Version 1 Page 17 2/18/2013
Law and Morality
Part One - An introduction to law and morality
Law
Law is not a term that lends itself to easy definition. To discover what men believe law is, we need to look at two distinctive theories. These are legal positivism and natural law.
Legal positivism
Positivists believe that a law is a legal rule which, if made in the manner recognised by the legislative power in the state, is valid irrespective of its content – in otherwords that as long an elected parliament debates and makes the law everyone must abide by it.
Austin is perhaps best known for developing the command theory of law. He argued that a law is a command from a sovereign whom the population at large is in the habit of obeying, and it is reinforced by the availability of a sanction. Put simply, laws are orders backed by threats. A law, therefore, is the expressed wish of the sovereign and as such is distinguishable from other commands such as those from God or from an employer. The sovereign is the person or body whom others habitually obey, and who is not in the habit of giving obedience to anyone else.
Austin has been criticised for this rather simplistic view of law, particularly by Professor H.L.A. Hart, partly because it is difficult to identify a sovereign in many states, but also because many areas of law such as contract, which grant powers to people, do not fit neatly into such a definition. As a legal positivist, he insisted on the separation of law and morality. However, he developed a much more sophisticated model than Austin’s to explain the nature of law. There are, he argued, two categories of rules, called primary and secondary rules, which, in combination, form the basis of a functioning legal system.
Primary rules either impose legal obligations, as in criminal law, or they grant powers, as in the power to make a will in the law of succession, or the power to enter into a contract.
Secondary rules are concerned with the operation of primary legal rules. Hart identified three specific secondary rules. Firstly, the rule of recognition sets criteria for identifying primary legal rules. These criteria would include reference, for example, to Acts of Parliament and judicial decisions. Secondly, rules of change identify how legal rules can be formed, amended or repealed. For example, in the case of an Act of Parliament, reference would be made to the various readings in the House of Commons and the House of Lords, and to the need for royal assent. Thirdly, rules of adjudication enable the courts not only to settle disputes, but also to interpret the law.
Hart argues that a legal system is established by the union of these two sets of rules. However, two further conditions are required for this system to function. Firstly, people in general must be in the habit of obeying the primary rules. Secondly, public officials must accept the rules of recognition, change and adjudication.
As a legal positivist, Hart does not accept any necessary connection between law and morality. In other words, the validity of a law is not dependent upon its moral acceptability. Even a morally repugnant law may be legally valid. However, that does not mean we must obey laws that are morally repugnant. Obedience remains a matter of personal decision or conscience.
Natural law
Natural lawyers reject this: they believe that the validity of man-made laws depends upon their compatibility with a higher, moral authority: where laws do not satisfy the requirements of this higher moral authority, then those laws lack validity. There are two main types of natural lawyers, those that believe in laws from a god and those that do not believe in god but that society has an unwritten moral code that laws should follow.
Thomas Aquinas was a 13th-century Catholic philosopher and theologian, who devoted his life to scholarship, in particular to the study of Aristotle. His major work, the Summa Theologica, contains his explanation of four different types of law. One of them, Divine law is concerned with the standards man must conform to in order to attain salvation. These are revealed to mankind by inspiration or revelation, as for example the Ten Commandments contained within the Bible. Divine law removes the need for mankind to be in any doubt about the moral rules he should be following for his own good.
Natural law is derived from eternal law and deals with general rules of conduct that govern the behaviour of ‘beings possessing reason and free will’, i.e. humans. It is implanted in us by God as part of our nature, and so we have a natural inclination to behave in a way that fulfils our purpose in life. These include the inclination to preserve life, procreate, and live within society. By reasoning upon natural law, certain general rules of conduct can be developed. The first of these is to ‘do good and avoid evil’. Some others are ‘not to commit suicide’, reflecting the inclination to preserve life; to ‘rear and care for offspring’, reflecting the inclination to procreate; and to ‘develop our rational and moral capacities’.
Human law is derived by reason from natural law. It is the result of a process of applying the principles contained within natural law to particular geographical, historical and social circumstances. Lon Fuller was Professor of Jurisprudence at Harvard Law School. He is known as a natural lawyer in that he rejected legal positivism: he refused to accept the belief that law has no higher authority than that of a sovereign authority.
Fuller views law as serving a purpose. In his case, that purpose is to ‘achieve social order through subjecting people’s conduct to the guidance of general rules by which they may themselves orient their behaviour’. For laws to be able to achieve this purpose, they must satisfy eight particular principles. These principles make up an ‘inner morality of law’ which Fuller describes as a procedural version of natural law.
According to these eight principles, laws should be:
1 in existence, not ad hoc
2 promulgated, i.e. published
3 prospective, rather than retrospective
4 clearly stated and comprehensible
5 consistent with each other
6 possible for people to obey
7 constant, i.e. relatively long-lasting and not constantly changing
8 applied and administered as stated.
Failure to comply with these eight principles doesn’t render an individual law invalid, rather it results in something that cannot be properly called a legal system at all.
Professor Hart, while not critical of the eight principles themselves, argued that Fuller was not justified in calling them a morality. He illustrates his objection by reference to the art of poisoning. Like law-making, poisoning is an activity with a purpose. The poisoner will develop principles to render his art effective. However, nobody would consider calling these principles the ‘inner morality of poisoning’. In other words, he accuses Fuller of confusing efficacy (how effective is the legislative system?) with morality (is it good or bad?).
Morality
The word morality derives originally from the Latin word mos (plural: mores). The standard meaning of this word is a custom, habit or usage that is determined by man’s will rather than by law. The Roman statesman and orator Cicero once wrote that law and custom (mos) must both be obeyed, illustrating their parity. Custom formed the bedrock of Roman society in Cicero’s day, with duties and obligations balanced by rights and privileges.
Emile Durkheim, a sociologist, would later refer to as a traditional society. In such a society people had much in common. However, by Durkheim’s day, society was becoming more fragmented. First, labour was becoming specialised, with workers developing expertise in increasingly narrow fields, thereby becoming alienated from each other. Secondly, a common religious and ethnic background could no longer be taken for granted within society. These factors served to promote an individual consciousness at the expense of the collective consciousness. The speed of change, Durkheim argued, led to confusion in moral outlooks, and to the breakdown of traditional norms of behaviour. Durkheim used the word ‘anomie’ to describe this result. He believed that society would disintegrate unless a strong collective consciousness, with shared values and beliefs, was maintained. One of the functions of education, therefore, is to strengthen the common morality and reduce individual consciousness. This can in part be achieved by a pledge of allegiance to the state, an idea recently promoted for all school leavers in Britain. All of these factors are more and more apparent in pluralist societies today
Part two - The relationship between law and morality
Shared characteristics of legal and moral rules
1. They are both concerned with setting standards, which are essential for governing the behaviour of individuals within society. For example, in order to avoid unnecessary death and injury, the law requires us to drive on the left. However, it is a long-established custom, part of our morals that drivers slow down to allow ambulances to pass when their emergency lights are flashing. Both rules are concerned with the behaviour of drivers and the saving of life.
2. Legal and moral rules employ similar language: they distinguish between right and wrong, and they speak of duties, obligations and responsibilities. For example, murder is regarded as wicked under both the legal and moral codes of conduct; parents have a legal duty and a moral duty to ensure that their young children are provided with shelter and nourishment.
3. Law and morality often coincide or overlap: for example, the Ten Commandments, given to Moses on Mount Sinai, continue to serve as a moral code for many today. Indeed, these commandments contain a number of prohibitions, which are to be found in the laws of even the most primitive societies. In our age, the order: ‘Thou shalt not kill’, is reflected in the common law on murder; the command: ‘Thou shalt not steal’, is currently contained within ss1–6 of the Theft Act 1968; and the principle of the virtue of honesty, which lies behind the command not to give false witness, can be seen in the development of the law in areas such as fraud (crime), misrepresentation (contract), and defamation (tort).
Where Legal rules and morals seem at odds
1. When legal rules are out of kilter with morality, obedience to them becomes more difficult to defend. It might be argued that strict liability offences are like this. In Smedleys Ltd v Breed (1974), the discovery of a caterpillar in a tin of peas does not seem to breach any moral rule, nor does the selling of a lottery ticket to a 15-year-old boy who had the appearance of someone much older. It is therefore not surprising that the principle of strict liability is controversial: legal rules are given greater validity by their moral content.
2. There are many moral rules which are not enshrined in law. There is no liability in English criminal law for omissions, unless the failure falls within one of the recognised exceptions where there is a duty to act, such as a duty to children (R v Gibbons and Proctor (1918)), or a duty through a contract of employment (R v Pittwood (1902)). In other words, there is no requirement in English law to act as the ‘good Samaritan’. Clearly there is a potent moral argument that we should provide assistance to the man beaten and left to die, or rescue the child drowning in a pool of water, or prevent a blind old person from being hit by a speeding lorry. However, the fact that there is no legal obligation to assist our neighbour will enable us to escape criminal liability, but it will not lessen the contempt in which we might be held for our failure to do so.
3. Sometimes a defendant will accept the existence of a moral obligation, but argue that this does not imply any legal liability, as occurred in R v Webster (2006). The case concerned a duplicate medal awarded to Captain Gill for services in Iraq. Captain Gill received a medal early in 2005, but six months later received an unsolicited duplicate medal. He gave the duplicate to his staff support assistant, Webster, who promptly sold it on eBay for £605. Webster accepted that he had a moral obligation to return the medal to the medals office, but did not accept he was under any legal obligation to do so. However, the court decided that the medals office retained a proprietary interest in this particular duplicate medal and was therefore entitled to call for its return.
The influence of law and morality upon each other
Changing moral values can lead to developments in the law.
Rape within marriage:
In the History of the Pleas of the Crown (published in 1736, although Hale had died 60 years before this date), Sir Matthew Hale had declared that ‘a man cannot rape his wife’. This was based upon the doctrine of implied consent, i.e. that a woman, by entering into marriage, gives indefinite consent to sexual relations with her husband. During the 20th century the courts succeeded in removing this immunity where there was a legal separation order (R v Clarke (1949)), where a decree nisi had been issued (R v O’Brien (1974)), and where a non-molestation order had been imposed (R v Steele (1977)). In these decisions the courts were eager to limit the moral outrage that an acquittal would arouse. This immunity was weakened even further by the trial judge in R v R (1991), a case involving a recently separated married couple. Owen J declared: ‘I find it hard to believe that it ever was common law that a husband was in effect entitled to beat his wife into submission to sexual intercourse.’ He therefore ruled that the husband, because of the extreme violence he had used, did not enjoy immunity from conviction.