Law & Morals

LAW & MORALS Are gay marriages immoral? Why is racism wrong? Should the law permit abortion? Moral questions routinely tug at the sleeve of our legal and political practices. Their persistence is perhaps one of the hallmarks of a democratic, or at least an open, society. The place and function of morals in the law has always been a focal concern of legal and political philosophers, and it is no exaggeration to say that it has become one of the most significant questions that animates the debates of today’s jurisprudence. Wacks, R. 2012. Understanding Jurisprudence: An Introduction to Legal Theory. 3rd ed. Oxford: Oxford University Press. Even though the role of law as a regulator of human relations has been large and decisive in the history of organized societies, it is unlikely that in any such society the law has functioned as the sole agency of social control. Bodenheimer, E. 1981. Jurisprudence the Philosophy and Method of the Law. 4th ed. Cambridge: Harvard University Press. There are other key tools that is utilised to ensure good behaviour and the accomplishment of social goals by means of the law. Among them is morality. Often when law and morals are mentioned in conjunction, a host of debates is generated about their similarities, and differences or if they are one and the same. When these two words are mentioned side by side, Hart Hart, H. L. A. 1982. Law, Liberty and Morality. 7th ed. Oxford: Oxford University Press. suggests that four questions are brought up in the heat of debates about the two concepts. The first is to ask if the development of law has been influenced by morals, a question which answers itself as a resounding yes. The second question is to ask if some reference of morality must enter into an adequate definition of law or legal system. Or is it just a contingent fact that law and morals often overlap and share a common vocabulary of rights, obligations and duties? The third question he continues concerns the possibility and the forms of the moral criticism of law. Is the law open to moral criticism? Or does the admission that a rule is a valid legal rule preclude moral criticism or condemnation of it by reference to moral standards or principles? And lastly the fourth: Is the fact that certain conduct is by common standard immoral, sufficient to justify making the conduct punishable by law? Is it morally permissible to enforce morality as such? We can see from the above rhetorics that moral questions invade the law at every turn. We would also see in the course of the arguments we pursue in this essay that analytical distinctions between law and morals as tools of control cannot always be drawn with sharp precision. Moral ideas shape certain laws and in other cases, it provides the base upon which a legal standard can be erected. Phil Harris Harris, P. 2006. An Introduction to Law. 7th ed. Cambridge: Cambridge University Press defines morals as code of beliefs, values, principles and standards of behaviour some versions of which are found in all social groups. This brings to fore an important issue on the concept of morality. Morality is largely relative. While the overwhelming majority of the people in the society may agree that murder and stealing are immoral and should be punished trough the formal instrument of the law, there are usually some other matters where there is no such consensus. Sanni, A. 2006. Law in Social Context. Introduction to Nigerian Legal Method. Eds. Sanni, A. Ile-Ife: Obafemi Awolowo University Press Limited. 1-57 For example, disrespect of elders, wearing of seductive dresses, sale and purchase of arms by civilians Black, T. 2022. America Have More Guns Than Anywhere Else in the World and They Keep Buying More. Bloomberg. Retrieved, April, 1. 2023, from https://www.bloomberg.com/news/articles/2022-05-25/how-many-guns-in-the-us-buying-spree-blosters-lead-as-most-armed-country#xj4y7vzkg e.t.c. Law on the other hand, has a wide scope. It is not limited to the affairs of a small group, such as a club, nor does it only attend to one restricted domain of life, such as baseball. Law governs high-stakes, open-ended domains, and is capable of regulating the affairs not only of small ‘face-to-face’ societies but large, dispersed, loosely structured organizations of many millions of people. It is also morally fallible. In Re A: Conjoined Twins: The case concerned a pair of conjoined baby twins, Jodie and Mary, whose bodies were fused at the lower abdomen. Mary was incapable of breathing independently and was only kept alive because of a shared artery, which enabled her sister Jodie to circulate blood to both of them. Medical professionals wished to perform a separation operation that would result in the near-immediate death of Mary but would save Jodie and allow her to lead a relatively normal life. The Court took the view that by separating the twins, the doctors would indeed be killing Mary, not just omitting to save her, and that, moreover, Mary’s death would clearly be intended by the doctors (even though not directly desired). The Court also judged that the operation amounted to the ‘lesser of two evils’. In the tragic circumstances, saving one twin was the least detrimental choice. Consequently, the Court ruled that the operation was permissible notwithstanding the fact that the doctors would be intentionally killing Mary, a separate individual person. It may require behaviour that is iniquitous, such as fighting in immoral wars. It may proscribe behaviour that is innocent, such as homosexual activity. It may fail to impose obligations that we all should bear, such as a duty of easy rescue. And it may do morally desirable things, such as taxation for public goods, in unjust ways. Morality always stands in appraisal of law, and not the other way around. Let’s a look at some of the arguments of jurists and legal scholars on this concept: Hart v Fuller Lon Fuller is principally associated with his secular natural law position that law has an ‘inner morality’, and that a legal system is the purposive ‘enterprise of subjecting human conduct to the governance of rules’. Fuller, L. 1969. The Morality of Law revised ed. New Haven, Conn and London: Yale University Press. In light of this assertion, Hart in his Holmes lecture Lecture titled ‘Positivism and the Separation of Law and Morals’ delivered at Harvard Law School in April 1957 and published in the Harvard Law Review in 1958 Hart, H. L. A. 1958. Positivism and the Separation of Law and Morals. Harvard Law Review 71. 4: 593 - 629. fired the first shot at Fuller. Professor Fuller responded in his article ‘Positivism and Fidelity to Law—A Reply to Professor Hart’, also published in 1958 in the Harvard Law Review. The focus of the debate was a decision of a post-war West German court. Under the Third Reich, the wife of a German in 1944, wishing to be rid of him, denounced him to the Gestapo for insulting remarks he had made about Hitler’s conduct of the war. He was tried and sentenced to death, though his sentence was converted to service as a soldier on the Russian front. In 1949 the wife was prosecuted for procuring her husband’s loss of liberty. Her defence was that he had committed an offence under a Nazi statute of 1934. The court nevertheless convicted her on the ground that the statute under which the husband had been punished offended the sound conscience and sense of justice of all decent human beings. Hart argued that the decision of the court, and similar cases pursuant to it, was wrong, as the Nazi law of 1934 Enabling Act of 12 July 1934 passed by the German Reichstag which amended the German Constitution by permitting Hitler to issue decrees inconsistent with the Constitution. was a valid law since it fulfilled the requirements of the ‘rule of recognition’. Fuller, on the other hand, contended that, since Nazi ‘law’ deviated so far from morality, it failed to qualify as law, and therefore supported the court’s decision—lex iniusta non est lex (an unjust law is not a law). Fuller contends that it is possible to deduce normative conclusions from the nature of the legal system. In a nutshell, Fuller seeks to show that law has an ‘internal morality’. A legal system, he argues, is the purposive human ‘enterprise of subjecting human conduct to the guidance and control of general rules’. Wacks, R. 2012. Understanding Jurisprudence: An Introduction to Legal Theory. 3rd ed. Oxford: Oxford University Press. Whatever its substantive purpose, a legal system is bound to comply with certain procedural standards. In the absence of this compliance, what passes for a legal system is merely the exercise of state coercion. Fuller refuses to regard the ‘law’ of the Third Reich as law, a view rejected by Hart who prefers the simple utilitarian position that ‘laws may be law but too evil to be obeyed.’ He maintained that nothing could be gained by adopting a narrower concept of law excluding offensive rules, even though the degree of their immorality may have reached extreme proportions. He did not declare, however, that legal rules which are totally repugnant to justice or the moral sense of men must necessarily and under all circumstances be observed. He suggested that, although such rules are law, there may be a moral right or even duty to disobey them. Bodenheimer, E. 1981. Jurisprudence the Philosophy and Method of the Law. 4th ed. Cambridge: Harvard University Press. Fuller’s position is essentially that law is a ‘purposive enterprise, dependent for its success on the energy, insight, intelligence, and conscientiousness of those who conduct it’. To count as an instance of that enterprise it must fulfil certain moral requirements. Wacks, R. 2012. Understanding Jurisprudence: An Introduction to Legal Theory. 3rd ed. Oxford: Oxford University Press. Hart v Devlin Professor Hart engaged in an equally celebrated debate with the English judge, Lord Devlin. Sparked by a report in 1957 by a British committee, under the chairmanship of Sir John Wolfenden, who was appointed to examine the question of homosexual offences and prostitution. The committee concluded that the function of the criminal law was to preserve public order and decency, to protect citizens from what is offensive and injurious, and from exploitation and corruption of others, especially those who are especially vulnerable: the young, the inexperienced, and the frail. ibid. In the report, the committee argued that: “unless a deliberate attempt is to 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 and immorality which is, in brief and crude terms, not the law’s business. Report of the Committee on Homosexual Offences and Prostitution, Chairman Sir John Wolfenden (Cmnd 247), para 61. In reaching this view, and recommending that both consensual homosexual acts between adults.in private, and prostitution should be decriminalized, the Wolfenden Committee was strongly influenced by the views of the nineteenth-century liberal utilitarian, John Stuart Mill who, in 1859 argued that: “The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.” Himmelfarb, G. 1974. John Stuart Mill: On Liberty. Harmondsworth: Penguin Books. 72–3. This ‘harm principle’ may appear to be a simple yardstick by which to establish the borders of the criminal law but snags arise. First, is the criminal law not justified in punishing what Sir James Fitzjames Stephen referred to as ‘the grosser forms of vice’? And, secondly, who is to say what constitutes ‘harm’? Some argue that the harm principle sets the barrier too high. In the case of freedom of speech, for example, Feinberg, J in his book “Harm to Others: The Moral Limits of the Criminal Law” Published by Oxford University Press in 1984 proposes what he calls an ‘offence principle’ to facilitate the prohibition of those forms of expression that are especially offensive. He maintains that causing offence is less serious than harming someone, and therefore the sanction ought to be less onerous than for actions that cause harm. He cites the example of consensual sodomy and incest where, in the USA, the continuum of sentences have ranged from twenty years imprisonment to capital punishment. Since these are victimless crimes, he contends, the penalty is presumably based on the assumed offensiveness of the behaviour rather than the harm caused. These difficulties are the nub of the dispute between Hart and Devlin. In a series of lectures in 1959 Lord Devlin took issue with the Wolfenden Committee’s position, arguing that society has every right to punish conduct that, in the view of the ordinary member of society (‘the man in the jury box’), is grossly immoral. Harm, he contended, is irrelevant; the fabric of society is maintained by a shared morality. This social cohesion is undermined when immoral acts are committed—even in private, and even if they harm no one. Societies disintegrate from within, he contended, more often than they are destroyed by external forces. In his words: “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, P. 1965. The Enforcement of Morals. Oxford: Oxford University Press. Although Lord Devlin concedes that only those acts that cause ‘intolerance, indignation and disgust’ warrant punishment, Professor Hart challenges the very foundation of his ‘social cohesion’ argument. Surely, Hart insists, a society does not require a shared morality; pluralistic, multicultural societies may contain a variety of moral views. Wacks, R. 2012. Understanding Jurisprudence: An Introduction to Legal Theory. 3rd ed. Oxford: Oxford University Press. Nor, even if there is a shared morality, is it obvious that its protection is essential to the survival of society. In respect of the first assertion, it does seem far-fetched to claim that a society’s foundation is unable to withstand the challenge of a competing ideology or morality. Is a Western society gravely wounded by the Islamic prohibition of alcohol espoused by a significant proportion of its inhabitants? Equally, is an Islamic society unable to withstand the morality of a minority in its midst? Hart does not, however, shrink from supporting a paternalistic role for the law. At odds with Mill, he acknowledges that there may be circumstances in which the law ought to protect individuals from physically harming themselves. The criminal law may therefore justifiably withhold the defence of consent to homicide and assault. Hart also draws an important distinction between harm that is caused by public spectacle, on the one hand, and offence caused merely through knowledge, on the other. Thus bigamy may justifiably be punished since, as a public act, it may offend religious sensibilities, whereas private consensual sexual acts by adults may offend—but only through knowledge, and thus do not merit punishment. Such acts are best addressed by legislation. In the words of the distinguished English judge, Lord Atkin in Shaw v Director of Public Prosecutions: [1962] AC 220 (HL) at 267 “Notoriously there are wide differences of opinion today as to how far the law ought to punish immoral acts which are not done in the face of the public. Some think that the law already goes too far, some that it does not go far enough. Parliament is the proper place, and I am firmly of opinion the only proper place, to settle that. When there is sufficient support from public opinion, Parliament does not hesitate to intervene. Where Parliament fears to tread it is not for the courts to rush in.” Shaw v Director of Public Prosecutions [1962] AC 220 (HL) at 267. Analogous questions arise in the case of the following highly contentious issue Abortion debate; A right to life? At the heart of this matter is the US Supreme Court’s 1973 decision in Roe v Wade. 410 US 113 (1973) The judgment which has been recently overturned established the right of states to prohibit abortion to protect the life of the fetus only in the third trimester. The case is concurrently supported by feminists, and condemned by many Christians. In the abortion debate the sanctity of human life has somehow to be morally weighed against the right of a woman over her body. Most European countries have sought to strike this balance by legislation that permits abortion within specified periods under certain prescribed conditions. It is submitted that in its quest for a conscientious resolution to this complex issue each society must assess its own moral norms. If, as most humans tend to believe, life is sacred, does a foetus count as a person capable of suffering harm? If it does, how is ending its life to be distinguished from the humane killing of a living human? Should the welfare of the yet unborn prevail over the distress suffered by a woman compelled to bear an unwanted pregnancy or endure the anxiety, cost, and difficulty of bringing up a handicapped child? Does the morality of abortion depend on the moral status of the human fetus? Must the law of abortion presume an answer to the question of when personhood begins? Can a law which permits late abortion but not infanticide be morally justified? Greasley, K. 2017. Arguments about Abortion Personhood, Morality and Law. 1st ed. Oxford: Oxford University Press. When Roe v Wade supra, note 22. recognized the constitutional right to termination in 1973, the Supreme Court addressed itself to the question of the fetus’s status under the Constitution. At the time Roe was decided, the fetus had never been recognized as a constitutional person under US law. Texas, the state whose abortion legislation was under scrutiny, argued before the Court that the fetus was indeed a person within the meaning of the Fourteenth Amendment. Speaking for the majority, Justice Blackmun held that the law had never treated fetuses as constitutional persons and could not expand the category now. This was despite his acknowledgement that had the fetus possessed the constitutional status of a person, it would be entitled to equal protection and abortion would be rendered largely unconstitutional. Dworkin Dworkin, R. 1993. Life’s Dominion: An Argument about Abortion and Euthanasia. London: Harper Collins accepted Justice Blackmun’s conclusion about what would follow if the fetus were granted constitutional personhood, but emphatically endorsed Roe’s ruling that it lacked such protected status, arguing that the Court could not have come to any other decision on this point. As he wrote, ‘almost all responsible lawyers’ agree that Justice Blackmun’s opinion on the personhood question was correct, since there was no precedent in US law for the proposition that the fetus is a person, and the Supreme Court lacked the power to recognize new constitutional persons.’ Euthanasia; A right to die? Similar problems inescapably attend the intractable matter of euthanasia. Doctors, lawyers, and eventually judges increasingly encounter the contentious question of an individual’s ‘right to die.’ Often a distinction is drawn (not always convincingly) between active and passive euthanasia. Wacks, R. 2012. Understanding Jurisprudence: An Introduction to Legal Theory. 3rd ed. Oxford: Oxford University Press The former entails the acceleration of a person’s life by a positive act, such as an injection of potassium chloride. Most legal systems treat this as murder. The latter involves the curbing of life by an omission to act: a withdrawal of treatment which is increasingly accepted as humane by both the law and the medical profession in many jurisdictions. But courts have not always found it easy to determine the lawfulness of withdrawing life support from an incurably or terminally ill patient who is in a persistent vegetative state (PVS), unable to make an autonomous decision. Nor are generalizations easy in respect of either the morality or lawfulness of ending the life of a patient. Courts may not be the most appropriate arbiters in these circumstances, but is there a realistic alternative? The intricate distinctions generated when the law confronts awkward moral questions of this kind suggest that they are not susceptible to resolution by slogans such as ‘the right to die’, ‘autonomy’, ‘self-determination’, or ‘the sanctity of life.’ Two decisions of the courts (one English, the other American) illustrate the problems involved. The English case Airedale NHS Trust v Bland [1993] AC 789 at 824–5 arose out of an accident that occurred at a crowded football stadium in 1989. Anthony Bland sustained hypoxic brain damage which left him in a PVS. There was no prospect of any improvement in Bland’s condition that could endure for an extensive period so his doctors applied to the court for permission to withdraw his ventilation, antibiotic, and artificial feeding and hydration regime, while continuing otherwise to treat him so as to allow him to die with dignity and minimal pain and suffering. The Official Solicitor (who acts for those under a disability) maintained that this would constitute a breach of the doctor’s duty to his patient, and a criminal offence. The House of Lords accorded primacy to the right of self-determination over the right to life. A doctor, it held, should respect his patient’s rights in that order. This, the judges said, it is especially compelling where the patient has, in anticipation of his succumbing to a condition such as PVS, expressed his clear wish not to be given medical care, including artificial feeding, calculated to keep him alive. But, though all five Law Lords agreed that Bland’s life should be allowed to end, there is no clear consensus in respect of precisely what the law was or should be. For Lord Goff the answer lay in protecting the best interests of the patient. But what interests can an insensate patient have? Lord Goff thought they consisted partly in the anguish and stress to others. Lords Keith and Mustill on the other hand, were doubtful of this. The House of Lords later ruled that the withdrawal of Bland’s nutrition and hydration did not constitute a criminal offence because any hope of Bland recovering had been abandoned, and, though the termination of his life was not in his best interests, his best interests in being kept alive had also evaporated along with the justification for the non-consensual regime and the duty to maintain it. In the absence of this duty, the withdrawal of nutrition and hydration was not a criminal offence. ibid. A similar solution has been adopted by several courts in the United States and Canada. In the celebrated decision of the United States Supreme Court of Cruzan; Cruzan v Director, Missouri Department of Health [1990] 497 U.S. 261. (involving a patient in a PVS whose parents sought to persuade the court that, though she had not expressed this in a ‘living will’, their daughter would not have wanted to continue living), it was held that the state had an interest in the sanctity, and hence, the preservation of life and that an incompetent person does not have the same constitutionally protected right as a competent person to refuse life sustaining treatment. Similarly, the state’s interest in preserving life looms large in the judgments. As seen in these cases, the Courts cannot evade these painful quandaries. This brings us to our last area of discussion borrowing bits from all that has been said. Private Immorality v Public Indecency There is a clash between the advocates of personal liberty and vanguards of protection of public morality, especially on what has been called ‘crimes without victims’. Schur, E. M. 1965. Crimes Without Victims. Deviant Behaviour and Public Policy: abortion, homosexuality, drug addiction. New Jersey: Prentice Hall. Such crimes include drug addiction, abortion, homosexuality etc. In Shaw v Director of Public Prosecutions [1973] A.C. 435. Shaw was charged with the offence of ‘conspiracy to corrupt public morals.’ The last time anyone was prosecuted for the offence was in the 18th century. Shaw contended that the offence was outdated and urged the trial Court not to enforce it. Shaw was convicted by the Trial Court and unsuccessfully appealed against his conviction to the Court of Appeal and finally to the House of Lords. In upholding Shaws’s conviction, Viscount Simonds held that the court had “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.” What the court frowned at in this case wasn’t the act of prostituting itself, but the manner of its public advertisement. According to Viscount Simonds: “Let it be supposed that at some future, perharps early date, homosexual practices between adult consenting males are no longer a crime. Would it be an offence if, even without obscenity, such pracytices were publicly advocated and encouraged by pamphlet and advertisement. Majority of commentators condemned the decision in this case; for instance, Lloyd, D. Lloyd, B. & Lloyd, D. 1991. The Idea of Law. London: Penguin Books believed that the decision is a deliberate act of policy and he was unhappy that the judges seemed willing to pay a high price in terms of the sacrifices of other values for the establishment or re-establishment of the courts as guardian (custodian) of morals. In Knuller v Director of Public Prosecutions, [1973] A. C. 435. This case was decided against the backdrop of the Sexual Offences Act 1967 which provided among other things, that homosexual acts in private between consenting adult male was no longer a crime. the appellants published in their magazine advertisements placed by readers to contact them for homosexual purposes. The House of Lord applying the reasoning in Shaw v DPP supra, note 31. held that the Sexual Offences Act did not grant the publishers the indulgence to publicly encourage homosexuality. The publishers were therefore convicted of the offence of conspiracy to corrupt public morals. Many have gone on to criticize the judgement of the House of Lords in this case. Lord Devlin for instance took the view that a complete separation of crime from sin could not be good for moral law and might be disastrous for the criminal. He asserts that it’s impossible to ignore the idea of public morality in enforcement of criminal law. To Lord Devlin, a society has a primary right to legislate against immorality as such. Conclusion It appears from the foregoing exposition that law and morality represent distinct normative orders whose spheres of control overlap in part. There are domains of morality which stand outside the jurisdictional boundaries of the law. There are branches of law which are largely unaffected by moral valuations but there exists a substantial body of legal norms whose purpose it is to guarantee and reinforce the observance of moral imperatives which are deemed essential to the well-being of a society. References Black, T. 2022. America Have More Guns Than Anywhere Else in the World and They Keep Buying More. Bloomberg. Retrieved, April, 1. 2023, from https://www.bloomberg.com/news/articles/2022-05-25/how-many-guns-in-the-us-buying-spree-blosters-lead-as-most-armed-country#xj4y7vzkg Bodenheimer, E. 1981. Jurisprudence the Philosophy and Method of the Law. 4th ed. Cambridge: Harvard University Press. Devlin, P. 1965. The Enforcement of Morals. Oxford: Oxford University Press. Dworkin, R. 1993. Life’s Dominion: An Argument about Abortion and Euthanasia. London: Harper Collins Feinberg, J. 1984. Harm to Others: The Moral Limits of the Criminal Law. Oxford: Oxford University Press. Fuller, L. 1969. The Morality of Law revised ed. New Haven, Conn and London: Yale University Press. Greasley, K. 2017. Arguments about Abortion Personhood, Morality and Law. 1st ed. Oxford: Oxford University Press. Hart, H. L. A. 1982. Law, Liberty and Morality. 7th ed. Oxford: Oxford University Press. Hart, H. L. A. 1958. Positivism and the Separation of Law and Morals. Harvard Law Review 71. 4: 593 - 629. Himmelfarb, G. 1974. John Stuart Mill: On Liberty. Harmondsworth: Penguin Books. 72–3. Lloyd, B. & Lloyd, D. 1991. The Idea of Law. London: Penguin Books Report of the Committee on Homosexual Offences and Prostitution, Chairman Sir John Wolfenden (Cmnd 247), para 61. Sanni, A. 2006. Law in Social Context. Introduction to Nigerian Legal Method. Eds. Sanni, A. Ile-Ife: Obafemi Awolowo University Press Limited. 1-57 Schur, E. M. 1965. Crimes Without Victims. Deviant Behaviour and Public Policy: abortion, homosexuality, drug addiction. New Jersey: Prentice Hall. Wacks, R. 2012. Understanding Jurisprudence: An Introduction to Legal Theory. 3rd ed. Oxford: Oxford University Press. CASES Airedale NHS Trust v Bland [1993] AC 789. Cruzan v Director, Missouri Department of Health [1990] 497 U.S. 261. Knuller v Director of Public Prosecution [1973] A.C. 435. Shaw v Director of Public Prosecutions [1961] 2 A.C. 220. Re A (Conjoined twins) [2001] 2 WLR 480. Roe v Wade [1973] 410 U.S. 113.