“Goodness, then, is apparently a state of mental health, Bloom, and vitality; badness is a state of mental sickness, deformity, and infirmity.”
Plato, The republic
Mauricio Macri committed no crime by striking the deal that was signed by the government and Correo Argentino in 2016; not even the prosecutor who is in charge of the case speaks of crime or illegal action, she just describes the agreement as “abusive”. This whole conflict revives old debates – as old as democracy itself – about morality and legality. The tensed relationship between both concepts, that at times appear trade-off free, can be tracked down to Plato’s Republic. In The Republic, Socrates spends most of the book trying to argue why acting in a morally sound manner is beneficial. He was first spurred by Thrasymachus’s statement that morality is nothing more than the law of the strongest and, thus, acting immorally will always benefit the agent (assuming he is not the strongest, meaning, the government, of course). As he tries and describes the benefits of behaving morally, Socrates gives precise definitions of morality, of a moral person and of moral communities (apart from establishing the theoretical bases for totalitarianism as he develops his moral theory).
There are two main definitions of morality in The Republic, which the main characters in the debate do not seem to distinguish, or at least not explicitly, probably because the distinction has been blurred by the centuries of translations. Thrasymachus defines morality as a determined set of institutional rules, or, in simple terms, laws. Acting morally is, therefore, acting in accordance to that set of rules. Now, Socrates seems to define morality in a substantially different way. In the first book, Socrates tries to convince Thrasymachus that even if morality and legality are the same thing, laws are not always created with the view of benefiting the ruling class – and that acting immorally (against the law) would not be beneficial. His arguments were good enough to defeat Thrasymachus but not enough to convince himself. After defeating his adversary, he continues on his quest for morality and the foundations of moral behaviour. Socrates will finally understand that “Goodness, then, is apparently a state of mental health, bloom, and vitality; badness is a state of mental sickness, deformity, and infirmity”. This state of mental health consists in the harmonious participation of the three parts of the mind: the rational, the desirous and the passionate part. The rational part should rule over the others, whereas the passionate part should be “like a dog” to the rational one giving it strength over the desirous part. Here stand the two main schools of law, even of our time, ius naturale and ius positivum.
Now and onto Mauricio Macri: using this theoretical and philosophical framework, it can be hypothesised that his actions where legal and still immoral. That Mauricio Macri acted in accordance with the law is a fact, no rational or knowledgeable individual would argue the contrary, but question remains:Is legality equivalent to morality? Everything that is legal is morally permissible?
Macri’s case insinuates – probably more than that – a negative answer to these questions. Although the law as a moral code is sometimes narrower and sometimes more permissive than basic moral standards, it is clear that there is no equivalence either way. Macri’s action is morally unjustified, there is no value, categorical imperative, utilitarian equation or ethical theory that saves the agreement from being absolutely immoral, despite being absolutely legal. This dual nature of the deal is so evident that Macri chose to “go back to square one”, understanding that it violated every moral proposition. This is the debate behind the agreement, and the underlying question that ought to be answered that has arisen from this scandal.
By extrapolating the case of Correo Argentino and conceptualising it, it is necessary to consider in what specific way there has been a divergence between legality and morality. It is clear that laws do not apply utilitarian, for example, or are not as restrictive as the categorical imperative. What I am trying to get at is not that actions that are legal should nevertheless be deemed immoral if they are impermissible in some theory out of the entire set of moral theories. The dilemma is not about legal system that are based off utilitarian standards versus Kantian ethics, it is not a conflict between moral systems. Rather, it is a conflict between the notions of morality and legality in themselves. In order to avoid this apparent dead-end, it is prudent to reduce morality to a specific set of rules that can be contrasted with positive law. This is what the constitution intends to be, a moral standard for the entire legal system. Nevertheless, a further step is needed. The moral system that underpings constitution must be dissected, whilst the moral basis of the constitution itself extracted. This is not present in any article but in all of them as a whole.
The codification of morality into a legal code seems – ex-ante – utopic due to procedural requirements, but it is also undesirable. Moral theories are always designed with the aim that they are rigid and universal, which often implies biting the bullet when presented with some tricky counterexamples. This inflexibility inherent to pure philosophical moral systems seems adverse in legal codes. Where context is undetermined and unimaginable, moral intuition and character criteria proves to be required. Nevertheless, this article did not intend to pass judgement, but instead shine a light on an underlying dilemma of contemporary politics.