Law Made Simple

The existence of unjust laws, such as those enforcing slavery, prove that morality and law are not identical, although the existence of laws that serve to defend basic values against acts such as murder and rape give compelling testimony to the fact that the two can coexist. Examination of the division between morality and the law, and the role that morality should play when considering the validity of law will be subject, in this instance, to the investigation of the debate originating from the Wolfenden Report and the theories of natural law and positivism.

Exploration of the social dimensions of the law is key to the understanding of the principles behind which the law is formed, and indeed the value attached to it. The widely held, although disputed, notion that there is some sort of correlation between "good" and that "which comes naturally" forms the basis of the theory of natural law. In the absence of legal authority to the contrary, the courts sometimes take what is seen as a naturalistic approach in finding the outcome of a case.

The case of Corbett would be seen at the time, and perhaps even now, a morally correct decision, in that the sanctity of marriage be kept within the bounds of tradition. The fact that the individuals concerned were indeed adults and were very much in love, signified by the fact that they were willing to take the matter to the courts, was of no consequence, and some may argue that the decision was at the cost of their liberty. A move towards a more liberal approach may be seen within recent developments in statute.

A concept of natural law points to the fact that it is stationary in its terms and has far-reaching and universal application. This is evident in the summary given by Cicero, in which he says:

".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."

In the above passage, Cicero prescribes that "God" is the author of this law, adding weight to his theory of universal application. Holding true to such a theory may give rise to complication, as laws devised from religion, and so god in their view, could deliver in many peoples eyes a barbaric and immoral remedy to the acts such as theft, as they fall within the bounds of what may be interpreted as sin.

A key positivist theory prescribes a separation between morals and the formation of laws, in that: ".there is no necessary connection between law and morals." , and that laws should be formed ".without resort to moral argument." This idea is known as strict positivism, and perhaps sees law making as a rigid logical process, absent of any moral undertaking in its formation.

In contrast, the theory of soft positivism accepts the possibility of taking moral factors into account, although any form of positivism maintains a distinction between morals and the law.

The heart of this argument is distinguishing whether laws are in fact reasonable, and questions whether unreasonable and morally abhorrent laws, such as the laws of Nazi Germany, should have had the status of law in the first instance. Following from this standpoint, the duty of obedience to the law should be questioned. Disobedience to the law has, in certain cases, been viewed by the courts as justifiable in instances where the laws have been "highly iniquitous" , and where statutes are held to be "violating natural law."

A limitation to the duty of obedience to the law has also been represented in the English courts, in that those who attempt to use the law to abstain from a "morally correct" undertaking would be in contradiction of what the law attempts to achieve.

Deviation from the law, and the adherence to it may be justifiable in instances of iniquity and moral incorrectness, however further examination behind the theories of law would need to ascertained before one could take such a stand.

Aristotle recognised a need for some remedial mechanism which is capable of restoring the balance of justice, in the instances that the law is unable to do so, and from this he employed the idea of equity. The fundamental principle being that equity brings remedy to imbalances which the law has created, and is the origin of the concept of equity adopted in English law, developing from practices in the court of chancery. In English courts the law of equity prevails over common law in cases of conflict, indicative of the English legal system's intention to operate from a morally correct position, in keeping with the principle of natural law.

An often cited natural law theory is that true law, and therefore true justice is an expression of the laws of nature itself, and to deviate from it would be a deviation from nature itself. Cicero emphasizes the importance of natural law to the extent that those who refuse ".to obey it will be turning his back on himself." , and goes on to say: ".A man who does not acknowledge this law is unjust, whether it has been written down anywhere or not." Cicero made a point in saying that "unjust rules.were anything but laws, and by this inference alludes to the fact that there would be no legal obligation to follow such "rules". The same view is held by St Augustine, exemplified by his pronouncement, lex injusta non est lex, which translates as, "an unjust law is not a law".

This leaves open the question of which laws would be natural, and which would not. In Cicero's writings, he points to his creator, in his case "Jupiter", and by the same token, St Augustine identifies natural law to be scri pted by the Judaeo-Christian God.

Aquinas further expands this theory by arguing that there are four types of law, namely the eternal, the divine, the natural and the human. The theory behind eternal law being that the whole universe is governed by God, and as such is governed by divine reason. Following from this concept, his theory of natural law is "nothing other than the participation of the eternal law in the rational creature or human being," and makes reference to Augustine's reliance on St Paul's Epistle to the Romans, in that those that do not possess, or have access to the law may "carry out its precepts by the light of nature".

With such an inference, Aquinas places the church in an exceptionally powerful position, as its religious teachings become involved in the validity of laws. Should the law be based upon the theories of Aquinas and his idea of a predefined divine doctrine, it would create a law beyond criticism, and may in fact oppress the idea of liberty, despite professing to be of the highest moral value. He makes some attempt to address this by way of stating that "human law" and "natural law" are also a types of law, in that they are exercised by human reason, although the idea is still bounded within the limits of faith as they must "observe the conditions which pertain to the very idea of law itself" , which, as we have seen, is governed by a divine manifesto. In addition, his reliance on the bible to map out the idea of law restricts the law to one faith, which by its very nature could not be applied universally, and perhaps in practice, would be forced upon those not in union with that faith.

Aquinas also makes reference to the concept of divine law, as being an unequivocal yardstick of what ought to be done, in the aspiration for "ultimate well-being of eternal life". However, this "yardstick", which is conceived as being beyond the grasp of human reason, gives too higher a discretion to anyone wishing to interpret it.

With reference to the duty of obedience to "human law", Aquinas submits that such laws may be contrary to the divine good, and states that laws of this nature ought not to be observed in any case as "we must obey God rather than men".

Such a passage takes away any freedom of expression; a freedom craved for and intrinsic in human nature. It could be said that there is quite a contradiction to say that all law is limited to "a creator", and that no discretion is within the remit of the people that are to follow it, as it may be argued that it would be illogical for the "creator" to grant a freedom of thought to its creation.

On the basis that Thomism professes to use a divine morality as the basis of law making, it could be argued that it is incredibly immoral to enforce laws emanating from the religious teachings of one faith, and to have any disregard to any opposing opinions or beliefs.

This may have been addressed by a shift to social contractarianism, with respect to the positivist law theory. According to Thomas Hobbes, a derivative of a fundamental law of nature is that individuals should surrender their natural rights, by agreeing with each other to accept the jurisdiction of a sovereign:

".that a man be willing, when others are so too.to lay down this right to all things; and be contented."

In this context, an essential aspect of the status of the sovereign is the power to issue commands which are enforceable to all members, regardless of whether acceptance of that sovereign's authority has been agreed. This view is taken in fear of there being no law, and hence no order in the absence of an authority to police it. This in essence may be true, and is certainly apparent in instances of civil war, although this theory of social contract may lead to an unfair and immoral justice system, based on the principle that there is an obligation to obey the sovereign unequivocally should it keep a sense of order within its jurisdiction.

It could indeed be dangerous and immoral to grant such a power to a government, as arguably the Nazi regime kept a very strict sense of order, and severely oppressed certain citizens within its community, and sought to eradicate freedom of opinion in the chastisement of those that would criticize it. The view that an absence of government would lead to anarchy, has been, and will hold true to the above concept. In Iraq, for example, the absence of government gave rise to looting and general lawlessness, and this was arguably not the case under the strict governance of the former dictator. It could be said that the protection of the people was better served under the dictatorship, regardless of the unjust and morally bankrupt laws passed by him.

The view of obedience to such laws was justified by Socrates, on the basis that he had enjoyed the protection and benefits of the state, and in return would be a willing participant of any form of justice handed to him by that state.

As Hobbes' principal of social contract was derived from the threat of disorder, which is a significant factor in time of civil war, Lock's fundamental concern was to place a limitation on the legitimate authority of government, and justified disobedience to that authority should those limitations be exceeded.

In his Second Treatise on Government, Locke established the idea that all people are born with the inalienable right to life, liberty, and property. In the absence of government, the protection of these rights will, in many cases be uncertain, and in extreme cases be non-existent. Locke argued that a rational solution would be found in a social contract that would provide the necessary protection, and puts emphasis on the fiduciary nature of government power. In doing this he provides a broader basis than Hobbes for justifying a change in government. This would lead, in this instance, to a withdrawal of the acceptance of the governments' legitimacy, should it breach its broader obligation to govern well.

Following from Locke's view, it may be said that this school of thought has far more appeal to society, and placing such an onus on the governing forces of any country would seek to encourage that government to adhere to its duty of governing well. Positivism is "linked to a belief that law and non-legal normative values ought to be seen as being separate, perhaps for analytical purity." In light of this, the passing of law would not be a moral undertaking, in the strictest sense, but a harmonious relationship of serving society well, in order to remain in office. As a consequence, morality should not be the only determining factor in considering the validity of law, in the interests of preserving analytical purity.

To define law in such a way as to include morality, may result in a moral doctrine seeking to enforce its discretion on matters that the individual should arguably have responsibility, such as marriage. Taking such a view may be severely oppressive, and may only be tolerated in circumstances which desperately require the policing of more urgent matters, such as security of the community as viewed by Hobbes.

The Hart and Devlin debate centred on what role morality should play in the enactment of law. As has been seen, a morally neutral legal system would be unworkable, and society would disintegrate in the absence of rules prohibiting things such as rape and murder.

The debate resulted from the publishing of the Wolfenden Report, which gave recommendations on the issues of prostitution and homosexuality. The findings of the report were based on Mills' harm principle, which prescribes that:

".The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm from others."

The report recommended that sanctions be imposed on prostitution, as the function of the criminal law ".is to preserve public order and decency, to protect the citizen from what is offensive or injurious." The report also recommended that homosexual conduct between consenting males in private should not be an offence, as at the time it was.

Although the Street Offences Act passed just two years after the reports findings, it took a further eight years for parliament to pass the Sexual Offences Act, which gives strong indication of parliament's moral view to homosexuality.

After the report, Lord Devlin wrote a book seeking to address the morality behind the findings of the report. Most notably he argued that the law should intervene in moral issues in cases where the activity in question fills the reasonable man with "disgust" and "abhorrence", as society is held together by a shared moral code. Devlin extended this point by making the assertion that failure to uphold the shared moral code would cause society to disintegrate.

It may be said that reasonable men are usually unreasonable, by definition, as they are of average intelligence and in most other areas of their lives. It could also be said that "disgust" and "abhorrence" are not very commendable emotions, and to applaud these emotions could be seen as immoral.

Cases in support of Devlin's view of a shared moral give rise to unjust law, however if the principle of harm be applied instead, the result would be far less draconian.

Similar application of Devlin's theory of "shared moral code" was taken in English courts, despite there being established statute law in contradiction of the application.

The fact that Knuller was charged after both the Sexual Offences Act and the Practice Statement were passed, brings attention to the judiciaries dislike of homosexuality, thus using their own, and perhaps society's morals, at that time, into the process of administering justice.

This view may also be exemplified in the more recent case of Brown, in which it could be argued that the judiciary ruled, taking into account the view of the reasonable man in finding the defendants guilty of GBH, regardless of the fact that consent was present. This can be contrasted with the decision in Wilson, in which the defence of consent was seen as valid. It can be taken from this that the judiciary's attitude toward matters of sexual freedom could be seen as homophobic.

The idea of a "shared moral code" is criticized by Dworkin, in that communities that accept integration of different ideas are more successful as societies, as they will be will be: ".treating everyone with equal concern." It is true to say that diverse societies appear to be the most successful, in terms of economic growth, political stability and social harmony, and by their very nature could not adhere to a single moral code.

The application of a shared moral code to the making of law, has been seen to produce unjust results. It may be argued that the idea of law is to safeguard those in the community that may need protecting from others. The idea of a shared moral code behind law making moves away from this, and a primary reason for law itself.

In response to Devlin's book, Hart wrote Law, Liberty and Morality, in which he draws substantially on Mills' harm principle, the essence of which focuses on freedom as the most important value, in the absence of harm to others.

This view may be incorrect as it does not allow the law to intervene on a paternalistic basis, and prescribes that ".His own good, either physical or moral, is not a sufficient warrant." This principle, prescribes a high degree of liberty by providing a private sphere, although when applied to a number of situations such as drug abuse, alcoholism and suicide, can be seen as incorrect. Mills' harm principle also would bring an absurd result to issues of necrophilia, as it could be seen as a "victimless crime", and as such, could not be governed by laws following this principle.

Hart, in contrast to Mill, accepts that paternalism should play a part in legal regulation in that: ".Choices may be made without adequate reflection or appreciation of the consequences." In light of this notion, freedom of expression or desire can be exercised, only in the instances that harm will not be caused to the individual concerned, or others.

Harts paternalistic approach to the law is perhaps the most just, as it allows society to not be limited to the prejudices of those who seek to impose their moral standpoint and in addition protects its citizens in the process. From this, the validity of law should not have a moral undercurrent as a pre-requisite, as it would have the effect of unnecessarily restricting the masses into a single school of thought, contradicting the very nature of human kind.