duty for the
rich to help the poor.1.1.2.3 Legal Certainty
It is often quite easy to establish the contents of positive law. The rules only need to
be looked up in legislation or in judicial decisions. This may take some time, but in
the end it is often possible to establish the contents of the law beyond reasonable
doubt: positive law offerslegal certainty. As a consequence, it is usually unneces-
sary to invoke an authority, such as a judge, to untie the knot in a legal dispute. The
4 J. Hage