The distinction between legality and morality or between “what is moral” and “what is legal” does not seem to be clear to Catholic Christians, particularly to Filipino Catholics. Many seem to equate the two, that is, if something is legal, then it is also moral or acceptable in the eyes of God or of the Church. Teachers of religion in Catholic colleges are often disappointed upon knowing that the students do not seem to know the difference between a civil and a Church marriage. Many students assume that civil marriage by a judge is moral because it is legally and socially acceptable. They thought that couples who are civilly married and cohabiting are not living in sin and therefore they can receive holy communion in the Holy Eucharist without committing a serious sin. They reasoned out that since their marriage are legally recognized by the state and by Philippine society, then these couples are presumed to be morally married in the eyes of the Catholic Church.
This misunderstanding on the morality of civil marriage indicates a confusion with regard to the basic difference between morality and legality. Technically speaking, civil marriage has long been considered by the Church as legal but immoral and thus couples cannot receive Holy Communion worthily. This marriage is legal in a sense that the State allows couples to be married by a judge as long as they comply with the requirements of the Family Code. This is however, is considered immoral, in a sense that the union is not sacramental, meaning, the couple is not blessed and solemnized by the Church and witnessed by the priest, the representative of the Church by virtue of his ordination. Thus, they are considered by the Church as “living in” or cohabiting without the necessary blessing of God. And if they engage in a sexual union, they can be considered to have committed the sin of fornication and thus ineligible to receive holy communion worthily. Legally married couples can still live a life of grace, if they opt not to stay together pending their Church wedding. This case therefore illustrates the fact that what is legal is not necessarily moral. So what then is the difference between these two?
The Relationship between Legality and Morality?
“The relationship between law and morality is both complicated and subtle. This is true even in a situation where a society is very homogeneous and where one might find a large degree of consensus about moral behavior” (Duster in Kelly (ed) 1993: 29). Ideally, laws created by the State through legislation must be based on divine law. And there lots of state laws that reflect the divine laws. The 1987 Philippine Constitution, the fundamental law of the land, for instance, acknowledges that state laws must be consistent with the laws of God. They must not contradict the commandments of God. The divine law must prevail over state law in case they collide.
The root cause of this inevitable clash between state law which defines legality and divine law which defines morality is the vested interests of people who create state laws. More often, lawmakers in the Philippines who come from the elite or from social classes with business interests, file bills or proposed laws in Congress to promote or protect their vested interests rather than to promote the common good or the social welfare of the poor as taught by the Bible and by the Church. For example, a lawmaker who is a son of a rich landowner in Mindanao filed a bill in Congress on alternative fuel like the bio-diesel. However, this seems to be a conflict of interest, critics alleged, for his family and allied landowners would most likely benefit from it if the bill becomes a law. His landowner parents, according to them, intend to utilize their vast idle lands by planting jathropa or other plants for biodiesel production. Legislation in this case was intended to benefit the lawmaker and his/her social networks in the guise of genuine concern for consumers. For critical theorists of law, this is inevitable as law in society is never neutral. It “bends” in favor of the lawmaker instead of its subjects (Ballano 2007: 12).
The laws passed by the Philippine Congress seem similar to that of Peru, a developing country which Hernando de Soto (1989) calls in his book The Other Path as redistributive laws. A country remains poor because the laws created are meant to redistribute wealth rather than creating it. “From this standpoint, the law is essentially a mechanism for sharing a fixed stock of wealth among different interest groups that demand it” (De Soto 1989: 189).
A redistributive legal system neither benefits the rich nor the poor but only those best organized to establish ties with people in power. “It ensures that the businesses that remain in the market are those which are most efficient politically, not economically” (De Soto 1989:191). Laws are then meant to maintain the level of social inequality at status quo and not to democratize wealth. Conflict theorists of law understand the law as an instrument of domination of the powerful over the weak. The law is not ideologically neutral. Law is a discourse which interprets and conveys meaning, but it is a discourse with force behind it. Its impact goes beyond the realm of meaning. Law is a key vehicle for the spread and enforcement of the ruling ideologies, a vehicle of ideological domination (Moore in Lazarus-Black and Hirsch 1994).
The Nature of Legality and the Two General Types of Laws
Legality can be understood as a process of knowing whether an act is legal or illegal based on a legal norm or on a written and official law. It can also refer to a social order based on law. Laws are created and promulgated by the state or by any competent authority in a formal organization or institution. Before we can clearly understand what makes an act illegal or not, we first have to differentiate two general types of legal norms that judge whether something is illegal or not. Legality and its outcome depend on the type of law people invoke to pursue their case.
Sociologists of law distinguish two kinds of law used by society to measure legality: the substantive law and procedural law. The substantive law refers more to the substance or the content of the law itself as written in a legal code like the powers of President as written in the 1987 Constitution or the grounds for civil annulment of marriage in the 1987 Family Code, the law on libel and intriguing against honor in the Revised Penal Code, or even the rules on proper conduct contained in the student handbook of the school. In the Philippines, the sources of the moral popular and general types of substance laws are found in legal codes and set of laws such as the 1987 Constitution, the New Civil Code in the Philippines, the Revised Penal Code, the Tax Code, Special Penal laws, Commercial laws or E-Commerce law, Intellectual Property Code in the Philippines, the Code on Judicial Conduct, etc. In the Catholic Church, the main source of substantive laws (and also procedural law) is the Code of Canon Law. The word “canon” in Greek literally means “ a measuring stick”. Thus, the laws of the Catholic Church are called canons. This Code is a compilation of all laws in the Church throughout the centuries on how a Catholic Christian should live his or her life as a member of the institutional Church.
The procedural or sometimes called remedial laws are those laws that deal with steps or procedures on how to process legal cases in court or any administrative body This includes procedures on how to file a case, to make an appeal, to present evidence, how to make and present a legal pleading and the like. This is the type of law that lawyers make a living since these are the court technicalities that they know and are paid for by their clients. In the Philippines, the popular source of this type of law is the Revised Rules of Court in the Philippines, a handbook of court procedures which is created and constantly modified by the highest court of the land, the Supreme Court. Procedural rules can also be found in legal manuals of schools, organizations, institutions or administrative or investigating bodies. In the Catholic Church, laws are found mainly in the Code of Canon Law and in the pastoral directives by the Pope, Sacred Congregations of the Roman Curia or bishops that deal mainly with Church discipline.
When an act becomes illegal or against a human law, we have to qualify then which type of law is violated: is it substantive or procedural? Violating the substantive law is generally considered more serious than violating procedural law. After all, the spirit of the law is more important than the letter of the law. The merit of the case has more value as it involves violation of human rights rather than technicalities of legal procedures. The former is an actual transgression of social or moral value if proven by the court but the latter consists only of lapses in procedural matters–though very often lawyers consider legal procedures as very vital to a successful prosecution or defense of a legal case. Many prisoners in Bilibid Prisons, for instance, claim that they are convicted not because they are guilty but because they are poor who cannot afford to hire good lawyers with shrewd knowledge and expertise with regard to technicalities in court who can acquit them.
The Basis of Legality
The foundation or basis of legality is actually the human law or the laws created by men or women, with the exception in the Catholic Church where legality in the Code of Canon Law is generally equated with morality. The 1987 Family Code of the Philippines, for instance, was created by a group of people, a commission formed by the state, and was presented to Congress for review and approval and finally to the President for approval as law. Nothing is spiritual or ecclesial in the process—of course one can presume that these people prayed to God for guidance and consider the common good in creating and approving this Code.
Unlike Church laws where the norms and directives of the Scriptures, Church teachings and Tradition are strictly and seriously taken into consideration, human laws are generally created through human reason based on prevailing cultural norms and values which are not necessarily aligned with the divine teaching. One sociological theory about the law states that laws are formal formulation of existing practices and customs. When informal sanctions such as ostracism, shaming, or gossiping are no longer effective in upholding an existing practice, then competent authority usually passes a law to formalize this custom to ensure effective enforcement. The law then, in this sense, becomes a legitimizer of an existing value or practice. The problem, however, in this process is that not all existing practices or values in society are permeated with religious values. More often, values, particularly political values, are shaped and manipulated by the elite or by those who hold power in society. Thus, it is probable that legal authority like the Philippine Congress can legislate an “immoral” or “sinful” social system or practice.
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