Law and Morality: A Connection - Essay Example

Law and Morality: A Connection? ­­­­­­­­­­­­­­­­­­­ Countless theorists, judges and philosophers have explored the questions as to whether a connection between law and morality exists, and whether it is necessary, or even possible. Each day we follow the rules set for us by society and the government, and each day we think nothing of this aspect – yet it is a phenomenon as to how we follow these rules, penalise those who do not follow the rules, and indeed possibly take them for granted. Why is this? This essay will explore whether the reason we accept and obey laws is based on, or must have a connection between law and morality. But before this issue can be explored, many other aspects come into play so that the main question can be fully understood. Firstly, what is a connection between law and morality? What is this moral basis which we speak of? Ultimately I will argue that the contention that our acceptance of laws is based on its necessary connection with morality presupposes the existence of universal moral standards. I argue that this is not possible; that there does not and cannot exist a universal, or even societal moral basis, for ultimately the topic is subjective. By dismantling the conception that there exist these morals as a basis for our acceptance of law, I will then proceed to provide examples, and thus explain why we accept laws. The topic is rich in content, and brings into play many contentions and side analyses, and it goes without saying that this will be a brief, albeit suitable expression of the argument. However, the main basis of my argument will be to show that when a connection between law and morality is found – and I do not consider this impossible – it allows arbitrary decisions to be made, based on the subjective outlook of he who is applying the law. What is a moral connection between law and morality? Let us observe it in play in the courtroom, through the dicta of judge Ormrod in the case of Corbett v Corbett.1 His statement that the criteria for determining the sex of a spouse to be “the biological sexual constitution” and the “essential role” of a woman in a marriage2 is commonly accepted to be fraught with personal moral considerations.3 In such cases, some argue that a connection between law and morality is proven, where the legislation involved in the case was vague and did not define the criteria under which the sex of a spouse should be determined. So, a moral connection between law and morality in the courtroom is an interpretation of the law in accordance with what the judge considers to be the moral basis of the legislation. We as citizens trust this task to the courts, and trust that they will define the law in accordance with the moral basis upon which it was built. We accept court decisions because we believe that they will ‘do what is best’ in the situation – a primitive form of connection between law and morality which will be explained further below. Yet, did judge Ormrod’s decision remain within the ‘spirit’ of the legislation, so that he did not retroactively legislate? What other path could he have taken? Major differences between theories of justice often cause us to overlook the fact that they are based on the process of comparing an act to a certain standard in order to determine whether it is legal.4 The difference between the approaches is exactly which standards are balanced, and this is a moral practice. The two main standards are based on the posited law as it is (the positivist approach) and law in conjunction with certain values in society (the naturalist approach). Though fundamentally different, the two approaches do have some similarities. I will argue that the naturalist, whilst a dangerous conception, does somewhat achieve the creation of a connection between law and morality, but that this is not a desirable outcome, and certainly cannot produce predictable results. It will thus be shown that, although we may consider that a connection between law and morality is necessary for it to be plausible in society, that this is more detrimental that advantageous, and that there are other ways. Essentially, while a connection between law and morality is possible, it is confined to the moral outlook of a single person, or small group – beyond this it is not possible and thus should be applied extremely carefully and viewed with caution as to its validity. There can be a connection between law and morality but it is not exactly necessary. I focus on the courtroom in connection between law and morality in order to show the above arguments – moreover, it is in the courtroom that justice, rights and laws are applied directly. Firstly, which theory attempts to break the connection between law and morality? “The fundamental value in judicial ethics is impartiality.”5 This positivist reasoning holds the view that judges must decide cases purely on their merits, with an open approach and thus not be influenced by bias or prejudice. The standards here are only to be found in the material posited law. But is this to deny a connection between law and morality? Upon what basis was the particular law created? Why do we accept this law as law in the first place? Why do we assign the task of its application to real life to the judge? Are all of these aspects not potential moral bases? Yes, they are – but they are not potential bases for making law, justice and rights worthy of our support. Simply because we obey laws does not mean that we support them – I am speaking of a positive recognition of laws as correct, as opposed to merely recognising their presence and obeying them simply because we must. Some state that ultimately, the judge has slight, or no discretion when ruling in cases; he is to simply refer to case law and legislation and may not refer to his own opinions of what he conceives justice to be. If he is able to do this without referring to moral opinion, does it not support the argument that the connection between law and morality is not necessary? We accept his decision, and we follow it – even though it may obviously apply the law without reference to any moralistic values. Indeed, it is argued in this area that the central aim of jurisprudence is to draw a line between ideology and law, the latter being the only ground for decision making.6 This distinction between legal and non-legal considerations is exactly what the positivist approach stipulates. What exactly is a non-legal consideration? In comparison to legal considerations based on legislation and case law, non-legal considerations are those based on political, moral and ideological factors. Let us suppose that there is a connection between law and morality – the very reason we obey laws must be based on some moralistic value that we share which causes us to heed the law. But is it necessary? To make it necessary would be to suggest that we all require it, and thus that it must be morality on a universal level. For morality to be universal, it must be based on objective standards, so that it applies beyond the subjective notions of the individual. I argue that this is not possible. Although I recognise that some basic moral values can exist, their application on a practical level can only be subjective. Raphael7 stresses the non-existence of objective moral principles because values can only be expressed in the form of different beliefs and attitudes towards values. Such expressions are subjective; the way we react to an act is not the result of the act itself, but the result of our personal perception of the act. Moral perception is emotional; hence judges cannot be free to make changes to the law because their opinions will not be objective. If the connection between law and morality were necessary, and thus universal, we would trust the judges to change the law as they see fit, because we would all agree with their outlooks, because it would be universal. The very existence of the rule that judges may not change the law and must only interpret it expresses the doubt surrounding this contention. Just as Hume8 stipulates, the idea that lying is wrong is a fact in the mind and not in the act itself; because each mind can vary, there can be no objective moral opinion. This is not to say that it is not unnecessary, but it is also not necessary in every case. These arguments seem plausible enough for straightforward cases. For most legal issues, the judge need not deviate from legislation and past decisions because they provide the ample criteria for a decision. This suggests that the moral basis upon which the law was created is ‘universal’ at least in that it represents the outlook of the society which obeys it. But what of the ‘hard cases’? What if the application of a legal rule is indeterminate? Is recourse to morality possible, or desireable? Here, positivists Ronald Dworkin and HLA Hart differ in reasoning. Dworkin maintains that there is always applicable law, whereas Hart holds that such circumstances allow judges to legislate on the basis of non-legal considerations. The latter strengthens the link between law and morality. Dworkin requires some authoritative source such as legal rules and principles as the basis for and control over a decision9 where Hart recognises the ‘open textured’ nature of terms which require that the judge be permitted to exercise discretion.10 But to what extent? May he simply balance two definitions of a word depending on the case, or may he ‘add-in’ actual definitions, as Judge Ormrod did? Let us take the word ‘woman’ within the definition of a marriage; without further legislative aid, how are we to define this? Most positivists would claim that whether the term ‘woman’ will include psychological as well as physical and biological factors will depend on the indiviual’s perception. The conservative will follow Ormrod’s definition, whereas the more open-minded would include all three factors. With vague legislation, we risk the judge deciding a case as he wishes; subjectively based on his own moral standards. Thus a connection between law and morality is established, but not necessarily desirable, and perhaps even goes to negate the ‘necessariness’ of the connection. Hart’s theory is more suitable to the less vague terms and more subtle alterations, where the change is the result of “resemblances which can reasonably be defended as both legally relevant and sufficiently close.”11 The judge thus chooses between pre-existing definitions, but does not actually devise his own definitions. This limits the judges’ use of discretion, whilst also allowing some leeway in particular cases. Here see a form of practice by which the judge locates the moral basis of the law and works within its boundaries. Thus, there must be a connection between law and morality, mustn’t there? The problem with a purely positivist legal system is that, for a law to be valid, it must only adhere to procedural requirements. The power of the legislator is unfettered and the judge enjoys no participation in its validity no matter how unjust it may be considered. The German Constitutional Court12 addressed this issue and responded that material justice considerations may override legal security in extreme situations. Based on the Radbruch Formula,13 it holds that if the contradiction between positive law and justice is unbearable, justice is to overrule and make that law void. But where should this justice come from? If the basis upon which one decides the contradiction to be unbearable is a recourse to morality, the positivist exclusion of morals as a validity factor of a rule makes this unobtainable. It seems to permit the use of moral considerations in a theory that purports to eradicate the link between morals and law. A solution to this would be to posit a law that stipulates exactly when and under which circumstances a posited law may be outweighed by justiciable values; to prescribe when a moralistic weigh-up may be enforced. Yet, how could such situations be defined with certainty? To alter law without such legislative basis removes all certainty from the legal system. Let us turn to a disturbing case to explain a point on the positivists’ need for certainty in the law. Two ten-year-olds beat a two-year-old to death.14 They were sentenced to ten years imprisonment, but following public petitions and outrage, the Home Secretary increased their terms to fifteen years. This displays a direct conflict between law, morality and public support of the former. It appears that our support of the law is considered to dwindle when it conflicts with issues of morality. Does this mean that there is indeed a connection, and that instances in which the law does not follow what we consider to be moral values, our support fades? Shortly afterwards the Court of Appeal ruled that this extension was unlawful, and the boys were released after eight years. It is suggestible that the Home Secretary’s decision was based on moral considerations, but of another sort to that of the public’s. At the time of the murder, the legislated maximum sentence was ten years, so why the sudden increase? The law already accounts for particularly brutal killings, as it does for mitigating factors. The positivist would argue that it is not for moral repulsion to change sentence lengths at will; the effectiveness of the law is based on certainty and to compromise it would be to open the law to last minute drafting. In the extreme case, the issue should be referred to the legislature to determine. But changes implemented by the legislature should, in the interests of certainty and fairness, allow the individual perpetrator to escape retroactive punishment. If we are to import morals into decisions, let us not forget the immorality of punishing a defendant for an act that was not illegal at the time he committed it. Critics of this positivist approach are, of course, the natural law theorists. The belief that there can be an objective knowledge of right and wrong is paramount to this line of thought. The natural lawyer believes that courts can and do refer to natural law principles if authority does not provide for the circumstances of a particular case; the belief that human nature is naturally good stipulates that judges can be trusted to do this. The judge’s reflective intellect possesses a direct knowledge of the qualities from which conclusions might be drawn about what justice requires. And because one basic standard of morality exists for all, a judge’s moral consideration represents that of the people. So, whether it be applied by the judge or the legislature, there is a connection between law and morality. Beyond this, the connection is sometimes needed to be strengthened or ‘put right’ when it is not in line with morality to ensure that our support of it remains. Aquinas15 holds that human laws derive their legal validity from natural law. Rousseau16 believes that natural rights exist which cannot be entrenched upon by positive law. Aristotle17 states that natural justice is not affected by people’s opinions or interpretations of it. Justinian18 exclaims that the natural law is never changing whereas positive law constantly develops, therefore a judge, when he refers to moral considerations is referring to the ultimate precedent provided for by natural law. It is this natural law which gives us the basis by which we will or will not support the law, or system of justice and rights within a society. The problem here is that naturalists do not account for the specific reasoning of hard cases. Indeed, it is plausible that everybody consider murder and rape to be wrong; posited law is unlikely to conflict with natural law. But what of the killing of one weaker person in order to save the other stronger person, knowing that to leave them will eventually lead to both of their inevitable deaths?19 Which natural law principle can guide such a decision? Such harder cases, in my opinion cannot be ‘universally’ agreed upon, because there are a great number of conflicting interests. To allow the judge’s discretion to refer to moral considerations in such a case could just as easily cause his decision to fall either way. So, does the connection – if it exists – between law and morality help us at all? Of course, the basic moral that ‘we must obey the law’ is evident, yet these more specific circumstances go to show that the situation is not as simple as some would think. For the general cases, it is plausible to me that a general universal moral underlying the law can exist20 – but it is exactly in these cases that the judge need not depart from the existing law because it has already been acknowledged. We have no need to reduce our support of the law in such cases, for they are straightforward and require no difficult compromises. In the more specific or hard cases, opinions and morals are more likely to differ, yet is here that the naturalists trust judges to make the ‘naturally’ right decision. Yet, such cases are called hard cases because they have no objective basis of legal or moral reasoning – otherwise the legislature would have recognised and legislated for them. In such a case, I would perhaps follow the utilitarian and make the decision that gives the greatest good to the greatest amount of people. But even this decision in itself could be a result of my natural inclination to achieve good. So, the fact that I made this decision is indeed the basis of a natural inclination towards good – and this is indeed what naturalists trust a judge to do. I think that critics of naturalism often err in forming too specific a view of natural law principles. The mere inclination to do good may be enough to make the right moral decision – it does not require a belief in a specific element, for example same sex marriage. Thus a moral act or opinion could be morally universal in that it is a desire to do good – in the most basic and general sense. Gratian21 exclaims that natural law need only override positive law when the two conflict. But if positive law is a result of natural law, then how can the two conflict? The naturalist would reply that natural law is a separate and superior intellect to posited law, therefore judges may include such moral considerations in their decisions. But how do the two connect in the way that allows natural law to override conflicting positive law? We as humans, with access to intellectual reasoning, posit the law; are we not naturally inclined to posit laws that are in accordance with natural law? How can conflicts possibly occur between the two? And if they do conflict, how can we access natural law to discover this? If we made this conflicting law in the first place, it seems we were never ‘in touch’ with the natural principle it conflicts, and if we are not in touch with that natural principle how do we know that a conflict exists? If natural law is universal, then we all apparently have the same qualities and beliefs within us, so are not able to differentiate because we all believe the same. For example; let us all accept that it is a natural law principle to preserve life. Therefore, we all employ certain rules in our society to ensure the preservation of life. In some societies this means killing the elderly to save sparse resources for the young, in others this means ensuring the quality of life for the elderly. Indeed, the fundamental value; the preservation of life is universal. Yet, the way in which this value is expressed from society to society differs.22 Let us label the preservation of life principle as the Basic Principle and the ways in which it is expressed the Specific Principle. Let us accept that the Basic Principle never changes. But the Specific principle is a clear expression of differing opinions; where the morals of one society would repel killing the elderly, the moral beliefs of another would repel the preservation of the elderly. Now, for a judge to employ moral considerations in a case; seeing as the Basic Principles are universal, he will have no need to refer to these as they will already have been captured in the legislation. This leaves him with only the Specific Principles to refer to. And these Specific Principles are evidently not expressed universally, so we cannot trust the judge to refer to universal principles – his own morals will inevitably affect his decision. This only ensures the consistency of legal principles within certain societies; is this acceptable? According to John Finnis, the answer is affirmative, although he acknowledges the fact that what is good is decided in a different logic to when we observe facts. So, if there is no connection between law and morality, what is the alternative? What do we do when faced with an unjust law? What makes an unjust law? All fo these questions have been explored, along with many others. In conclusion to this rich and wonderful issue, I have formed varied observations. It seems to me that, in general, theories of jurisprudence are rather ideological and unforgiving to oppositions. Naturalism, though it paints a romantic image of the human good, seems to base its theory on wise humans – it does not account for the need to educate those who are less in touch with their ‘rational’ characteristics. On the other hand, positivism is rather extreme and places too much faith in the system. I cannot see a legal system based solely on one or the other theory functioning. Reality and ideology are very different, and we must adopt that which works – in my opinion, this is a combination of approaches. There will never be a perfect basis for a legal system, and the closest that we may come to one is with an approach that is open to combined theories. Both the perfect romanticism of ideology and the harsh practically of reality must be present, and inspire one another. Bibliography Dworkin, Ronald. The Model of Rules I in Taking Rights Seriously, Cambridge, Mass.: Harvard Uni Press: 1977. Finnis, John: Natural Law and Natural Rights [1980]. Hart, HLA. The Concept of Law, Oxford: Oxford Clarendon Press, 2nd edition 1994. Honore, Tony. The Necessary Connecion Between Law and Morality. Oxford Journal of Legal Studies, Vol.22, No.2. 2002. Kennedy, Duncan. A Critique of Adjudication; 1997 Lyons, David. The Internal Morality of Law. Aristotelian Society Vol.71; 1970-1971. McLeod, Ian. Legal Theory, 2nd edition. Palgrave Macmillan; 2003. Szekessy, Lilja. Justice in Constitutional Courts Wendel, Bradley. Jurisprudence and Judicial Ethics, IVR World Congress of Philosophy of Law, Poland. 2007 Read More