Are morals are the fabric of a society? If so, can the government legitimately legislate in line with the prevalent morals of a country.

 

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The ongoing debate surrounding morals and their role in the foundations and the functioning our current legal systems is a debate that is at the core of many prevalent issues across the political spectrum. For instance, here in the North of Ireland questions such as should homosexuals be permitted to legally marry or should woman have the right to choose to abort a pregnancy are prevalent moral issues that are routinely presented for debate in both political and legal arenas. The place and function of morals within our legal systems has always been a key topical debate amongst political philosophisers. According to Raymond Wacks this is without doubt the fundamental question that stimulates debates in contemporary jurisprudence.[1] On one side of this debate is legal positivists who argue for a kind of conceptual partition between law and morals. However, opposing this view are others that include natural lawyers who reject to different degrees the idea of separating law and morals.[2] This essay will utilise this debate to question morals as the ‘fabric of society’ and question if governments obtain legitimacy to legislate from the prevalent morals within society. It will begin by examining the classic position of both sides of the naturalist v positivist debate individually, before moving on to analyse some of the key contemporary philosophical debates. Other sub issues will also be discussed as they arise and we begin we with natural law.

Natural Law

There is much debate on the definition of natural law and how best to describe it. Historically, from its classical origins of Plato and Aristotle natural law relates to the use of reason to analyse human nature to conclude binding rules of moral behaviour.  In this sense, the law of nature, determined by nature of man, is a universal concept.[3] Therefore, the use of reasoning by man provides limitations and restrictions on human behaviour which defines what is moral and what is not. For example, when reasoning is applied to the killing of another human being on grounds of race it is found to be immoral. This finding binds the rule which prohibits killing on the grounds of race.  In the thirteenth century, St Thomas Aquinas connected natural law to God, maintaining that reasoning is merely one element of divine providence. However, Alf Ross maintains that “like a harlot, natural law is at the disposal of everyone”[4]

With that said, one modern natural lawyer attempts to simplify the description by explaining that natural law ‘provides a name for the point of intersection between law and morals’[5]  This juncture is the point where what the law currently ‘is’ collides with what the law ‘ought’ to be. Natural lawyers attempt to resolve this tension by claiming that what the law naturally is, ought to be. Therefore, if we apply the earlier example of killing on grounds of race, any current law that permits the killing of another human being, ought to be changed to the natural moral position of prohibition as extracted from the use reasoning. It is clear from the natural law position that morals are an important element of society and that they legitimatise the promulgation of laws that fall in line from what the use reasoning determines what the law ought to be. The next paragraph will focus on theory that opposes the natural law position as we turn to legal positivism.

 

 

Legal Positivism

Classic legal positivism is based on general view that the only ‘genuine knowledge’ is scientific knowledge. This knowledge emerges from the positive confirmation of theory by applying tried and tested scientific methods to draw conclusions.[6] Therefore, legal positivism is very much focused on the what ‘is’ in terms of the law and not what it ‘ought’ to be. It is less interested the subjective nature of morality that differs from person to person and is fixated on what can be confirmed. For example, a law can be confirmed by simply checking the legislation online or in a statute book. Moreover, as an example of one positivist theory, the ‘command theory’ determines laws as general commands dispensed by a sovereign to members of society, and backed up by credible threats of punishment and other adverse consequences or sanctions in the event of non-compliance.[7]

This is the theory John Austin’s a disciple of Jeromy Bentham. Both Bentham and Austin regarded sovereignty as crucial concept of their theories. They regarded sovereignty as a ‘social fact’ of the habit of obedience. Austin defines sovereignty as “[i]f a determinate human superior, not in the habit of obedience to a like superior, receives habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society.”[8] Therefore, this classical definition of legal positivism based on the command theory illustrates the focus of legal positivism on what the law ‘is’ by highlighting its source in the sovereign power who controls what the law is it at that time. Moreover, classic positivism emphases laws as the commands of human beings with no necessary connection between law and morality.

 

Legislation and Morality

It is clear, from the natural law position of morals being derived from human reasoning that there is an impending clash with the more scientific positivist position. This very Natural v Positivist debate arose in the aftermath of World War Two surrounding the legitimacy of ‘immoral laws’ of Nazi Germany in the Hart-Fuller debate. The debate surrounded the decision of a West German court in the aftermath of the war and gives a contemporary insight into both natural and positivist positions.[9] A wife of a Nazi solider wanted to get rid of her husband. She decided that it was a good idea to report him to the Gestapo for making insulting remarks about Hitler’s war effort. He was convicted and sentenced to death, this sentence was then reduced to serving on the eastern front. Her defence was that she had simply reported him for committing an offence under Nazi Statute of 1934. Nevertheless, she was convicted as the court held that the statute which her husband had been punished under, offended the ‘sound conscience and sense of justice of all decent human beings’[10] The decision of the court was clearly a moral one and relied upon what the law ‘ought’ to be. The next paragraph will focus on the modern naturalist approach of Lon L Fuller regarding the above case.

Hart – Fuller Debate

Lon L Fuller is associated with his modern and secular natural law position that law has an ‘inner morality’ and his view that a legal system is the purposive ‘enterprise of subjecting human conduct to the governance of rules’[11]  Fuller does not suggest a higher natural source of law exists, he focuses on a procedural approach to natural law. He points to eight ‘desiderata’ or ‘eight kinds of excellence toward a system of excellence may strive’[12] The eight desiderata are Generality, Promulgation, Non-retroactivity, Clarity, Non-Contradiction, Possibility of Compliance and Constancy and the Congruence between declared rule and official action.[13] Together, he contends, they guarantee that all law will embody certain moral standards of respect, fairness, and predictability that constitute vital aspects of the rule of law.[14] Therefore, if a legal system is conflicting with one of these principles or fails significantly with several, it could be said that law did not exist in that given society and what existed was in fact nothing but state coercion.[15] Fullers position on the aforementioned case regarding the wife’s conviction is that the Nazi ‘law’ diverged so far from morality, it failed to qualify as law and supported the court’s decision in convicting the wife on grounds of morality.[16] However, it is important to note that the fulfilment of Fuller’s eight principles is no guarantee of a just and moral society. Law’s that are introduced and acted upon in times of constitutional upheaval often meet these eight principles, however, they can be clearly immoral. This was the case in 1972 when the mass internment of anyone remotely suspected of IRA membership were interned without trial for long periods of time under the Civil Authorities (Special Powers) Act (Northern Ireland) 1922. It easy to criticise Fuller for focusing heavily on procedure of creating law and neglecting to emphasis the actual content.

HLA Hart is regarded as one of the founding fathers of modern legal positivism alongside Hans Kelson an advocate of the ‘higher norm’ theory.  Hart produced an essay titled ‘Positivism and the Separation of Laws and Morals.’ Hart is less concerned with who promulgated the law and is more focused on the way it was promulgated.[17] Therefore, Hart’s position is a break from the ‘command theory’ of John Austin. Hart draws a distinction between primary and secondary legal rules. He states that primary rules govern, areas such as criminal law that is conferred directly on the citizens and secondary rules that governs the operation of the rule making system and procedures itself. Hart enumerates three secondary rules; they are: The Rule of Change, the rule were current primary rules might be created, modified, or removed. The Rule of Adjudication, the rule whereby the society may determine when a rule has been broken and prescribe a remedy. And finally, the Rule of Recognition were a criterion is set to determine which rule are part of a legal system and which rules are not.[18] The rule of recognition is a basic tenant of legal positivism and points to how valid rules are created.[19] For example, valid laws are generally created in the UK by being passed by a majority in both houses of parliament. The legislation is then easily recognised as valid law by both officials and the public at large.

Minimum Content of Natural Law

Another key area were Hart breaks from the classic positivist position is that he suggests that a ‘minimal content of natural law is needed for communities to survive. He bases this on the consequences of ‘human conditions’ such as human selfishness, the need for food, clothes, and shelter, which are limited and the fact that humans cannot be relied upon to cooperate with each other.[20] It is important to note, that Hart is not suggesting that law is derived from morals that he is simply stating that a minimal amount is needed to act as counter to what he describes as ‘human conditions’. So where does Hart’s theory fit into the aforementioned case surrounding the soldiers’ nasty wife? Controversially, Hart disagreed with the courts judgement and argued that the Nazi law in question was valid as it met the requirements of the rules of recognition.[21] With that said, both Hart and Fuller agreed that they favoured the use of retrospective legislation which would have led to the wife’s prosecution.  Therefore, overall it could be said, that morals play a role in the fabric of society with Hart and Fuller disagreeing on the degree of moral thread woven into it.

Hart-Devlin Debate

If we accept that morals to a range of differing degrees are interwoven into the fabric of society the question arises of can a government legislate in line with morals that are clearly live and prevalent? To address this question focus will be given to the Hart-Devlin debate that discussed a 1957 report into the legality of homosexual activity and prostitution.[22] In 1957 homosexual activity was viewed as contrary to the prevalent of morals of society. However, Sir John Wolfenden concluded in his report that “unless a deliberate attempt be made by society acting through the agency of the law to equate the sphere of crime with that of sin, there must remain a realm of private morality that is in brief and crude terms, not the law’s business.”[23] The report was heavily influenced by the writings of John Stuart Mill who maintained that “[t]he only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”[24] The heart of the debate is the legitimacy of homosexual activity and prostitution as acts that cause no harm to others and whether governments should move to legislate against it in line with current prevalent morals. Lord Devlin disagreed with Wolfenden’s conclusion arguing that society has every right to punish conduct that the ordinary member of society classed as grossly immoral. Moreover, he contended that the harm is irrelevant and the ‘fabric of society’ is maintained by a shared morality.[25] If such acts such as homosexual activity and prostitution are left unchecked, even in private, social cohesion is undermined even though no one else is harmed. Moreover, Devlin was insistent that societies disintegrate from within and often from external factors.[26] It must be noted that Devlin concedes that only acts that cause intolerance, indignation and disgust warranted punishment.[27] Therefore, his theory was limited to acts that reached the criteria of revulsion and anger.

On the other hand, Hart attacks the fundamental element of Delvin’s theory, social cohesion. Pointing to the fact that multicultural societies do not require a shared view of morality to survive.[28] Importantly, Hart makes a significant point, that morality is a highly subjective matter. If one was to look at modern day Britain the idea of what is morally correct would differ from community to community. Conversely, Hart does however, point to situations where the law should take on a paternalistic role in restricting individuals from harming themselves. He points situations such the removal of consent as a defence to murder or the legal enforcement of the wearing of a seatbelt. He also draws a crucial distinction between public displays and offence that is caused simply through the knowledge of it. For example, the punishment of polygamy could be justified as it is a public act would offend the catholic church. Whereas, immoral sexual acts carried out in private that offended on knowledge alone could not be punished.[29] The courts are of the view that punishment for such ‘immoral acts’ are best left to legislation.[30]

In conclusion, this essay examined morals as the ‘fabric of society’ through the debates of Hart, Devlin and Fuller and questioned the degree to which the ‘moral thread’ is woven into the fabric of modern society. It is clear from the Hart-Fuller debate that both theories agree that morals have a role to play but differ in specific role that morals play and their significance. Later, Fuller pointed to his eight point criteria that attempted to insure the validity and morality of legal rules. However, it was not without its holes as we discovered that it was possible for immoral laws to meet all eight of the specified criteria. However,  Hart on the other hand focused on Primary and Secondary rules with the latter focusing on how the primary rules are made, modified, and revoked. It is critical to point out the fact that Hart conceded to the need for a ‘minimum content’ of natural law and there is no doubt that this was influence by the flaw of classic positivism that played out during the Nazi era. The Hart-Devlin debate brought to bear the level of immorality needed for legislation to restrain such behaviour. Devlin conceded that only acts that caused intolerance, indignation and disgust warranted punishment whilst Hart focused on the public and private aspects of the debate. Overall, it would be reasonable on basis of the earlier debate, to conclude, that morals are to a lesser degree a fabric of society and play a minimal role in the legitimising of legislation.

Ciaran Boyle
Derry

[1] Raymond Wacks, Understanding Jurisprudence (3rd edn, Oxford 2012). 10
[2] Ibid
[3]  Leo Strauss, Natural Law (Macmillin 1988)
[4] Alf Ross, On Law and Justice (Stevens and Sons 1958) 261
[5] Passerin D’ Entreves, Natural Law (Hutchinson 1970) 116
[6] Ibid (n 1)
[7] John Austin, The Province of Jurisprudence Determined. (1995 Cambridge University Press)
[8] Ibid
[9] HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1959) 71 Harvard Law Review
[10] Ibid (n 9)
[11] Raymond Wacks, Understanding Jurisprudence (3rd edn, Oxford 2012) 33
[12] Lon Fuller, ‘The Morality of Law’ (1969) 39 Yale University Press
[13] Lon Fuller, ‘The Morality of Law’ (1969) 39 Yale University Press
[14] Ibid
[15] Ibid (n 1) 34
[16] Ibid
[17] Ibid
[18] HLA Hart, The Concept of Law (Oxford Clarendon Press 1994)
[19] Brian Bix, Jurisprudence: Theory and Context (Sweet and Maxwell 2015) 37
[20] Ibid (n 18)
[21] Ibid (n 9)
[22] Wolfenden, J (chair) The Report of the Committee on Homosexual Offences and Prostitution (CMND 247) HMSO, 1958
[23] Ibid
[24] John Stuart Mills, On Liberty (Harmondsworth: Penguin Books 1974) 72-3
[25] Patrick Devlin, The Enforcement of Morals (Oxford University Press 1965) 14
[26]Ibid (n 1) 36
[27] Ibid
[28] Ibid
[29] Ibid
[30] Shaw v Director of Public Prosecutions [1962] AC 220 at 267
[21] Ibid (n 9)
[22] Wolfenden, J (chair) The Report of the Committee on Homosexual Offences and Prostitution (CMND 247) HMSO, 1958
[23] Ibid
[24] John Stuart Mills, On Liberty (Harmondsworth: Penguin Books 1974) 72-3
[25] Patrick Devlin, The Enforcement of Morals (Oxford University Press 1965) 14
[26]Ibid (n 1) 36
[27] Ibid
[28] Ibid
[29] Ibid
[30] Shaw v Director of Public Prosecutions [1962] AC 220 at 267
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