Explaining the terms “Law” and “Morality” or "Justice".

When discussing law and morality or law and justice, it is important to define the terms, from
the below you will probably decide it is not possible to define what law IS, but it is possible to
describe what it does and what rules apply. This is essentially a philosophical question, which
probably has no answer, but some theorists have attempted to do so.

Similarly, there is no agreement what morality IS, or justice IS and there are various
“schools” of thought.

We shall be looking at the writings and thoughts of philosophers and jurists (legal scholars)
each named person should be considered as an authority in his field whose opinions are
worthy of respect.
What is “Law”?
It is possible to describe law as the body of official rules and regulations, generally found in
constitutions, legislation, judicial opinions, and the like, that is used to govern a society and
to control the behaviour of its members, so Law is a formal mechanism of social control.
Legal systems are particular ways of establishing and maintaining social order.

Definition of law - Legal Positivism

John Austin (English jurist born 1790)
"Province of Jurisprudence Determined"
"A rule laid down for the guidance of an intelligent being by an intelligent being having power
over him."

"A body of rules fixed and enforced by a sovereign political authority."

Professor Hart
(Oxford Professor of jurisprudence, born 1907)
"The Concept of Law" (1961)
Hart defined law as a system of rules, a union of primary and secondary rules,
Definition of law - Marxist theory

Marxist theories of law generally define law as a tool of oppression used by capitalists to
control the proletariat.

Definition of law - Natural Law.

Plato (Greek philosopher born 427 BC)
Aristotle (Greek philosopher born 304 BC)
“An embodiment of Reason”, whether in the individual or the community’.
St Thomas Aquinas (Italian philosopher born 1224)
"Summa Theologiae (Summary of Theology)", Question 90, Art. 4
"Nothing else than an ordinance of reason for the common good, made by him who has care
of the community, and promulgated"
Definition of law - Legal Realism
Oliver Wendell Holmes (American judge and jurist born 1841)
"The Path of the Law" in Collected Papers, 1920
"The prophecies of what the courts will do ... are what I mean by the law,"

The Jurist and Associate Justice of the United States Supreme Court, Oliver Wendell Holmes Jr.,
was born in 1841. Oliver W. Holmes Jr. died in 1935. For information, Oliver Wendell Holmes Sr. (a
Physician and Author) was born in 1809 and died in 1894.

Karl Llewellyn
(American legal scholar born 1893)
"The Bramble Bush" 1951
"What officials do about disputes,"
Lord Browne-Wilkinson (Senior Law Lord born 1930)
"‘The sum of the influences that determine decisions in courts of justice."
Other definitions
Definition of Law - Max Weber
(German Sociologist born 1954)
"Law…exist if it is externally guaranteed by the probability of coercion (physical or
psychological) to bring about conformity or avenge violation, and is applied by a staff of
people holding themselves specially ready for that purpose."
Definition of law - Thomas Hobbes
(English philosopher born 1588)
Hobbes said of the role and function of law in his polemic work ‘Leviathan’ (1651)
"Law is the formal glue that holds fundamentally disorganised societies together."
Definition of law - Glanville Williams “Learning the law”
"Law is the cement of society and also an essential medium of change. Knowledge of law
increases one’s understanding of public affairs. Its study promotes accuracy of expression,
facility in argument and skill in interpreting the written word, as well as some understanding
of social values".
Legal Theory
Natural Law Theory
Natural law holds that law and morality are connected. Law is not simply what is enacted in
statutes, and if legislation is not moral, then it is not law, and has no authority.

In order for man-made law to be valid it must accord with the higher law.

St Thomas Aquinas, called such law (without moral content) a “perversion of law”. Natural
law theory asserts that there is an essential connection between law and morality. This view
is frequently summarised by the maxim: “an unjust law is not a true law”. It follows that if it
is not true law we need not obey it.

Man made law still exists, even if Natural law holds it to be inferior
In 1534 Thomas More believed that he was bound be a higher law (God's law) to a greater
extent than the man-made law and was executed. More refused to accept that Henry VIII
and Parliament could usurp papal authority by declaring the king the head of the Church.

Natural law theory holds that, man-made law is a lower form of law
Before the Christian philosophers, the classical Greek philosophers considered man-made law
to be inferior to the laws of nature.
Although the laws of nature decreed that people should live in communities, the rules people
created to regulate those communities were man-made and subservient to the laws of nature.
Cicero said,
"True law is right reason in agreement with nature; it is of universal application, unchanging
and everlasting; it summons to duty by its commands, and averts from wrongdoing by its
prohibitions. ... We cannot be freed from its obligations by Senate or People, and we need not
look outside ourselves for an expounder or interpreter of it. And 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..."
"De Republica"
Quoted in "A Short History of Western Legal Theory" by Kelly (1992))

Positivism
Positivism emphasizes the separation of law and morality. According to legal positivists, law is
man-made, or “posited,” by the legislature. Where natural law theorists may say that if a law
is not moral there is no obligation to obey it, by appealing to moral or religious principles, but
positivists hold that until a duly enacted law is changed, it remains law, and should be
obeyed.

Legal positivism regards law as a system of clearly defined rules, the law is defined by the
social rules or practices that identify certain norms as laws. Jeremy Bentham (English
philosopher and jurist born 1748) proposed the Utilitarian principle which means that the law
should create “the greatest happiness of the greatest number”. Bentham had little time for
natural law The version of legal positivism of his pupil, Austin was based on the notion that
the law is the command of the sovereign backed by the threat of punishment.

Hans Kelsen (Austrian lawyer and philosopher born 1881) Kelsen's version of Legal
Positivism was that there is no necessary connection between law and morals, and that law
did not require moral validation to be legitimate.

Legal Realism
Legal realism is the view that that we should understand the law as it is practised in the
courts, law offices, and police stations, rather than as it is set forth in statutes or learned
treatises.

For legal realists such as Oliver Wendell Holmes who wrote "The Common Law" in 1923, if
the law were merely a system of rules, we would not need lawyers conducting adversarial
proceedings, because judges could just apply the rules. In fact, judges have discretion with
which they can decide a case in a number of ways, and factors such as the judge’s
temperament, or social class, or political ideology, may determine the outcome.
What does law do? What is its purpose?
Liberalism
John Stuart Mill (English philosopher born 1806 - [Godson of Bentham]), On Liberty
(1859) held that liberalism, seeks to promote as much individual liberty as is compatible with
everyone else having the same liberty, the state should not use the criminal law to prevent
immoral conduct that does not cause harm or offence to others,

JS Mill’s "Harm to Others" Principle

Mill stated "The only time law can be used to prevent someone doing an act, is to prevent
harm to others". The problem is he didn't say what harm is, and he didn't say who others
were. One could ask, “Should you use law to prevent 'harm' in all cases?”

Take for example adultery and suicide, both would cause 'harm' to others. However, the law
will say nothing about such behaviour.
Utilitarianism
Bentham argued that a utilitarian view of the law is that the law should produce the best
consequences. The utilitarian approach is most often seen the relation between law and
economics where the law supports the creation of wealth.

Positivists such as Bentham and Austin see law as a system of commands backed by
sanctions. Others such as Professor Hart stress rules and their pedigree as the essential
elements of a legal system. Ronald Dworkin (American philosopher born 1931) disagrees,
and said law involves principles as well as rules.

Sovereign commands
How does the positivist distinguish commands that count as law from commands that do not,
without appealing to morality? Austin argues that law is distinguished from other commands
by being the command of the sovereign; he wrote in “Lectures on Jurisprudence” (1869)) that
the gunman’s command lacks this pedigree.

Who then is sovereign? Not someone who has a right to rule, or who rules legitimately, for
this would interject morality into the law. Rather, it is someone who is sovereign, who is in
fact obeyed.

Professor Hart answers this by saying that it makes the legal system nothing more than “a
gunman writ large”.

Hart adapted Kelsen's illustration of a gunman demanding money from a bank:-

The gunman commands the clerk to hand over the money. The gunman backs up this
command with the threat that if he does not do so he will be shot. The clerk feels obliged to
hand over the money.

It follows therefore that law cannot simply be made up of commands

For Hart we distinguish laws from other commands by viewing law as a union of primary and
secondary rules. Laws consist largely of primary rules.

All societies develop rules

Hart concluded that there are some essential primary rules.
In "The Concept of Law” Hart says the reason for primary rules is our knowledge of certain
self-evident truths.
Primary Rules
Such truths, says Hart, are the minimum necessary that any society will recognise.
1. We know we are all vulnerable to attack from others. Human beings are
vulnerable to bodily attack and need protection. No man alone can dominate others for
more than a short period - he must stop to sleep, and then he in his turn needs to be
protected.
2. We all have approximately equal physical and intellectual powers. Men are not
infinitely wise or strong-minded, and sanctions are needed to ensure that those who
comply voluntarily with the rules are not sacrificed to those who do not.
3. We all have limited concern for others and limited will power. Men are neither
devils nor angels; they act largely from self-interest but generally care for the interests
of others close to them.
4. Finally, we know that we live in a world of limited resources. The basic needs of
life - food, clothes, shelter etc - are scarce and require some effort to obtain: this
requires rules to protect rights of ownership and to allow ownership to be transferred.
Hart appears not to include rules that limit sexual impulses or rules imposing duties on
parents to care for their children, and on younger people to care for the elderly.

Secondary rules
Just because society is governed by rules, does not mean that it has a legal system.

Some small-scale primitive societies have rules based only on informal custom.

The customs will be well known by everyone, when disputes do occur they will be resolved by
group discussion and conciliation.

Changing the rules occurs as the pace of change demands.

More developed societies will require more complex rules to deal with the economic, social
and political complexities that inevitably follow. The simple societies have a cohesion bonded
by the simple rules this is lost as societies become more complex.

Hart describes these three types of rule as:

 Recognition. To avoid uncertainty, the complex societies develop rules of conduct,
which are recognised, particularly by the officials.
 Change. These rules will lay down who can change the rules.
 Adjudication. Rules of adjudication, defining the procedures to resolve dispute will be
developed. This may lead to a court system

He calls these Secondary rules to distinguish them from the primary rules.

He says that this 'union of primary and secondary rules is at the centre of a legal system.'
Some jurists believe the real test of whether a legal system exists is simply the institution of
a court.

Rules and principles

Another theory, called purposive adjudication, defended by Dworkin ("Law’s Empire", 1986),
holds that law is not, as Hart says, merely a set of rules, but of rules as well as underlying
principles, and judges should appeal to these principles - to the spirit or purpose of the law -
not just narrowly to the letter of the law. This is different from appealing to a natural moral
order, which is entirely subjective, principles are often objective.

Dworkin uses as an example the legal rule that the last will and testament of the deceased
should be respected is modified by the principle that no one should profit from his or her own
wrong.
Dworkin proposes a scenario of a son who murders his father, he will not benefit from his
father's will because of the legal principle that he should not profit from his own wrong,
despite the legal rule that he should inherit in line with the terms of his father's will ("Taking
Rights Seriously", 1977).

Law is a necessary evil to resolve disputes

It is certainly true that law plays a less important role in some societies than it does in
England: in China and Japan, for example, law is seen as a last resort and disputes are
resolved partly by reference to tradition and partly by a process of conciliation.
Even here, however, most scholars see law as a necessary evil: St Augustine (Algerian
Christian philosopher, born 345) said it was a natural necessity to curb man's sinful nature.
Secular scholars also tend to agree on the need for law to respond to human nature.

The American realists

Karl Llewellyn identified five "law jobs"
Law in any community serves to
  Prevent disruptive conflicts within the community. Law helps maintain a
peaceful, orderly society, and contribute to this stability by providing a means of
resolving disputes.
 Resolve disputes between members of the community. Property law facilitates
business activities, while laws limiting the powers of government help ensure some
individual freedom.
 Accommodate changes in the circumstances of the community and its
members. Law can also be a means of accomplishing social change, as for example
in the prohibition of racial discrimination on the one hand and the establishment of
national health and social security systems on the other.
 Recognise the authority structure of the community, and
 Establish procedural rules for performing other tasks

Oliver Wendell Holmes wrote in The Common Law (1881) that the life of the law is not logic
but experience, “The prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law”;

Roscoe Pound (American jurist born 1870) named the informal practices of legal institutions
“the law-in-action,” contrasting it to “the law-in-the-books,” by which he meant formally
enacted legal doctrine.

A functionalist approach
Would see the law as characterising the values and principles of society and maintaining these
values by securing compliance. The law is symbolic, and expresses wrong by providing a
remedy for those who feel they are victims of wrongdoing. By providing a deterrent,
compliance can be assured, at least among ‘...some of the population, some of the time, in
some circumstances...’ (Walker ‘The Some Theory’)
Hart said in “The Concept of Law” ‘Law is the means by which we articulate displeasure at
anti-social conduct.’

The function and role of law are defined at a particular point in history
For example Albert Venn Dicey (English academic born 1835) writing in 1885, claimed the
law at that time operated a formal equality at the expense of a substantive quality. The law
was blind to the differences of wealth or power and assumed all possessed abstract rights and
duties.

FA von Hayek (Austrian economist born 1899) thought the law should apply to all and
benefit none in particular. Hayek regretted the role of the law (in 1944) to be what he saw as
supporting an interventionist state replacing a free-market economy. The law provided a
legal framework for a particular form of economic activity.

Is the role of law to protect the subjects from an encroaching modern state?
Margaret Thatcher (British prime minister born 1925) advocated the ‘rolling back of the
state’ where individuals were responsible for their actions and welfare.

EP Thompson (English Marxist historian born 1924) was critical of what has in fact been the
increasing role of the law in the lives of individual subjects in a way that has undermined civil
liberties while following its own concept of public interest.

Matrix Churchill
Subsequent to Thompson’s writing there have been a number of high profile cases of civil
liberties being ridden over to support the state’s interest, for example the Matrix Churchill
trial.

Does society actually need a legal system.

Many philosophers, from Plato to Karl Marx (German founder of communism born 1818),
have argued that law is unnecessary:
Plato
Plato argued that man is naturally good and simply needs education to guide his behaviour,
while Marx saw law as a tool of class oppression that we could be do away with, once a truly
socialist society had taken over. History has shown that his theory has many practical
difficulties and few states have retained a truly communist system.

Marxism
Marx saw the law as an instrument of control by capital of the working classes. Sometimes
law appears to work in their favour but in reality only serving capital. Property laws in the
UK serve well those that are landed and have goods and chattels.

This is not to suggest a conspiracy by capital, but simply how the system operates so that
capitalism survives, and ergo the nation is more prosperous; it is axiomatic that law favours
capital.

Even legislation aimed at protecting the worker does not work against capital. Factory safety
regulations found necessary following the industrial revolution may have been more about
handicapping competitors than the welfare of workers.

The provision of schools and health care may have had more to do with providing an educated
work force and a fit population from which to recruit soldiers than the general good of the
population and of the individual.

Respect for Law

On the one hand, If a custom or norm is assured of judicial backing, it is, for practical
purposes, law. On the other hand, a statute that is neither obeyed nor enforced is empty law.

The role of law in China and Japan and modern Russia, for example, is different from role of
law in western nations. In those countries there is a low respect for the law, except in
business and industry. Tradition features highly. Resort to law is a last resort; conciliation is
preferred for social control.

What is morality?
"The quality of being moral conforming to standards and principles. A religious code of
conduct". A moral right; "A claim people would think is justified but not necessarily
supported by law". F.S. Harraps Law Dictionary.

Moral views can change over time

In 1934 it was implied in a film about Russia that Rasputin had raped the Princess
Youssoupoff. In 1934 it was necessary to protect her reputation by going to court
(Youssoupoff v MGM Pictures (1934) CA). Would she need to do so today?

In the USA opium used to be used by the middle classes and thought not to be morally
wrong, but when it was criminalised by the Harrison Act 1914 attitudes changed when the
hardened users were perceived as low-life. It then was morally unacceptable.

Definitions
Law requires a definition, but morality can be many things.

Justice is an aspect of morality

Justice is concerned with how classes of individuals are treated. Equality before the Law is
considered vital in modern societies. Certain classes of person such as MP's and judges have
greater immunity regarding their freedom of speech. And police officers have greater powers
than ordinary subjects. To prevent abuse by officials of these privileges there are extensive
rules of behaviour.

Law and morality compared

Applied Applied by
Law A system of social norms Morality
by Courts "Society"

Individual
Recognise Forces Backed up Backed up by
It might force you to do a principle
d by you to do by threat of social
thing or
Society things prison condemnation
preference

Issues of law and morality have always been at 'odds' with each other. Many people argue
that not everything that is illegal, for example, parking on a yellow line, is immoral; not
everything that is immoral, for example, breaking a promise, is illegal.

Morality is 'personal' to the individual; law must be 'universal' to society.

Problems occur when issues of “personal choice” arise

Shaw v DPP (1962) HL and Knuller v DPP [1973] HL show how the judiciary are willing to
move the “goal posts”. They will prohibit behaviour they think society will be wrong.
The big question is “Who should say?” what should be prohibited, should it be Parliament or
judges? Furthermore, what things should they prohibit?

In Shaw Viscount Simonds said

“In the sphere of criminal law I entertain no doubt that there remains in the courts of law 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, and that it is their duty to
guard it against attacks which may be the more insidious because they are novel and
unprepared for.”
This bold statement has not been followed, and the “residual power” is doubted.

Government pressure ensured that we've cracked the morality of drink driving, but what
about the morality of speeding?

Is law appropriate for producing social change?

Law can be a force for social change. Health, education, discrimination are but three areas
where the law has been used to engineer society.
The National Health Service in 1947 created by law has been a major success in improving
society, but some observers question whether this is an appropriate use of the law.

This also applies to the criminal law for example; the Race Relations Act 1965 has been the
subject of considerable criticism, by writers who question whether it is right to legislate in the
field of personal relationships. The legislation has clearly not been a total success - racial
discrimination still remains entrenched in some geographical and social areas - but now few
people would claim that this is not a proper field for legal intervention as a force in educating
and changing behaviour.
Law and Morality
Not all people are convinced that the law should used to enforce a particular moral code.
Homosexuality was decriminalised in 1967, but s.28 of the Local Government Act 1988
prohibited its promotion in schools as an acceptable way of life. The Local Government Act
2003 section 122 removed this prohibition.

The common law has been used to denounce homosexual behaviour, for example in R v
Brown [1994] HL the criminal law punished sexual behaviour that caused no harm to anyone
except some consenting adult participants.

Interaction between Salmond’s Interlocking Circles

Law

Morality

Primary

Law

In any legal system there will be some overlap between legal and moral rules.
This is called Primary Law where such crimes as murder and theft are said to be placed. It is
this primary law that tempts us to argue that law and morality are one and the same thing.

Legal and moral wrongs

Telling lies or acting dishonestly is generally considered to be wrong morally.
Dishonesty in certain circumstances may be regarded as legally wrong, but only under strict
definition. E.g. Sec 1 Theft Act, 1968.

"Absolutes of behaviour"
There are few of these. Society’s values and ideology tell us that killing, raping and stealing
are wrong. But there may be circumstances where it is justified. E.g. aborting a child.
Morals imply a higher standard of behaviour. Law needs to be justified.

Normative rules
Morality is composed of "Normative rules" which set out what a person should do, or what
s/he should refrain from doing.

The emphasis is on "should", because the individual is not compelled to abide by normative
rules, he or she simply ought to.

Positive rules
Law is made up of "Positive rules" which impose a legal obligation to do or refrain from doing
something. If a positive rule is breached a sanction may be imposed.

Examples of positive rules

 Do not kill - murder is a a common law offence
 Do not park on double yellow lines - contrary to local byte-laws
 Do not steal - theft is contrary to section 1 Theft Act 1968
Examples of normative rules
 Honour thy father and thy mother
 Do not bear false witness (Be truthful)
 Rescue a drowning child
Law is often written in the negative
The law generally requires us to refrain from doing things, leaving us free to do whatever it
does not prohibit. So, it prohibits murder and theft, but leaves us free to commit adultery,
lie, and read horoscopes.

Sometimes it requires us to do certain things, for example to register a child's birth, or return
our tax form. But it does not require us to put ourselves out and rescue drowning children,
unless we have a duty to so act because of a special relationship.

Some of the above examples come from Biblical teachings, particularly the Ten
Commandments and theft and murder are part of the English Legal System, but many of the
remaining 8 are not.

Consequences, a utilitarian argument

A utilitarian approach is to judge actions by their consequences. Others (called deontologists)
argue that actions are intrinsically either right or wrong.

Thus utilitarians argue that the "ends justify the means" even if the means are sometimes
immoral.

It might therefore be acceptable to allow a terrorist bomb attack to go ahead, killing a

number of people, if by doing so the safety of an informer is ensured. The informer will then
be able to give further information about future attacks which could save many more lives.

Hart-Devlin Debate

The issue of legalising of homosexuality and prostitution was investigated by the Wolfenden
Committee headed by Sir John Wolfenden. The Report claimed that it is not the duty of the
law to concern itself with immorality. Professor Hart, and Patrick (later Lord) Devlin (Law
Lord) contributed to the debate.
It was argued that homosexuality should be decriminalisation on the basis of:
1) Freedom of choice
2) Privacy of morality

Devlin’s position
Law without morality, said Devlin “… destroys freedom of conscience and is the paved road
to tyranny”. Devlin appealed to the idea of society's "moral fabric." He argued that the
criminal law must respect and reinforce the moral norms of society in order to keep social
order from unravelling.
"Societies disintegrate from within more frequently than they are broken up by external
pressures. 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, "The Enforcement of Morals" (1959)

Devlin’s view was that any category of behaviour was capable of posing a threat to social
cohesion. Therefore, morals laws are justified to protect society against the disintegrating
effects of actions that undermine the morality of a society.

This social cohesion argument, i.e. the notion of a shared morality was he said necessary for
the survival of society. However, what is not clear is what “society” is and whether society's
views are always correct.

Devlin argued that immorality is what every right-minded person considered immoral.
Devlin argued that there could be no theoretical limit to the reach of law; no acts are “none
of the laws business”. (Margaret Thatcher once declared, "There's no such thing as society,
there are individual men and women and there are families.")

Devlin suggested that the common morality could be discerned by asking

"What is acceptable to the ordinary man, the man in the jury box, who might also be called
the reasonable man or the right minded man"
Devlin chose the man in the jury box because;
a) The verdict of a jury (twelve men and women) must be unanimous (at the time he was
writing)

b) The jury will only reach its verdict after the issue has been fully examined and deliberated.

c) The jury box is the place where the ordinary person's conception of morality is enforced.

Devlin "The Enforcement of Morals" (1959)

Devlin's guidelines
Privacy should be respected.
Law should only intervene when society won't tolerate certain behaviour.
Law should be a minimum standard not a maximum standard.

Hart’s position
Hart warned against the dangers of “populism”. Why should the conventional morality of a
few members of the population be justification for preventing people doing what they want?
This is based on the theory that most people's views are coloured by superstition and
prejudice.
Hart reiterated Mill's "harm principle", Hart pointed out that societies survive changes in
basic moral views. It is absurd to suppose that when such a change occurs, to say one society
has disintegrated and been succeeded by another.

Both Hart and Devlin raise important issues. Devlin's view is pragmatic and focused on the
majority rule. Harts is more humanistic and individual.

Dworkin
Dworkin suggests that we should abandon the Hart-Devlin debate and concentrate of
Liberties. If a behaviour is a Basic Liberty (like sex), this should never be taken away, even if
someone has a different way of 'doing' sex e.g. R v Brown (The Spanner Case) General
liberties could be restricted if they cause harm. But, it is not clear how you tell the difference
between a basic and a general liberty?