Relationship Between Public Law and “Morality”

The laws enacted become expressions of public morality.  As Justice Holmes put it, “(t)he law is the witness and deposit of our moral life.”[420] “In a liberal democracy, the law reflects social morality over a period of time.”[421] Occasionally though, a disproportionate political influence might cause a law to be enacted at odds with public morality or legislature might fail to repeal laws embodying outdated traditional moral views.[422] Law has also been defined as “something men create in their best moments to protect themselves in their worst moments.”[423] Even then, laws are subject to amendment or repeal just as judicial pronouncements are subject to modification and reversal to better reflect the public morals of a society at a given time.  After all, “the life of the law…has been experience,” in the words of Justice Holmes.  This is not to say though that law is all of morality.  Law deals with the minimum standards of human conduct while morality is concerned with the maximum.  A person who regulates his conduct with the sole object of avoiding punishment under the law does not meet the higher moral standards set by society for him to be called a morally upright person.[424] Law also serves as “a helpful starting point for thinking about a proper or ideal public morality for a society”[425] in pursuit of moral progress.

In Magno v. Court of Appeals, et al.,[426] we articulated the relationship between law and public morality.  We held that under the utilitarian theory, the “protective theory” in criminal law, “criminal law is founded upon the moral disapprobation x x x of actions which are immoral, i.e., which are detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society.  This disapprobation is inevitable to the extent that morality is generally founded and built upon a certain concurrence in the moral opinions of all. x x x That which we call punishment is only an external means of emphasizing moral disapprobation: the method of punishment is in reality the amount of punishment.”[427] Stated otherwise, there are certain standards of behavior or moral principles which society requires to be observed and these form the bases of criminal law.  Their breach is an offense not only against the person injured but against society as a whole.[428] Thus, even if all involved in the misdeed are consenting parties, such as in the case at bar, the injury done is to the public morals and the public interest in the moral order.[429] Mr. Justice Vitug expresses concern on this point in his separate opinion.  He observes that certain immoral acts which appear private and not harmful to society such as sexual congress “between a man and a prostitute, though consensual and private, and with no injured third party, remains illegal in this country.” His opinion asks whether these laws on private morality are justified or they constitute impingement on one’s freedom of belief.  Discussion on private morality, however, is not material to the case at bar for whether respondent’s conduct, which constitutes concubinage,[430] is private in the sense that there is no injured party or the offended spouse consents to the concubinage, the inescapable fact is that the legislature has taken concubinage out of the sphere of private morals. The legislature included concubinage as a crime under the Revised Penal Code and the constitutionality of this law is not being raised in the case at bar.  In the definition of the crime of concubinage, consent of the injured party, i.e., the legal spouse, does not alter or negate the crime unlike in rape[431] where consent of the supposed victim negates the crime.  If at all, the consent or pardon of the offended spouse in concubinage negates the prosecution of the action,[432] but does not alter the legislature’s characterization of the act as a moral disapprobation punishable by law.  The separate opinion states that, “(t)he ponencia has taken pains to distinguish between secular and private morality, and reached the conclusion that the law, as an instrument of the secular State should only concern itself with secular morality.” The Court does not draw this distinction in the case at bar. The distinction relevant to the case is not, as averred and discussed by the separate opinion, “between secular and private morality,” but between public and secular morality on the one hand, and religious morality on the other, which will be subsequently discussed.

Not every moral wrong is foreseen and punished by law, criminal or otherwise.  We recognized this reality in Velayo, et al. v. Shell Co. of the Philippine Islands, et al., where we explained that for those wrongs which are not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of the New Civil Code, dealing with Human Relations, provide for the recognition of the wrong and the concomitant punishment in the form of damages.  Articles 19 and 21 provide, viz:

Art. 19.  Any person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith.

xxx                                                                          xxx                                                                   xxx

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. (emphasis supplied)

We then cited in Velayo the Code Commission’s comment on Article 21:

Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved), would vouchsafe adequate legal remedy for that untold numbers of moral wrongs which is impossible for human foresight to provide for specifically in the statutes.

But, it may be asked, would this proposed article obliterate the boundary line between morality and law?  The answer is that, in the last analysis, every good law draws its breath of life from morals, from those principles which are written with words of fire in the conscience of man.  If this premise is admitted, then the proposed rule is a prudent earnest of justice in the face of the impossibility of enumerating, one by one, all wrongs which cause damages.  When it is reflected that while codes of law and statutes have changed from age to age, the conscience of man has remained fixed to its ancient moorings, one can not but feel that it is safe and salutary to transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring quality which ought to be one of its superlative attributes.

Furthermore, there is no belief of more baneful consequence upon the social order than that a person may with impunity cause damage to his fellow-men so long as he does not break any law of the State, though he may be defying the most sacred postulates of morality.  What is more, the victim loses faith in the ability of the government to afford him protection or relief.

A provision similar to the one under consideration is embodied in article 826 of the German Civil Code.[433] (emphases supplied)

The public morality expressed in the law is necessarily secular for in our constitutional order, the religion clauses prohibit the state from establishing a religion, including the morality it sanctions.  Religious morality proceeds from a person’s “views of his relations to His Creator and to the obligations they impose of reverence to His being and character and obedience to His Will,” in accordance with this Court’s definition of religion in American Bible Society citing Davis.  Religion also dictates “how we ought to live” for the nature of religion is not just to know, but often, to act in accordance with man’s “views of his relations to His Creator.”[434] But the Establishment Clause puts a negative bar against establishment of this morality arising from one religion or the other, and implies the affirmative “establishment” of a civil order for the resolution of public moral disputes.  This agreement on a secular mechanism is the price of ending the “war of all sects against all”; the establishment of a secular public moral order is the social contract produced by religious truce.[435]

Thus, when the law speaks of “immorality” in the Civil Service Law or “immoral” in the Code of Professional Responsibility for lawyers[436], or “public morals” in the Revised Penal Code,[437] or “morals” in the New Civil Code,[438] or “moral character” in the Constitution,[439] the distinction between public and secular morality on the one hand, and religious morality, on the other, should be kept in mind.[440] The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds.  “Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms.”[441] Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda.  The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a “compelled religion,” anathema to religious freedom.  Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy.  As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens.  Expansive religious freedom therefore requires that government be neutral in matters of religion; governmental reliance upon religious justification is inconsistent with this policy of neutrality.[442]

In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose.  That is, the government proscribes this conduct because it is “detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society” and not because the conduct is proscribed by the beliefs of one religion or the other.  Although admittedly, moral judgments based on religion might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral disapprobation punishable by law.  After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven.[443] Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion clauses.  Otherwise, if a law has an apparent secular purpose but upon closer examination shows a discriminatory and prohibitory religious purpose, the law will be struck down for being offensive of the religion clauses as inChurch of the Lukumi Babalu Aye, Inc. where the U.S. Supreme Court invalidated an ordinance prohibiting animal sacrifice of the Santeria.  Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitution’s religion clauses prescribe not a strict but a benevolent neutrality.  Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits.  Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests.

About Erineus

Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Church and State, Constitutional Law, Constitutional Rights, Law and Morality, Religious Freedom and tagged . Bookmark the permalink.

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