Legal moralism has been a principle that prohibits people from acting or engaging in things which are detrimental to the society with the use of laws and its enforcements. This includes laws which prohibit certain actions that can lead to several problems that may affect the whole social fabric.
Such laws include those that prohibit the use of illegal drugs, prostitution and abortion. This actions or engagement in this type of acts may most likely affect the citizens in a rather negative matter that could destroy not only the participating individual’s life but also the lives of the people around him.
In line with this principle is a principle that shall limit a person’s liberty through the use of customary rules prescribed by the society in which the person lives. It differs from the principle of legal moralism in the sense of “formality”.
Restriction of Liberty
While legal moralism is concerned about constitutional laws, this principle is more likely inclined to the limiting effect of customary moral rules which are more effective than legal laws. This principle shall from this point onwards be referred to as customary moralism principle.
This type of principle acts in the same manner that legal moralism does. However, as stated above, traditional moralism is more effective than legal moralism. Its effectiveness lies on the way that it has been formulated.
Compare and Contrast
Unlike most legal laws which determines the right and wrong inscribed as laws of the society, customary rules and traditions determines the right and wrong principles which lies in the culture of a society.
These rules have been tested through time and generation by the whole society. This is the reason why these laws are easier to understand. People find it efficient since it was directed and made through the use of actual and practical experiences. Unlike legal laws which are mostly hypothetical and less pragmatic.
Legal laws are made by an assembly of men that shall represent the whole society in a conference or convention. Customary rules are prescribed mostly by elders, who have more experience than the present generation.
Since these rules are based and may differ in experience, they are not implemented in the society in a forceful manner. Instead, society shall pick what rules are still beneficial and applicable in the situation. Thus, customary rules undergo practicality checks, every time the rules are being implemented or are being followed.
Society: Laws versus Tradition
It evolves with the society. It represents the society. People are more inclined to follow this principle not because of its force but because of customs and traditions.
For instance, the introduction and the success of organizations such as the Cosa Nostra which is more popularly known as Mafia, prevails even after there have been several legal precautions and actions taken.
The Mafia is an organization which is generally against the fascist regime that dominates the Italian region. Since it is an organization, it has several guiding principles and rules that enable the group to grow and survive. Accordingly, the Mafia acts as a second government in areas such as Sicily.
The rules that were constructed or enforced by the Mafia are followed more religiously than the laws enforced by the government. Omerta, a favorite law in Mafia is the law of absolute silence that denotes an individual could not say anything that would expose the Mafia.
Even, if it means that they could be incarcerated, tortured or even convicted, it was believed that the Sicilians would not tell a word or would deny anything he knows.
Legitimate Traditional Actions
Actions which this principle might consider as legitimate are mainly actions which are traditionally been accepted by the general public that were made legal. In some country, prostitution is legal since it has been traditional. In the Netherlands, the use of “marijuana” is legalized. There are also some countries that legalize abortion if the fetus is not more than three months. These types of prohibitions by the law rooted from certain traditional beliefs and customs of the people.
Traditional moral principles which have legal counterparts could be interfered by the law. However, there are certain traditional beliefs such as burning of animals for sacrifices wherein authority and law has no right to intervene.
Commonly, traditional rules which are considered as legitimate are those which promotes the welfare of the society. This are the societal norms which are approved by the government and are thus legalize. Thus, the legitimacy of any traditional action depends on which government or country an action was made.
Traditional Moralism versus Harm Principle and Paternalism
Traditional also to fraternities are hazing ceremonials and rumbles. If Traditional moralism would be used, this type of action would be normal. However, of course, this would create problems in the legal realm.
In such case this kind of actions shall be controlled by the proper authorities such that this would not cause death or other mass violence. This action would either fall in the harm principle or paternalism.
It falls in the harm principle since it must be controlled or even not permitted if it induces harm to other people.
It falls under paternal principle because there are laws which prohibit fraternity violence in able to protect the members of the fraternity from injuries by refusing to recognize fraternities who are recorded to conduct delinquently.
While legal moralism is against actions such as gambling and prostitution, traditional moralism permits them. In this regard, traditional moralism could be seen to fall under the harm principle.
Traditional moralism could also fall under paternalism in the sense that it is a guide for action through rules set by the majority of the society in able to control certain actions that would negatively affect the society.
Defense of Traditional Moralism
I believe that traditional moralism could effectively restrict freedom in able to promote the welfare of a society since it is constructed through convention by the society. It is more likely to be more effective since it commonly involves the norm within the society.
Although this might create several factions in the society that might create their own traditions and customs, this kind of interferences might not be able to make it through the main stream culture. Failing to do so, these actions would be considered as deviant by the society in which their actions are not permitted.
Traditional Moralism can also be viewed as a principle that acknowledge and encourage liberty, more than restricts it. This is not arguable and may in fact be true, more likely when the legal rules is composed of laws which is not suitable and is not agreeable with the society.
Such as laws which are imposed only by the government or by another government in a particular country. This could best be demonstrated on colonized countries or in war-stricken country such as Iraq. The laws that the American government may not be suitable or efficient in the society such as in Iraq; in such case traditional moralism would be more beneficial and applicable than legal moralism.
Leighton, P. (2007). Paternalism and Legal Moralism. Retrieved on November 14, 2007. Retrieved from: http://www.paulsjusticepage.com/cjethics/2-limitsoflaw/harmprinciple.htm