I just read this news where a man did not leave anything to his daughters in his last will, and that has been effectively corrected by the court because the man "breached his moral duty to his daughters".

A quick search shows that the roots of this kind of judgment come from case law involving the Family Protection Act 1955.

So far I have been under the impression that, in Western English-speaking countries, law does not deal with morals. Law is the same for all. Morals are subjective and therefore should not be judged by (even though morals affect what the law is).

To what extend is this view not true? How frequently do phrases like "moral duty" appear in judgments nowadays?

  • "So far I have been under the impression that, in Western English-speaking countries, law does not deal with morals." Your impression is effectively wrong. Classically, law may be divided into mala is se (evil in themselves -- moral issues) and mala prohibita (evil by prohibition -- regulatory things where some decision must be made for society to function). – eques Nov 8 '18 at 15:33
  • That morals are subjective is probably something that most authorities on the subject would disagree with. – Michael Hardy Nov 9 '18 at 5:26
  • @MichaelHardy there are no authorities on morals. Those that might be positioned as such would be merely representing the views of some/most people, which does not make them objective. – Greendrake Nov 9 '18 at 5:36
  • @Greendrake : There are indeed such authorities, but they disagree with each other, and they do not merely represent the views of most people. But so what? 25 centuries ago little was known about the topics now studied in the physical and biological sciences, and such authorities existed disagreed on basic things, but that doen't mean there were no objective facts involved. – Michael Hardy Nov 9 '18 at 17:25
  • @MichaelHardy There is fundamental difference between disagreeing about the form of Earth, laws of physics etc. and standards of right/wrong behaviour. The former can be proved/verified objectively. The latter can't and so will stay subjective. – Greendrake Nov 9 '18 at 19:59

Some laws exist to enforce moral values, or at least the values that the legislature agreed were good. The answer by Dale M identified some of these.

Other law exists to enforce policy choices that cannot really be called 'moral'. For example, whether the tax rate on sales is X% or Y% is not really a moral issue. Whether the notice of the interest rate in a consumer loan document must be in 12 point or 14 point type is not a moral issue. Whether title to goods passes when the price is paid or on delivery is not a moral issue.

In any case, the legislature may take its view of morality into account when deciding what laws to pass. But once a law is in effect, it is (in modern times, at least) usually treated as a rule separate from any notion of morality, although one hopes that it is not against morality. It is unusual for a judge to modify the law to make it better conform with morality (in the judge's opinion). There are cases where legal rules which would otherwise be too harsh are modified. For example, courts may refuse to enforce contract terms that they consider "unconscionable" or "against public policy", even when there is no specific law prohibiting those specific terms. However, the trend has been towards doing this by a specific law passed by the legislature, not by the moral values of a particular judge.

(US Constitutional rights are something of an exception. What constitutes "due process of law", "cruel and unusual punishment", or an "unreasonable search" is largely a collection of the moral and ethical decisions of judges since the Constitution was adopted, plus some carried over from the English Common Law prior to that time.)

It is now somewhat unusual for a probate judge to overturn a legally executed will by a competent person on the grounds that it was not morally proper. In the US, at least, there is no duty to leave anything to one's children, and a person can leave everything to another person or some institution. I had thought that was also true in AZ, where it seems this took place. But judges, and particularly probate judges, still have a good deal of discretion.

Edit: It might be that in the will case mentioned in the question, the party wanting the will enforced as written could appeal and have the decision overturned as an abuse of discretion. Even in the US, I am not by any means clear on when an appeals court would do this: generally only when they feel that the lower court was far outside the limits of what is acceptable. I have no idea what the rules would be in Australia. If the testator had made specific statements about why he wanted to leave nothing to his daughters, that might be a factor.

Edit: Another answer says "With respect to wills, the law gives effect to the moral position that a person is required to adequately provide for their dependents in so far as they are able. That is, it is immoral for those dependents to be thrown on the mercy of charity or the provisions society makes in its laws about poverty." However, at least in the US, and I think in most countries, the law as such takes no such position. In one particular case a judge held that it was improper for a rich testator not to leave a sizable sum to his children. Another such will coming up before a different judge two days later may not be held to the same standard -- unless there is in fact a general principle here which is generally enforced in that jurisdiction, which the reports of the case did not mention. In several other jurisdictions, people can and do with reasonable frequency leave nothing to their children, and courts do not overturn these wills. The moral principle, if any, is that a person may leave his or her own property however he or she may choose, if of sound mind.

  • I disagree with your position fundamentally - every single one of your examples in the 2nd paragraph is a manifestation of a moral (aka political) position. Sales tax is a regressive tax so its rate is a fairness judgement, the size of a font is a bright line rule to give effect to the moral position that people should be adequately informed of their obligations and property rights are absolutely a moral issue. The specific details may only have a tangential effect but all law is a collection of specific detail which has a monumental effect. – Dale M Nov 7 '18 at 23:58
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    @Dale M : Then we differ on where the boundary of "moral" judgement lies. Nor do i agree that a political decision is always, or even usually, a moral one. Often it matters much more that there is a rule than what the rule is. I cannot see any moral gounds for saying that there should or should not be "right on red". But it is vital that there should be a rule and people know it. I do agree that "law is a collection of specific detail which has a monumental effect". I don't agree that those choices of detail or policy are all moral choices. i could expand on this. – David Siegel Nov 8 '18 at 0:14
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    I think you’ve misread NZ (New Zealand) as AZ. Family provision legislation, which allows for a will to be altered to make proper provision for the testator’s dependants, originated in NZ and now exists in (at least) Australia, Canada, the United Kingdom, Singapore and Malaysia. So the United States seems to be an outlier in the English-speaking world. – sjy Nov 8 '18 at 6:09
  • @DaleM I would say there is a distinction between the law having a moral effect (i.e. generally prohibiting an immoral action or encouraging a moral one) and a law having a moral consideration in how it is drafted. Taxing at a certain rate or taxing a certain item may certainly be decided for immoral reasons, but it is not intrinsically a moral issue (i.e. it is neither immoral ipso facto to pay taxes nor to establish a tax). – eques Nov 8 '18 at 16:15
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    @DaleM The 19th century cases cited on pages 1 and 2 of the paper I linked say otherwise: ‘everyone is left free to choose the person upon whom he will bestow his property after death entirely unfettered ... we must give effect to his will, however much we may condemn the course he has pursued.’ Disinheritance could be evidence of a lack of testamentary capacity, though. – sjy Nov 8 '18 at 20:37

Law is entirely about morals.

The system of law in any jurisdiction is an imperfect reflection of the amalgamated moral code of its society. For example:

  • Contract Law gives force to the moral imperative that you should keep your promises,
  • Tort Law to the moral imperative that you should make restitution for the harm you do to others,
  • Equity Law that people should behave fairly to one another. Also, anti-discrimination Law,
  • Trust Law that people who look after other people’s stuff should behave with integrity,
  • Criminal Law that wrong-doing should be punished.
  • etc.

All of these are moral positions.

With respect to wills, the law gives effect to the moral position that a person is required to adequately provide for their dependents in so far as they are able. That is, it is immoral for those dependents to be thrown on the mercy of charity or the provisions society makes in its laws about poverty.

That moral position is extended to the position that you should provide for those dependents even after they stop being dependent unless you articulate a good reason not to - like your kids were money-grubbing a**wipes who never lifted a finger for you when you were alive.

  • It is no question that law formalizes certain high-level morals, settles them in concrete form so that they're no longer subjective. This makes judges able to say "you broke the law" instead of "your actions were immoral" or similar. The question is about the cases where, despite morals being settled in law, assertions like the second one are still used by judges (as demonstrated in the referenced case). – Greendrake Nov 7 '18 at 22:22

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