Law and morality
Is homosexuality sinful? What’s wrong with abortion? Why is racism bad? Moral questions of this kind arise inexorably in almost any legal system. And confronting them is among the fundamental characteristics of a free society. Moreover, the language of morals is increasingly employed on the international stage. When an American president described an ‘axis of evil’ existing between certain nations, he was (probably unconsciously) presuming a normative yardstick by which to measure the conduct of states, that, since the formation of the United Nations, is partly embodied in an expanding anthology of international declarations and conventions.
Although we cannot easily evade moral question marks, the identification, or even the acknowledgement, of moral values by which to live, is always contentious. Being or doing well is not necessarily synonymous with obeying the law, even though the law, its ideas and its institutions, are often informed by moral values. It would be strange if it were otherwise.
The relationship between the law and the moral practices (or ‘positive morality’) adopted by society may be represented by two partially intersecting circles. Where they overlap we find a correspondence between the law and moral values (for example, murder is both morally and legally prohibited in all societies).
Outside the overlapping zone, reside, on the one hand, acts which are legally wrong, but not necessarily immoral (for example, exceeding your time on a parking meter) and, on the other, conduct which is immoral, but not necessarily unlawful (such as adultery). The greater the intersection, the more likely the law is to be accepted and respected by members of that society.
In some cases, of course, there will be a conflict between the law and the moral code of certain individuals or groups. So, for example, a pacifist who is required to serve in the military may be compelled to become a conscientious objector and face imprisonment as a consequence of his violation of the law.
Similarly, journalists in many countries claim a right not to disclose their sources. This will not, however, assist them when they are required to reveal this information as a witness in a trial.
More extreme is the situation in which the law actually conflicts with the majority’s moral values. In apartheid South Africa, for instance, the law was used to pursue immoral aims. As the creation of a white minority, the political system disenfranchised every black person, and the law discriminated against them in several important aspects of social and economic life. In such cases, we may beg to ask whether unjust legislation of this kind qualifies as ‘law’.
Must law be moral? Can anything count as law?
A celebrated, if somewhat inconclusive, debate between two leading legal philosophers sought to establish the grounds, if any, upon which immoral laws may nevertheless be regarded as ‘law’.
At its heart was a decision of a post-war West German court. In 1944, during Nazi rule, a woman who wished to dispose of her husband denounced him to the Gestapo for insulting remarks he had made about Hitler’s conduct of the war. The husband was tried and sentenced to death, though his sentence was converted to service as a soldier on the Russian front. After the war 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’.
Professor H. L. A. Hart, Professor of Jurisprudence at Oxford, contended that the decision of the court, and similar cases pursuant to it, was wrong, because the Nazi law of 1934 was a formally valid law. Professor Lon Fuller of Harvard Law School, on the other hand, argued that, since Nazi ‘law’ deviated so significantly from morality, it failed to qualify as law. He therefore defended the court’s decision, though both jurists express their preference for the enactment of retroactive legislation under which the woman could have been prosecuted.
For Fuller, law has an ‘internal morality’. In his view, a legal system is the purposive human ‘enterprise of subjecting human conduct to the guidance and control of general rules’. A legal system must conform to certain procedural standards, or what may appear to be a legal system is simply the bare exercise of state coercion. This ‘inner morality of law’ consists of eight essential principles, failure to comply with any one of them, or substantial failure in respect of several, suggests that ‘law’ does not exist in that society. He relates the sad tale of a king, Rex, who, to his cost, neglects these eight principles. He fails to make rules at all, deciding questions ad hoc. He fails also to publicize the rules. He enacts rules which are retroactive, difficult to understand, contradictory, and which require conduct beyond the powers of the affected party.
Moreover, his rules change so frequently that the subject cannot adjust his action by them. Finally, there is no correspondence between the rules as announced and their actual administration.
These failures are, Fuller explains, mirrored by eight forms of ‘legal excellence’ towards which a system of rules may aspire, and which are embodied in the ‘inner morality of law’. They are generality, promulgation, non-retroactivity, clarity, non-contradiction, possibility of compliance, constancy, congruence between declared rule and official action.
Where a system does not conform to any one of these principles, or fails substantially in respect of several, it could not be said that ‘law’ existed in that community. Thus, instead of adopting a substantive natural law approach, Fuller espouses a procedural natural law approach. The ‘internal morality of law’ is essentially a ‘morality of aspiration’. Nor does it claim to accomplish any substantive ends, apart from the excellence of the law itself.
Not the law’s business?
Professor Hart engaged in another important debate on the relationship between law and morality. This time his adversary was the English judge Lord Devlin. The so-called Hart/Devlin debate illuminates certain fundamental aspects of the role of the law in seeking to enforce morality. It is a classic confrontation that remains the starting point for any serious discussion of this subject, not only in Britain but throughout the world.
The catalyst for the debate was a report in 1957 by a British committee, under the chairmanship of Sir John Wolfenden, appointed to examine the question of homosexual offences and prostitution. It 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. But: 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. In arriving at this conclusion (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 19th-century liberal utilitarian John Stuart Mill, who, in 1859, argued that:
[T]he 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.
At first blush, this ‘harm principle’ as the touchstone by which to fix the boundaries of the criminal law seems uncomplicated and attractive. But two immediate difficulties arise. First, is the criminal law not justified in punishing what another Victorian utilitarian, Sir James Fitz James Stephen (uncle of the novelist Virginia Woolf ), called ‘the grosser forms of vice’? And, second, who is to say what constitutes ‘harm’?
This pair of problems is the nucleus of the disagreement 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:
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 … [T]he suppression of vice is as much the law’s business as the suppression of subversive activities. But, though 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. 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. Differing 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. Requiring seat belts in vehicles or crash helmets to be used by motorcyclists is a legitimate exercise of legal control.
A key distinction is also drawn by Hart between harm that is caused by public spectacle, on the one hand, and offence caused merely through knowledge, on the other. Hence bigamy may justifiably be punished since, as a public act, it may cause offence to religious sensitivities, whereas private consensual sexual acts by adults may cause offence – but only through knowledge, and thus do not justify punishment. Such acts are best dealt with by legislation. In the words of the distinguished English judge Lord Atkin:
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.
A right to life?
Moral questions rarely admit of simple solutions. They frequently polarize society. The abortion debate in the United States is a compelling example. Christian groups condemn (occasionally violently) the practice of abortion, regarding it as murder of a foetus. Feminists, on the other hand, consider the matter as fundamental to a woman’s right to control her own body.
There is no apparent middle ground. Ronald Dworkin vividly portrays the ferocity of the struggle:
The war between anti-abortion groups and their opponents is America’s new version of the terrible seventeenth-century European civil wars of religion. Opposing armies march down streets or pack themselves into protests at abortion clinics, courthouses, and the White House, screaming at and spitting on and loathing one another.
Abortion is tearing America apart. At the core of the divisive subject of abortion is the decision of the United States Supreme Court in 1973 of Roe v Wade in which the court held, by a majority, that the abortion law of Texas was unconstitutional as a violation of the right to privacy. Under that law abortion was criminalized, except when performed to save the pregnant woman’s life. The court held that states may prohibit abortion to protect the life of the foetus only in the third trimester. The decision, which has been described as ‘undoubtedly the best-known case the United States Supreme Court has ever decided’ is simultaneously embraced by feminists, and denounced by many Christians. It is the - always vulnerable - slender thread by which the right of American women to a lawful abortion hangs.
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. In Britain, for example, abortion is lawful if it is certified by two medical practitioners that to continue the pregnancy would involve risk to the life of, or injury to, the pregnant woman or her existing children, and that the risk is greater than if the pregnancy were terminated. It is lawful also if there is a substantial risk that if the child were born it would suffer serious physical or mental handicap. It is a criminal offence to terminate a pregnancy when the child is capable of being born alive. This is normally after 28 weeks. More recent legislation provides that a pregnancy that has not exceeded 24 weeks may be terminated where its continuation would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family, but no time limit is imposed where termination may be necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman, or risk to her life, or if there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
In its quest for a conscientious resolution to this complex issue, each society must appraise its own moral currency. 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 as 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?
Comparable deliberation inevitably attends the equally daunting issue of euthanasia. Doctors, lawyers, and ultimately courts perennially wrestle with the contentious question of an individual’s ‘right to die’. A distinction is usually drawn (not always convincingly) between active and passive euthanasia. 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 shortening of life by an omission to act: a withdrawal of treatment, which is increasingly accepted by both the law and the medical profession in many jurisdictions as humane. 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. There is, for instance, an important distinction between a patient who is incurable, and one who is terminally ill. The latter spectrum may range between incapacity (a fully conscious patient who can breathe unaided), artificial support (a fully conscious patient attached to a ventilator), unconsciousness, to intensive care (where the patient is comatose and is attached to a ventilator). Different considerations arise in each of these situations.
The complexities provoked when the law encounters thorny moral questions of this kind suggest that they are not susceptible to resolution by slogans. ‘The right to die’, ‘autonomy’, ‘self-determination’, or ‘the sanctity of life’ are generously deployed in these debates, but the law must develop careful, reflective answers that best serve the public interest. Judges may not be the most appropriate arbiters, but is there an alternative? Two decisions of the courts (one English, one American) illustrate the perplexity involved.
The English case arose out of a crush that occurred at a football stadium in 1989. Anthony Bland sustained hypoxic brain damage which left him in a persistent vegetative state. Though his brain stem continued to function, his cerebral cortex (the seat of consciousness, communicative activity, and voluntary movement) was destroyed through lack of oxygen, but he was not ‘legally dead’. The judge, Lord Justice Hoffmann (as he then was), described his wretched state as follows:
He lies in … hospital … fed liquid food by a pump through a tube passing through his nose and down the back of his throat into his stomach. His bladder is emptied through a catheter inserted through his penis, which from time to time has caused infections requiring dressing and antibiotic treatment. His stiffened joints have caused his limbs to be rigidly contracted so that his arms are tightly flexed across his chest and his legs unnaturally contorted. Reflex movements in his throat cause him to vomit and dribble. Of all of this, and the presence of members of his family who take turns to visit him, Anthony Bland has no consciousness at all … The darkness and oblivion … will never depart.
There was no prospect of any improvement in Bland’s condition that could endure for a substantial period. His doctors applied to the court for permission to withdraw his ventilation, antibiotics, 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) argued that this would constitute a breach of the doctor’s duty to his patient, and a criminal offence.
The House of Lords (the United Kingdom’s court of final appeal) regarded the right of self-determination as more important than the right to life. The doctor should respect his patient’s rights in that order. This 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 fi ve 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. All recognized both the sanctity of life and the autonomy of the patient, but how were these values to be reconciled in the absence of an explicit expression of instructions by Bland? 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 were
doubtful, the latter declaring:
[I]t seems to me to be stretching the concept of personal rights beyond breaking point to say that Anthony Bland has an interest in ending these sources of others’ distress. Unlike the conscious patient he does not know what is happening to his body … The distressing truth which must not be shirked is that the proposed conduct is not in the best interests of Anthony Bland, for he has no best interests of any kind.
This approach seems to echo the stance adopted by several courts in the United States and Canada. In the celebrated decision of the United States Supreme Court of Cruzan, for instance (involving 80 Law 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. Similarly the state’s interest in preserving life looms large in the judgments.
In the event, the House of Lords 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.
Courts around the world cannot circumvent these distressing dilemmas. Their burden would be considerably eased by the existence of a ‘living will’ in which an individual stipulates something along the lines of the following: ‘If, as a result of physical or mental incapacity, I become unable to participate in decisions concerning my medical care and treatment, and subsequently develop any of the medical conditions described
below (from which two independent physicians certify I have no reasonable prospect of recovering), I declare that my life should not be sustained by artificial means.’
Killing people outside war is the most seriously-regarded crime ordinarily committed. The only thing more strongly forbidden by our culture is eating people (even if they are already dead). We enjoy eating members of other species, however. Many of us shrink from judicial execution of even the most horrible human criminals, while we cheerfully countenance the shooting without trial of fairly mild animal pests. Indeed we kill members of other harmless species as a means of recreation and amusement. A human foetus, with no more human feeling than an amoeba, enjoys a reverence and legal protection far in excess of those granted to an adult chimpanzee. Yet the chimp feels and thinks … and may even be capable of learning a form of human language. The foetus belongs to our own species, and is instantly accorded special privileges and rights because of it.
Richard Dawkins, The Selfish Gene, 30th anniversary edition (OUP, 2006), p. 10
The law in the Netherlands sets out in fairly lucid terms the conditions that must be satisfied before a doctor is permitted to end a patient’s life.
Doctors involved in voluntary euthanasia or suicide must:
A. be convinced that the patient’s request was voluntary, well-considered and lasting B. be convinced that the patient’s suffering was unremitting and unbearable
C. have informed the patient of the situation and prospects
D. have reached the conclusion with the patient that there was no reasonable alternative
E. have consulted at least one other physician
F. have carried out the procedure in a medically appropriate fashion.
Section 293(2) of the Dutch Criminal Code