Explaining the terms “Law” and “Morality” or "Justice". When discussing law and morality or law and justice, it is important to define the terms, from the below you will probably decide it is not possible to define what law IS, but it is possible to describe what it does and what rules apply. This is essentially a philosophical question, which probably has no answer, but some theorists have attempted to do so. Similarly, there is no agreement what morality IS, or justice IS and there are various “schools” of thought. thought. We shall be looking at the writings and thoughts of philosophers and jurists (legal scholars) each named person should be considered as an authority in his field whose opinions are worthy of respect. What is “Law”? It is possible to describe law as the body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behaviour of its members, so Law is a formal mechanism of social control. Legal systems are particular ways of establishing and maintaining social order. Definition of law - Legal Positivism John Austin (English jurist born 1790) "Province of Jurisprudence Determined" "A rule laid down for the guidance of an intelligent being by an intelligent being having power over him."
"A body of rules fixed and enforced by a sovereign political authority." Professor Hart (Oxford Professor of jurisprudence, born 1907 ) "The Concept of Law" (1961) Hart defined law as a system of rules, a union of primary and secondary rules, Definition of law - Marxist theory Marxist theories of law generally define law as a tool of oppression used by capitalists to control the proletariat. Definition of law - Natural Law. Plato (Greek philosopher born 427 BC) Aristotle (Greek philosopher born 304 BC) “An embodiment of Reason”, whether in the individual or the community’. St Thomas Aquinas (Italian philosopher born 1224) "Summa Theologiae (Summary of Theology)", Question 90, Art. 4 "Nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated" Definition of law - Legal Realism Oliver Wendell Holmes (American judge and jurist born 1841)
"The Path of the Law" in Collected Papers, 1920 "The prophecies of what the courts will do ... are what I mean by the law,"
The Jurist and Associate Justice of the United States Supreme Court, Oliver Wendell Holmes Jr., was born in 1841. Oliver W. Holmes Jr. died in 1935. For information, Oliver Wendell Holmes Sr. (a Physician and Author) was born in 1809 and died in 1894. Karl Llewellyn (American legal scholar born 1893) "The Bramble Bush" 1951 "What officials do about disputes," Lord Browne-Wilkinson (Senior Law Lord born 1930) "‘The sum of the influences that determine decisions in courts of justice." Other definitions Definition of Law - Max Weber (German Sociologist born 1954) "Law…exist if it is externally guaranteed by the probability of coercion (physical or psychological) to bring about conformity or avenge violation, and is applied by a staff of people holding themselves specially ready for that purpose." Definition of law - Thomas Hobbes (English philosopher born 1588) Hobbes said of the role and function of law in his polemic work ‘Leviathan’ (1651) "Law is the formal glue that holds fundamentally disorganised societies together." Definition of law - Glanville Williams “Learning the law” "Law is the cement of society and also an essential medium of change. Knowledge of law increases one’s understanding of public affairs. Its study promotes accuracy of expression, facility in argument and skill in interpreting the written word, as well as some understanding of social values". Legal Theory Natural Law Theory Natural law holds that law and morality are connected. Law is not simply what is enacted in statutes, and if legislation is not moral, then it is not law, and has no authority. In order for man-made law to be valid it must accord with the higher law. St Thomas Aquinas, called such law (without moral content) a “perversion of law”. Natural law theory asserts that there is an essential connection between law and morality. This view is frequently summarised by the maxim: “an unjust law is not a true law”. It follows that if it is not true law we need not obey it. Man made law still exists, even if Natural law holds it to be inferior In 1534 Thomas More believed that he was bound be a higher law (God's law) to a greater extent than the man-made law and was executed. More refused to accept that Henry VIII and Parliament could usurp papal authority by declaring the king the head of the Church. Natural law theory holds that, man-made law is a lower form of law Before the Christian philosophers, the classical Greek philosophers considered man-made law to be inferior to the laws of nature.
Although the laws of nature decreed that people should live in communities, the rules people created to regulate those communities were man-made and subservient to the laws of nature. Cicero said, "True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. ... We cannot be freed from its obligations by Senate or People, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times..." "De Republica" Quoted in "A Short History of Western Legal Theory" by Kelly (1992)) Positivism Positivism emphasizes the separation of law and morality. According to legal positivists, law is man-made, or “posited,” by the legislature. Where natural law theorists may say that if a law is not moral there is no obligation to obey it, by appealing to moral or religious principles, but positivists hold that until a duly enacted law is changed, it remains law, and should be obeyed. Legal positivism regards law as a system of clearly defined rules, the law is defined by the social rules or practices that identify certain norms as laws. Jeremy Bentham (English philosopher and jurist born 1748) proposed the Utilitarian principle which means that the law should create “the greatest happiness of the greatest number”. Bentham had little time for natural law The version of legal positivism of his pupil, Austin was based on the notion that the law is the command of the sovereign backed by the threat of punishment. Hans Kelsen (Austrian lawyer and philosopher born 1881) Kelsen's version of Legal Positivism was that there is no necessary connection between law and morals, and that law did not require moral validation to be legitimate. Legal Realism Legal realism is the view that that we should understand the law as it is practised in the courts, law offices, and police stations, rather than as it is set forth in statutes or learned treatises. For legal realists such as Oliver Wendell Holmes who wrote "The Common Law" in 1923, if the law were merely a system of rules, we would not need lawyers conducting adversarial proceedings, because judges could just apply the rules. In fact, judges have discretion with which they can decide a case in a number of ways, and factors such as the judge’s temperament, or social class, or political ideology, may determine the outcome. What does law do? What is its purpose? Liberalism John Stuart Mill (English philosopher born 1806 - [Godson of Bentham]), On Liberty (1859) held that liberalism, seeks to promote as much individual liberty as is compatible with everyone else having the same liberty, the state should not use the criminal law to prevent immoral conduct that does not cause harm or offence to others, JS Mill’s "Harm to Others" Principle Mill stated "The only time law can be used to prevent someone doing an act, is to prevent harm to others". The problem is he didn't say what harm is, and he didn't say who others were. One could ask, “Should you use law to prevent 'harm' in all cases?” Take for example adultery and suicide, both would cause 'harm' to others. However, the law will say nothing about such behaviour.
Utilitarianism Bentham argued that a utilitarian view of the law is that the law should produce the best consequences. The utilitarian approach is most often seen the relation between law and economics where the law supports the creation of wealth. Positivists such as Bentham and Austin see law as a system of commands backed by sanctions. Others such as Professor Hart stress rules and their pedigree as the essential elements of a legal system. Ronald Dworkin (American philosopher born 1931) disagrees, and said law involves principles as well as rules. Sovereign commands How does the positivist distinguish commands that count as law from commands that do not, without appealing to morality? Austin argues that law is distinguished from other commands by being the command of the sovereign; he wrote in “Lectures on Jurisprudence” (1869)) that the gunman’s command lacks this pedigree. Who then is sovereign? Not someone who has a right to rule, or who rules legitimately, for this would interject morality into the law. Rather, it is someone who is sovereign, who is in fact obeyed. Professor Hart answers this by saying that it makes the legal system nothing more than “a gunman writ large”. Hart adapted Kelsen's illustration of a gunman demanding money from a bank:The gunman commands the clerk to hand over the money. The gunman backs up this command with the threat that if he does not do so he will be shot. The clerk feels obliged to hand over the money. It follows therefore that law cannot simply be made up of commands For Hart we distinguish laws from other commands by viewing law as a union of primary and secondary rules. Laws consist largely of primary rules. All societies develop rules Hart concluded that there are some essential primary rules. In "The Concept of Law” Hart says the reason for primary rules is our knowledge of certain self-evident truths. Primary Rules Such truths, says Hart, are the minimum necessary that any society will recognise. 1. We know we are all vulnerable to attack from others . Human beings are vulnerable to bodily attack and need protection. No man alone can dominate others for more than a short period - he must stop to sleep, and then he in his turn needs to be protected. 2. We all have approximately equal physical and intellectual powers. Men are not infinitely wise or strong-minded, and sanctions are needed to ensure that those who comply voluntarily with the rules are not sacrificed to those who do not. 3. We all have limited concern for others and limited will power. Men are neither devils nor angels; they act largely from self-interest but generally care for the interests of others close to them. 4. Finally, we know that we live in a world of limited resources. The basic needs of life - food, clothes, shelter etc - are scarce and require some effort to obtain: this requires rules to protect rights of ownership and to allow ownership to be transferred.
Hart appears not to include rules that limit sexual impulses or rules imposing duties on parents to care for their children, and on younger people to care for the elderly. Secondary rules Just because society is governed by rules, does not mean that it has a legal system. Some small-scale primitive societies have rules based only on informal custom. The customs will be well known by everyone, when disputes do occur they will be resolved by group discussion and conciliation. Changing the rules occurs as the pace of change demands. More developed societies will require more complex rules to deal with the economic, social and political complexities that inevitably follow. The simple societies have a cohesion bonded by the simple rules this is lost as societies become more complex. Hart describes these three types of rule as: Recognition. To avoid uncertainty, the complex societies develop rules of conduct, which are recognised, particularly by the officials. Change. These rules will lay down who can change the rules. Adjudication. Rules of adjudication, defining the procedures to resolve dispute will be developed. This may lead to a court system
He calls these Secondary rules to distinguish them from the primary rules. He says that this 'union of primary and secondary rules is at the centre of a legal system.' Some jurists believe the real test of whether a legal system exists is simply the institution of a court. Rules and principles Another theory, called purposive adjudication, defended by Dworkin ("Law’s Empire", 1986), holds that law is not, as Hart says, merely a set of rules, but of rules as well as underlying principles, and judges should appeal to these principles - to the spirit or purpose of the law not just narrowly to the letter of the law. This is different from appealing to a natural moral order, which is entirely subjective, principles are often objective. Dworkin uses as an example the legal rule that the last will and testament of the deceased should be respected is modified by the principle that no one should profit from his or her own wrong. Dworkin proposes a scenario of a son who murders his father, he will not benefit from his father's will because of the legal principle that he should not profit from his own wrong, despite the legal rule that he should inherit in line with the terms of his father's will ("Taking Rights Seriously", 1977). Law is a necessary evil to resolve disputes It is certainly true that law plays a less important role in some societies than it does in England: in China and Japan, for example, law is seen as a last resort and disputes are resolved partly by reference to tradition and partly by a process of conciliation. Even here, however, most scholars see law as a necessary evil: St Augustine (Algerian Christian philosopher, born 345) said it was a natural necessity to curb man's sinful nature. Secular scholars also tend to agree on the need for law to respond to human nature. The American realists Karl Llewellyn identified five "law jobs" Law in any community serves to
Prevent disruptive conflicts within the community. Law helps maintain a peaceful, orderly society, and contribute to this stability by providing a means of resolving disputes. Resolve disputes between members of the community. Property law facilitates business activities, while laws limiting the powers of government help ensure some individual freedom. Accommodate changes in the circumstances of the community and its members. Law can also be a means of accomplishing social change, as for example in the prohibition of racial discrimination on the one hand and the establishment of national health and social security systems on the other. Recognise the authority structure of the community, and Establish procedural rules for performing other tasks
Oliver Wendell Holmes wrote in The Common Law (1881) that the life of the law is not logic but experience, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”; Roscoe Pound (American jurist born 1870) named the informal practices of legal institutions “the law-in-action,” contrasting it to “the law-in-the-books,” by which he meant formally enacted legal doctrine. A functionalist approach Would see the law as characterising the values and principles of society and maintaining these values by securing compliance. The law is symbolic, and expresses wrong by providing a remedy for those who feel they are victims of wrongdoing. By providing a deterrent, compliance can be assured, at least among ‘...some of the population, some of the time, in some circumstances...’ (Walker ‘The Some Theory’) Hart said in “The Concept of Law” ‘Law is the means by which we articulate displeasure at anti-social conduct.’ The function and role of law are defined at a particular point in history For example Albert Venn Dicey (English academic born 1835) writing in 1885, claimed the law at that time operated a formal equality at the expense of a substantive quality. The law was blind to the differences of wealth or power and assumed all possessed abstract rights and duties. FA von Hayek (Austrian economist born 1899) thought the law should apply to all and benefit none in particular. Hayek regretted the role of the law (in 1944) to be what he saw as supporting an interventionist state replacing a free-market economy. The law provided a legal framework for a particular form of economic activity. Is the role of law to protect the subjects from an encroaching modern state? Margaret Thatcher (British prime minister born 1925) advocated the ‘rolling back of the state’ where individuals were responsible for their actions and welfare. EP Thompson (English Marxist historian born 1924) was critical of what has in fact been the increasing role of the law in the lives of individual subjects in a way that has undermined civil liberties while following its own concept of public interest. Matrix Churchill Subsequent to Thompson’s writing there have been a number of high profile cases of civil liberties being ridden over to support the state’s interest, for example the Matrix Churchill trial. Does society actually need a legal system.
Many philosophers, from Plato to Karl Marx (German founder of communism born 1818), have argued that law is unnecessary: Plato Plato argued that man is naturally good and simply needs education to guide his behaviour, while Marx saw law as a tool of class oppression that we could be do away with, once a truly socialist society had taken over. History has shown that his theory has many practical difficulties and few states have retained a truly communist system. Marxism Marx saw the law as an instrument of control by capital of the working classes. Sometimes law appears to work in their favour but in reality only serving capital. Property laws in the UK serve well those that are landed and have goods and chattels. This is not to suggest a conspiracy by capital, but simply how the system operates so that capitalism survives, and ergo the nation is more prosperous; it is axiomatic that law favours capital. Even legislation aimed at protecting the worker does not work against capital. Factory safety regulations found necessary following the industrial revolution may have been more about handicapping competitors than the welfare of workers. The provision of schools and health care may have had more to do with providing an educated work force and a fit population from which to recruit soldiers than the general good of the population and of the individual. Respect for Law On the one hand, If a custom or norm is assured of judicial backing, it is, for practical purposes, law. On the other hand, a statute that is neither obeyed nor enforced is empty law. The role of law in China and Japan and modern Russia, for example, is different from role of law in western nations. In those countries there is a low respect for the law, except in business and industry. Tradition features highly. Resort to law is a last resort; conciliation is preferred for social control. What is morality? "The quality of being moral conforming to standards and principles. A religious code of conduct". A moral right; "A claim people would think is justified but not necessarily supported by law". F.S. Harraps Law Dictionary. Moral views can change over time In 1934 it was implied in a film about Russia that Rasputin had raped the Princess Youssoupoff. In 1934 it was necessary to protect her reputation by going to court (Youssoupoff v MGM Pictures (1934) CA). Would she need to do so today? In the USA opium used to be used by the middle classes and thought not to be morally wrong, but when it was criminalised by the Harrison Act 1914 attitudes changed when the hardened users were perceived as low-life. It then was morally unacceptable.
Definitions Law requires a definition, but morality can be many things. Justice is an aspect of morality Justice is concerned with how classes of individuals are treated. Equality before the Law is considered vital in modern societies. Certain classes of person such as MP's and judges have
greater immunity regarding their freedom of speech. And police officers have greater powers than ordinary subjects. To prevent abuse by officials of these privileges there are extensive rules of behaviour. Law and morality compared
Law
Applied by Courts
A system of social norms
Applied by "Society"
Morality
Recognise d by Society
Forces you to do things
Backed up Backed up by by threat of social prison condemnation
It might force you to do a thing
Individual principle or preference
Issues of law and morality have always been at 'odds' with each other. Many people argue that not everything that is illegal, for example, parking on a yellow line, is immoral; not everything that is immoral, for example, breaking a promise, is illegal. Morality is 'personal' to the individual; law must be 'universal' to society. Problems occur when issues of “personal choice” arise Shaw v DPP (1962) HL and Knuller v DPP [1973] HL show how the judiciary are willing to move the “goal posts”. They will prohibit behaviour they think society will be wrong. The big question is “Who should say?” what should be prohibited, should it be Parliament or judges? Furthermore, what things should they prohibit? In Shaw Viscount Simonds said “In the sphere of criminal law I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for.” This bold statement has not been followed, and the “residual power” is doubted. Government pressure ensured that we've cracked the morality of drink driving, but what about the morality of speeding? Is law appropriate for producing social change? Law can be a force for social change. Health, education, discrimination are but three areas where the law has been used to engineer society. The National Health Service in 1947 created by law has been a major success in improving society, but some observers question whether this is an appropriate use of the law. This also applies to the criminal law for example; the Race Relations Act 1965 has been the subject of considerable criticism, by writers who question whether it is right to legislate in the field of personal relationships. The legislation has clearly not been a total success - racial discrimination still remains entrenched in some geographical and social areas - but now few people would claim that this is not a proper field for legal intervention as a force in educating and changing behaviour. Law and Morality Not all people are convinced that the law should used to enforce a particular moral code. Homosexuality was decriminalised in 1967, but s.28 of the Local Government Act 1988
prohibited its promotion in schools as an acceptable way of life. The Local Government Act 2003 section 122 removed this prohibition. The common law has been used to denounce homosexual behaviour, for example in R v Brown [1994] HL the criminal law punished sexual behaviour that caused no harm to anyone except some consenting adult participants.
Interaction between Salmond’s Interlocking Circles
Law Morality Primary Law
In any legal system there will be some overlap between legal and moral rules. This is called Primary Law where such crimes as murder and theft are said to be placed. It is this primary law that tempts us to argue that law and morality are one and the same thing. Legal and moral wrongs Telling lies or acting dishonestly is generally considered to be wrong morally. Dishonesty in certain circumstances may be regarded as legally wrong, but only under strict definition. E.g. Sec 1 Theft Act, 1968. "Absolutes of behaviour"
There are few of these. Society’s values and ideology tell us that killing, raping and stealing are wrong. But there may be circumstances where it is justified. E.g. aborting a child. Morals imply a higher standard of behaviour. Law needs to be justified. Normative rules Morality is composed of "Normative rules" which set out what a person should do, or what s/he should refrain from doing. The emphasis is on "should", because the individual is not compelled to abide by normative rules, he or she simply ought to. Positive rules Law is made up of "Positive rules" which impose a legal obligation to do or refrain from doing something. If a positive rule is breached a sanction may be imposed. Examples of positive rules Do not kill - murder is a a common law offence Do not park on double yellow lines - contrary to local byte-laws Do not steal - theft is contrary to section 1 Theft Act 1968 Examples of normative rules Honour thy father and thy mother Do not bear false witness (Be truthful) Rescue a drowning child Law is often written in the negative The law generally requires us to refrain from doing things, leaving us free to do whatever it does not prohibit. So, it prohibits murder and theft, but leaves us free to commit adultery, lie, and read horoscopes. • • •
• • •
Sometimes it requires us to do certain things, for example to register a child's birth, or return our tax form. But it does not require us to put ourselves out and rescue drowning children, unless we have a duty to so act because of a special relationship. Some of the above examples come from Biblical teachings, particularly the Ten Commandments and theft and murder are part of the English Legal System, but many of the remaining 8 are not. Consequences, a utilitarian argument A utilitarian approach is to judge actions by their consequences. Others (called deontologists) argue that actions are intrinsically either right or wrong. Thus utilitarians argue that the "ends justify the means" even if the means are sometimes immoral. It might therefore be acceptable to allow a terrorist bomb attack to go ahead, killing a number of people, if by doing so the safety of an informer is ensured. The informer will then be able to give further information about future attacks which could save many more lives. Hart-Devlin Debate The issue of legalising of homosexuality and prostitution was investigated by the Wolfenden Committee headed by Sir John Wolfenden. The Report claimed that it is not the duty of the law to concern itself with immorality. Professor Hart, and Patrick (later Lord) Devlin (Law Lord) contributed to the debate.
It was argued that homosexuality should be decriminalisation on the basis of: 1) Freedom of choice 2) Privacy of morality Devlin’s position Law without morality, said Devlin “… destroys freedom of conscience and is the paved road to tyranny”. Devlin appealed to the idea of society's "moral fabric." He argued that the criminal law must respect and reinforce the moral norms of society in order to keep social order from unravelling. "Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government... the suppression of vice is as much the law's business as the suppression of subversive activities." Devlin, "The Enforcement of Morals" (1959) Devlin’s view was that any category of behaviour was capable of posing a threat to social cohesion. Therefore, morals laws are justified to protect society against the disintegrating effects of actions that undermine the morality of a society. This social cohesion argument, i.e. the notion of a shared morality was he said necessary for the survival of society. However, what is not clear is what “society” is and whether society's views are always correct. Devlin argued that immorality is what every right-minded person considered immoral. Devlin argued that there could be no theoretical limit to the reach of law; no acts are “none of the laws business”. (Margaret Thatcher once declared, "There's no such thing as society, there are individual men and women and there are families.") Devlin suggested that the common morality could be discerned by asking "What is acceptable to the ordinary man, the man in the jury box, who might also be called the reasonable man or the right minded man" Devlin chose the man in the jury box because; a) The verdict of a jury (twelve men and women) must be unanimous (at the time he was writing) b) The jury will only reach its verdict after the issue has been fully examined and deliberated. c) The jury box is the place where the ordinary person's conception of morality is enforced. Devlin "The Enforcement of Morals" (1959)
Devlin's guidelines Privacy should be respected. Law should only intervene when society won't tolerate certain behaviour. Law should be a minimum standard not a maximum standard. Hart’s position Hart warned against the dangers of “populism”. Why should the conventional morality of a few members of the population be justification for preventing people doing what they want? This is based on the theory that most people's views are coloured by superstition and prejudice.
Hart reiterated Mill's "harm principle", Hart pointed out that societies survive changes in basic moral views. It is absurd to suppose that when such a change occurs, to say one society has disintegrated and been succeeded by another. Both Hart and Devlin raise important issues. Devlin's view is pragmatic and focused on the majority rule. Harts is more humanistic and individual. Dworkin Dworkin suggests that we should abandon the Liberties. If a behaviour is a Basic Liberty (like someone has a different way of 'doing' sex e.g. liberties could be restricted if they cause harm. between a basic and a general liberty?
Hart-Devlin debate and concentrate of sex), this should never be taken away, even if R v Brown (The Spanner Case) General But, it is not clear how you tell the difference
