How Can the Legal System Decipher Right and Wrong?
Values are the lifeblood of law; they not only shape our judicial system but also influence our behaviour and actions in daily life. The question of subjective right and wrong often arises across multiple disciplines, particularly in ethics, law, literature and political science. The nexus between moral philosophies and how the legal system seeks to apply them in practice is known as jurisprudence–the theoretical study of law.
The average person views the law as a systematised form of justice, while justice itself is often seen as a somewhat chaotic collection of moral principles. A common belief about the relationship between law and morality is that the law exists to promote moral values, to maintain the conditions necessary for a moral life, and to help people lead sober and productive lives. Judges, like all humans, are prone to cognitive bias and error. These very flaws exist within our institutions, particularly within the legal system. While the law is expected to be both fair and unbiased, it is interesting to examine how we come to the decision of judging right and wrong.
The terms "subjective rightness" and "subjective wrongness" were introduced to address gaps in the existing legal and philosophical vocabulary. The interplay between morality and legality creates a unique crossroad that allows us to examine how the legal system uses specific criteria to make judgments and establishes frameworks for justice. The question of how this framework is connected to morals often arises when we consider the process of a judge determining if a case is “wrong.” They rely on moral principles, which create the foundation of our society.
Much of this discussion took place during the Nuremberg trials held between 1945 and 1946 to prosecute Nazi leaders for crimes against humanity. It introduced two competing ways of thinking about law itself; legal positivism and natural law theory. Legal positivism states that law is whatever a government declares it to be, separated entirely from morality. Natural law theory, by contrast, argues that true law must align with principles of justice, reason, and human rights that exist beyond any government's authority.
The judges at their bench (left) in Room 600 at the Palace of Justice, Nuremberg, during proceedings against leading Nazi figures for war crimes at the International Military Tribunal (IMT), Germany, 1945
The Nazis had passed laws that stripped Jewish people of citizenship, confiscated their property, and eventually authorized their systematic murder. But they were laws, formally enacted through the German legal system. This created a devastating puzzle for the Nuremberg prosecutors. The positivist defense was that they had done nothing legally wrong because they had followed the laws of Nazi Germany, particularly that of Adolf Eichmann, the architect of the Holocaust's logistical machinery, and other Nazi officials maintained that they were merely administrators executing legal directives.
Eichmann infamously claimed he felt no hatred toward his victims; he was simply fulfilling his bureaucratic duties within the legal framework established by the Nazi state. Hermann Göring, Heinrich Himmler, and other high-ranking officials similarly argued that their actions, while now condemned, were legally sanctioned at the time they were committed. They hadn't violated German law; they had upheld it. This defense exposed a terrifying implication of pure legal positivism: if law means nothing more than "what the government says," then even genocide can be legal—if the government says so.
The prosecution, led by American Chief Justice Robert Jackson, argued the Nazi laws themselves were null and void from their inception because they violated fundamental human rights that transcend any government's authority to override. The Nazi "laws" were fraudulent; they had no genuine legal standing because they defied the essential purpose of law, which is to regulate human conduct in accordance with justice. True law, the prosecution argued, must serve human dignity and universal moral principles.
They ruled that defendants could be prosecuted for crimes against humanity even if those crimes had been authorized by Nazi law, because the Nazi legal system itself had violated higher principles of justice embedded in international law and human conscience. If we allow courts to retroactively punish actions that were legal when performed, we risk undermining the rule of law itself. The rule of law depends partly on the principle that individuals can rely on existing laws to know what they can and cannot do without fear of unexpected prosecution. If we overturn this principle to punish gross injustices, have we saved morality at the expense of legality?
"Selection" of Hungarian Jews on the ramp at Auschwitz-II-Birkenau in German-occupied Poland, May/June 1944, during the final phase of the Holocaust. Jews were sent either to work or to the gas chamber.
A study by the University of Baltimore states that the ultimate factor which influences a judge's decision is their “intuitive sense of right and wrong in the particular case.” Using this intuition as a foundation, judges then engage in critical analysis to support and justify their decisions. Theodore Schroeder goes further to state that these justifications are based on personal impulses that are affected by previous experiences. These are Realist theories, which state that judges arrive at their decisions before analysing the precedent and statutory law and rather base their decisions on the facts of the case first.
The Hart-Fuller debate reveals an enduring tension in law that cannot be fully resolved, only managed. We need judges to follow rules to maintain predictability and protect against power. But we also need judges to consult justice and natural law principles to prevent legal systems from becoming instruments of oppression. And realistically, judges will always blend these two functions, deciding partly on intuition and partly on reasoning, then justifying their decisions through legal arguments.
The question isn't how to eliminate intuition, as that is impossible. The question is how to harness it, constrain it, and make it accountable to principles larger than individual whim. This is what Nuremberg attempted: a prosecution rooted in the intuitive conviction that genocide is evil, justified through natural law reasoning, conducted within institutional structures that demanded careful legal argument and international consensus. It wasn't purely Hart or purely Fuller, but a pragmatic blend informed by realist insights about how judges actually work.
According to legal psychology, the core factors that influence a judge’s decisions remain legal knowledge and experience– the latter playing an equally important role. It enables judges to better understand the context of a case and apply legal knowledge to ensure a well-rounded decision. This process, however, is also shaped by internal psychological factors: cognitive bias, emotional reaction and motivation. Cognitive bias is a natural trait that humans cannot shed even the most rational judges are affected by this during decision-making. Beyond internal psychology, the socialisation and socioeconomic background of the judge are equally important. For instance, a judge who grew up in an economically underdeveloped area may show empathy to cases where victims share a similar background.
The answer remains ambiguous; it cannot be said with the research conducted in this field and others, whether morality and legality are deeply interconnected. While the idea of legality and morality being utterly separate seems far-fetched, it is not absolute that the two should be deeply connected either, as morals are interchangeable, fluid– and vary from individuals. This raises an important question: are legal outcomes ultimately shaped by the fixed moral framework of a single decision maker?
Renowned philosophy professor Holly H Smith argues that justice – the act of upholding fairness and moral righteousness– is based on fundamental moral principles. We place virtue as a highly sought trait in society, particularly in leadership positions. For example, a virtuous politician is admired for upholding strong moral standards, yet these leaders are following their own, even if they are universally accepted.
The intertwining of morality and law is not without its complexities. Morality often serves as the backbone of law, as legislators typically embed their moral frameworks into the laws they create. Legal practitioners must navigate ethical principles in their work, and judges similarly operate within a context where legal proceedings cannot be disentangled from moral considerations. Ultimately, the interplay between law and morality challenges us to consider how our legal systems can embody moral values and whether these values are appropriately aligned with the pursuit of justice and equity. The debate over these issues is likely to persist, highlighting the dynamic and often contentious nature of law as it seeks to reflect and enforce moral standards in society.