Posted in law

LAW AND MORALITY (1); THE DEBATE

INTRODUCTION

The concept of law and morality is viewed by quite a number of persons to have a nexus. Legal scholars as well as persons with an ounce of knowledge on this discourse will jump into a non-remote conclusion that the concept of interest is indeed over flogged.  To state the obvious, law and morality are distinct terms which should not be considered repetitious or synonymous. Law knows no universal definition – it is defined differently by prominent legal gurus – but the definition given by Salmond seems to sink in: “The law may be defined as the body of principles recognised and applied by the state in the administration of justice. In other words, the law consists of the rules recognised and acted upon by the courts of justice.” Morality on the other hand is the recognition of the distinction between good and evil or between right and wrong; respect for and obedience to the rules of right conduct; the mental disposition or characteristic of behaving in a manner intended to produce morally good results. According to Thomas Jefferson, still on morality, “Whenever you are to do a thing, though it can never be known but to yourself, ask yourself how you would act were all the world looking at you and act accordingly.” With the two concepts now defined, apropos it will be to swing our minds to a question asked by Ronald Dworkin which is whether and how the content of each system affect(s) the content of the other. Even Pinky and the Brain are yet to ponder on the two sides of the classical question i.e. in thinking about how the content of the law affects the content of morality, the classical question is: whether we have a moral obligation to follow the law? In thinking about how the content of morality affects the law, the traditional question is: how far is morality relevant to fixing law’s content on any particular issue? It is thus hoped we sit tight as this writer flogs the concept (supra) one more time.

THE DEBATE

Ronald Dworkin was a Jewish American philosopher, jurist, and scholar of United States’ constitutional law. He is deceased but his works remain hail and harty as far as the legal and political field is concerned. His theory of “law and integrity”, in which judges interpret the law in terms of consistent moral principles especially justice and fairness, is among the most influential contemporary theories about the nature of law. Dworkin advocated a ‘moral reading’ of the United States’ constitution and an interpretivist approach to law and morality. He was a frequent commentator on contemporary political and legal issues, particularly those concerning the Supreme Court of the United States, often in the pages of the New York Review of Books. He moves away from positivism’s separation of law and morality since constructive interpretation implicates moral judgement in every decision about what the law is. The obvious answer to the question whether Ronald Dworkin is morally inclined or perhaps a legal moralist is already attended to in this paragraph. But in a bid to have it expressly seen, the Stanford Encyclopaedia summarised Dworkin’s critic of HLA Hart’s legal positivism in the following words: “Dworkin, as positivism’s most significant critic, rejects the positivist theory on every conceivable level. Dworkin denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its moral merits, and he rejects the whole institutional focus of positivism. A theory of law is for Dworkin a theory how cases ought to be decided and it begins, not with an account of the political organisation of a legal system, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects.” Dworkin, in his one system conception of law and morality, characterised his own interpretivism as rejecting both the complete independence of law and morality (which he ascribes as positivism) and the veto position of morality over law. Even then, Dworkin says he was able to see, against positivism, that law includes not just enacted rules, or rules with legal pedigree, but justifying principles as well. These principles, he says, are the ones that provide the best justification in morality of…enacted rules.
It is clear that Ronald Dworkin says that it is wholly unacceptable to say that there can be a survival of law without morality and vice versa. However, it seems like his rejection of the veto position of morality over law is enough to be deemed merely hanging in the cloud. He is without doubts an advocate for the persistence of morality in the society and so if he questions the superiority of morality over law, then goes ahead in his one system concept of law and morality to stress that law is embedded in morality and it is only an aspect of morality, then can we not perceive this to be hazy? The legal philosopher brings to the dinner table a model of ‘whole and part’ and rejects the whole idea of distinction between law and morality but rather unifies them to be one; hence the whole digest of his manuscript, ‘The one system conception of law and morality’. To crack it a little, to say that law is embedded in morality and unified into one system raises curiosity. Embedded means to be part of or particularly buried in something. If law is part of or partially buried in morality, it then suffices to say that both concepts are still with distinct features – it is likened to a branch and trunk relationship which, according to Baxter, is distinguished based on purposes of identification. With this seeming hazy metaphoric model of whole and part, it is wished Dworkin were alive to make it less confusing. Ronald Dworkin indeed preaches one system and equates law and morality when he said that morality has no veto position over law. Difficulty will arise here because to understand exhaustively what was meant by morality having a zero veto position over law subjects us to the English dictionary which helps, though a little, to stress invocation of certain rights. If we are to say morality has no veto, then we are saying law does not have its position marginalised when looking at the balance of the two concepts as preached unreservedly by Ronald Dworkin. But is morality the whole, and law the part in his ideology? If we followed carefully, the answer is in the affirmative. A child can never be superior to his father and even morality in many parts of the world will not consider it apt to equate a child to his parents. That established, can it be said morality is not superior to law in relation to Ronald Dworkin’s ideology? It appears that morality supersedes law the moment Ronald Dworkin made it a single parent. His persistent legal and moral verbal wars fought against positivist school appear to emasculate the presumed reverenced gigantic throne law is placed. Point made here is that Dworkin – though not a scatterbrain – has an ideology which begs for clarity. But then, the legal philosopher is long part of the ground. Prof. HLA Hart had a different view to this issue however.

Prof. HLA Hart always showed consistency in his belief that law and morality are terms very much disparate. Hart subscribes to the positivist school and is a prominent figure indeed ranging from legal texts and debates such as the famous Hart-Fuller debate. While Hart argued that law and morality were separate, Fuller held for morality as the source of law’s binding power. As we may already know, positivists believe in a separation between the law as it is, and the law as it should be. Legal rights and moral rights are not related beyond mere coincidence – this being their philosophy. Hart, who decided not to grin and bear the theory of Lon Fuller and that of Dworkin, gave his own schema. Hart believes that the method of deciding cases through logic or deduction is not necessarily wrong, just as it is not necessarily right to decide cases according to social or moral aims. He used the problem of the core and the penumbra to illustrate the idea that laws must be related to the meaning of the words, not any natural or moral belief. A core case is one that the statute intended to cover. To splash a classic example, a statute that bans vehicles from a park is obviously intended to cover cars. A penumbra case would be one not considered by the creators of the law, such as the appearance of a skate board in the example given under core. A judge interpreting such a law from a positivist viewpoint would look to a definition of the words in the statute. The natural law view believes that the creation of law should be based on natural laws or common morals.

If there is one thing limpid enough, it is the fact that HLA Hart sees law as a bedrock in which the society secures existence; little wonder he defines law as: “Those rules of conduct on which the existence of society is based and of which its violation tends to invalidate its existence.” His definition is no way scentless and it surely sits at the right hand side of his philosophy. The disparity between Dworkin’s model of whole and part, and that of Hart’s illustration of core and penumbra is that while Dworkin advocates one entity, Hart recognizes no connection between law and morality and with his point not being surreptitious, he pattered down that law is the crux or central idea (core) and morality is out of the scope of law (penumbra). For lovers of scholarly debate, this paper will segue into the sphere of revitalizing interested readers with the position of Patrick Devlin, Prof. Hart, and Dworkin succinctly.

The Hart-Devlin debate focused on the issue of legalising homosexuality and prostitution which was investigated by the Wolfenden Committee headed by Sir John Wolfenden. The report claimed that it was not the duty of the law to concern itself with immorality. It was argued that homosexuality should be decriminalised on the basis of: (a.) Freedom of choice, and (b.) Privacy of morality. For Devlin, law without morality destroys freedom of conscience and is the paved road to tyranny. He appealed to the idea of society’s moral fabric. As far as Devlin is concerned, the criminal law must respect and reinforce the moral norms of society in order to keep social order from unravelling. His position became yet very dulcet when he reasoned that immorality is what every right-minded person considered immoral. For him, there could be no theoretical limit to the reach of law; no acts are any of the law’s business. Before looking at the tablets he prescribed, he 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?” In his guidelines, he hammered that privacy be respected; that law should only intervene when society cannot tolerate certain behaviour; and law should be a minimum and not maximum standard. His point is lucid, but not in entirety. Devlin’s reasoning is that the common morality of the society should not be bastardized and so law should intervene only when the society frowns upon a certain conduct. Maybe Devlin’s definition of society is needed and also, is societies’ views always correct? It thus seems very obscure. To attempt the intent of Devlin upon usage of the word society, there may be need to consider Margaret Thatcher’s explicit declaration that “There is no such thing as society, there are individual men and women and there are families.” A point made or attempted by Thatcher is the question of what constitutes a society if not individuals. Well, if there is anything to take away from her declaration, it would be that society as a word is non-existent but what is prevalent is merely an individual man with his spouse and child coming together to be a family and having their own values which could be distinct from family B – this will not satisfy what Devlin meant by society. A favourable answer is given by Oxford Advanced English Dictionary which views society as a long standing group of people ‘sharing’ cultural aspects such as language, dress, norms, or behaviour and artistic forms. The food yet chewed is whether societal views are always correct.

Hart on the other hand adjured against the dangers of ‘populism’. He believes that most peoples’ view are covered by superstition and prejudice thus making law gain ground in the place of morality in the society. What Dworkin suggests is that we abandon the Hart-Devlin debate and concentrate on liberties. To Dworkin, if a behaviour is a basic liberty (like sex), this should never be taken away, even if someone has a different way of actualising a sexual activity e.g. using a spanner in the vagina of one’s spouse all in the sake of sensation and satisfaction vide R V. Brown. He stressed that general liberty could be restricted if they cause harm. Now the feasible question is how can one tell the difference between a basic liberty and a general liberty? It is wished again that Ronald Dworkin could attempt a response.

OKOCHA OBED

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Author:

My name is Okocha Obed, you can call me Obeezy. I love to display aesthetics through my ink—I must say writing is my small world. I consider myself a deep writer; I say I am deep because I have discovered that part about myself, even, my fabulous audience share same view. I believe in connecting to all kind of persons as there is always something to learn from everyone. I see myself as an actor; to stay on the stage, I need to think ink. The voice is a reflection of myself and my conscience. I always felt I could be like superman while growing up. It was pretty ridiculous so all I did was dream of being a soldier. It was abortive. So I created a world where I could keep talking about the ills in my community but with other flavours to show I am growing into completeness. keep reading.

10 thoughts on “LAW AND MORALITY (1); THE DEBATE

  1. Nice one buddy… I still think that there still exist a nexus between law and morality. In fact, I buy Ronald Dworking ‘s ideas,not without reservations tho.

    Liked by 2 people

  2. Well penned, the beauty of jurisprudence lies in Julius stones definition as “a lawyer’s extraversion…” Law and morality are no doubt close cousins but it is aptly captured in the imagery of fan blades, they must flow alongside each other but there must yet be a distinction between them.

    Liked by 1 person

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