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Is murder illegal because its wrong?
Or is murder wrong because its illegal?

August 7, 2014

Response from Stephen Maitzen on August 7, 2014
Your first question -- Why is murder illegal? -- is a sociological and/or historical question about the law and therefore a question on which philosophers, as such, aren't experts. Nevertheless (!) I feel confident in saying that the answer is yes: the direction of explanation goes from moral wrongness to illegality. Murder is a form of homicide meeting various conditions, such as being intentional and being done "with malice aforethought." Why does modern society outlaw murder but not, say, an adult's listening to "Baby" by Justin Bieber? Both actions reflect badly on the agent, but only the former is regarded as a serious moral wrong. When they start making things illegal, liberal societies tend put actions meeting that description at the top of the list.

Your second question is more properly philosophical, and I think the answer is clearly no. It's at least imaginable that a society's legal regime might outlaw some things but not outlaw murder. Yet murder would remain morally wrong: the society's legal regime would be morally deficient.
Response from Andrew Pessin on August 19, 2014
a great question -- a deep one, and an old one -- basically grounded in the classic theistic question addressed by Plato (in Euthyphro) and many others since -- does God command us not to do things (such as murder) because they're wrong, or are they wrong (simply) because God commands us not to do them ... Stephen's response is excellent, but I'll offer another angle. Re the first half -- is murder illegal b/c it's wrong -- no doubt those legislators who have illegalized murder are at least partly (maybe primarily/exclusively) motivated by its wrongness (that's the sociological/empirical question) -- but presumably your question is meant to be more general, i.e. not merely restricted to murder, whose 'wrongness' most everyone can agree to (though not everyone). If you were to ask 'of all those things that are illegal, are they illegal b/c they are wrong?' surely for many/most of them the answer would be 'no.' It's illegal to go through a red light, not b/c going thru red lights is morally wrong but b/c the powers that be, in their wisdom, have established various conventions for the smooth/safe running of society, so they've set up traffic laws to that end -- just which legislation is motivated by morality and which by (say) the need for societal conventions is an empirical question -- but no doubt both factors play at least some role in much legislation ... (and other factors as well) ... re the sec on half -- 'is murder wrong b/c it's illegal' -- Stephen is right to stress the fundamental distinction between law and morality, but I'll just add one point -- the case might be made that, in general, it's morally wrong to break the laws of your society (all else being equal) -- so at least PART of the wrongness of murder (perhaps a very small part) would consist in the fact that committing it is to break the laws ... (again, generalizing the topic: running a red light IS probably wrong precisely because it's illegal ...) Now of course there are some important complicated cases -- for example, civil disobedience -- in some cases you might argue it's 'right' to break the law -- if you think the law itself is morally wrong -- but that's handled by the 'all else being equal' clause I mentioned ....

hope that's useful!

ap


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