Jurisprudence, Morals, Laws and Obligations

‘It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation.’ Per Lord Chief Justice Coleridge R v Instan [1893] 1 QB at 453. The first part of this statement seems relatively unproblematic; for example, many people may agree that they have a moral obligation to concern themselves in the care of an elderly relation, while accepting that no legal duty compels them to do this.

As it is possible according to Natural Law Theory for man to misinterpret the principles and thus enact an unjust law, that is not a law (see post …) it is equally as likely that man has failed to enact principles that are law. This is however, concerning natural laws as opposed to their human translation which is the subject of the quotation in question. It is the issue of whether, ‘every legal duty is founded on a moral obligation’ that requires close examination and the consideration of a wide ranging philosophical debate, developed over many years, concerning the relationship between law and morality. As with many fields of philosophical enquiry, the discourse on this subject is immense and it would be impossible to effectively investigate all the valid contributions to its development, many of which fall outside the realms of jurisprudence. Wittgenstein’s linguistic approach to philosophy has, for many, drastically affected perception of the discipline and has drawn a line across many of the older debates (See Freeman, 2001: pp 39 – 41 & 864 – 865 Introduction to Jurisprudence. London: Sweet & Maxwell Ltd) (see also Grayling, 2001: pp 126 – 134 Wittgenstein: A Very Short Introduction. Oxford: Oxford University Press). For the most part, this assignment avoids any Wittgensteinian analysis of the separation of law and morality due to how this may detract from the arguments of central legal philosophers. It is therefore necessary to focus on the philosophy that has had a central ro le in drawing a link between law and morality, while equally considering the opposing view; this requires an examination of Natural Law Theory and Legal Positivism. Consideration of the Hart-Fuller See Hart, (1958) 71 Harv. L. Rev. 593-629. See also Fuller (1958) 71 Harv. Law Rev. 630-672 Debate demonstrates how in recent years these opposing schools have found some mutual ground from which to view the problem of law and morality, while still disagreeing on certain key issues.

The ancient The theory has Greek origins; its beginnings can be found in the writings of Plato and Aristotle. Following the Roman conquests the Stoic interpretation of natural law became more universal (see Freeman 2001 op.cit.: 103). theory of Natural Law provides a basis or the presumption that law and morality are inseparable. There are a number of different versions of Natural Law Theory, but central to early interpretation of the doctrineFor example, see Aquinas, Summa Theologica in Freeman 2001 op. cit.: 142 is the teleological view that human society was created with the purpose to attain a certain state of perfection The specific state varies depending on the legal thinker concerned e.g. for Plato it was ‘order’, for Aristotle, ‘justice’, for Aquinas, ‘the common good’, for Augustine, ‘Grace’ and for Finnis, ‘the seven basic goods’ (see Chinhengo 2000 pp17 – 26 in Essential Jurisprudence. London: Cavendish Publishing Ltd.) and that law is an essential mechanism for its achievement. Law arises from a fabric of eternal, immutable and universal moral principles, created by God For theologians e.g. Aquinas and Augustine (see Chinhengo 2000 ibid.: pp 17-26) or implicit in nature For rationalists e.g. Plato and Aristotle (see Chinhengo 2000 op. cit. : pp 17-26). N.B. for Finnis, these moral principles may have come from the individual but he shares with the theologians a strong belief in God (see Freeman 2001 op. cit: 94 – 96)., which may be attained by man through his capacity to reason Cicero defi ned natural law as ‘right reason in agreement with nature’, but it was the Stoics who first drew the link between reason and morality (see Freeman 2001 op. cit: 104). Thus, every legal duty is founded on a moral obligation because any ‘law’ that lacks such a foundation is not a law; ‘lex injusta non est lex’ Translates as, ‘an unjust law is not a law’. However, Aquinas was of the opinion that while we may be under an obligation to disobey certain rules that amount to a ‘perversion of the law’, in most cases this will not be so because the consequences of disobeying an unjust law should be weighed against the threat to social order that such disobedience may cause (see Freeman 2001 op. cit: 107).

This in itself is a contentious issue; it is difficult to see why an immoral principle which has taken on the form of a law and is supported by sanctions usually attached to laws, should be perceived as not actually being a law purely due to its unjust nature. A legal positivist criticism of this is that it confuses the issue of whether the law is a law, with the issue of whether it is a just law See Bentham (ed. Hart 1970) Of Laws in General in Freeman 2001 op. cit: 224.
A main difficulty with the theory is that it seeks to derive normative propositions from factual statements For a positivist criticism of this see Bentham and Hart; if through observation, it is deduced that men act in a certain way, then they in fact ought to act in this way This is perceived as attempting to derive an ‘ought’ from an ‘is’.

This may have evident implications regarding personal liberty; for example, Freeman points out how contraception and gay union may be perceived as immoral (and thus potentially outlawed) on the grounds that men have been observed to reproduce (see Freeman 2001 op. cit: 91). and laws will be enacted to achieving this end.

Legal Positivists see this as confusing descriptive scientific laws with prescriptive moral laws. The Natural Law defence to this returns to the premise that all laws are founded on natural principles and that this includes ‘scientific’ laws. See Aquinas, Summa Theologica (The various types of law) in Freeman 2001 op. cit.: 143 Closer examination of this basic premise is subsequently required; it is necessary to investigate how man may establish that morality is a stable concept, exterior to the biases of human prejudice, upon which he may safely construct, measure and justify human law. At this point certain flaws become apparent.

Consider a law that is based on the moral premise ‘it is wrong to steal’ As may be the case concerning the Theft Act of 1968; see s 1(1) for definition. While a natural law proponent of this law may claim that a higher source of morality exists and that through his reason man is capable of creating moral laws, he would not be able to state that this particular law is morally sound. This would necessitate the premise that through our reason man can judge the morality of this, one law. However, human experience of unjust laws Both past and present demonstrates that man’s reasoning may be fl awed. In the absence of reliable criteria for judging the reasonableness of a particular law Consider the reliability of Finnis’ rather broad criteria (see Finnis, 1980, Natural law and Natural Rights in Freeman 2001 op. cit: 180) and also Fuller’s attempt at providing criteria for the validity of a system through which laws are created, man is unable to state that any law is based on morality. It is therefore not logical to state that all legal duties are founded on moral obligations Of course in this sense the term ‘legal duties’ is pertaining to manmade, as opposed to natural legal duties.. If however we accept this and reach the conclusion that although man has access to a higher source of morality which very possibly underpins some man-made law but that this is of little use to us in our present imperfect state Because we have no way of knowing which laws these are., a further problem arises. Were it to occur that the higher source appeared to us, say in the form of a deity, to properly direct man in the correct interpretation of morality, man may choose to question its reliability As occurred when Jesus appeared to us, purporting to be the son of God.. When faced with opposition Freeman points out that we may have been ‘…created by an evil deity for a malevolent purpose’ (Freeman, 2001, op. cit: 92), Natural lawyers may argue that their reason indicates to them that the deity is good. Yet they may only justify the reliability of their reasoning by arguing that their reasoning is good, having been created by a good deity. The issue of how man may know if a deity is good brings the argument to a circular point.

It has been argued that the goodness of natural law is independent of any good deity (Suarez and Grotius). However this does not provide any extra guidance with the issue of how man may determine that morality exists in the form of natural law, without resorting to metaphysical phenomena.
In his modern restatement of natural law Natural Law and Natural Rights, 1980, Finnis avoids the pitfalls of deriving normative propositions from factual statements by arguing that the concept that moral knowledge may be derived through human observation is an incorrect interpretation of natural law Finnis argues that Aristotle and Aquinas did not derive an ‘ought’ from an ‘is’; his own writings are a reinterpretation of Aquinas. His view that ‘practical understanding’ Finnis may lead man toward that which is self-evidentially good presents the metaphysical difficulties explored in the preceding paragraphs; his belief in the ‘basic value of truth’ Finnis requires a certain trust in metaphysical elements which may be perceived as illogical As with many other natural law thinkers; compare with Locke’s social contractarian view that natural law is ‘writ in the hearts of all mankind’ (in Freeman, 2001, op. cit: 113).
Lon Fuller (1902-1978) takes a different approach to the problem of measuring the morality of law Fuller, The Morality of Law (1958): reproduced in Freeman, 2001, op. cit:157). His definition of law as ‘the purposive enterprise of governing human conduct through rules’ Fuller (1958): ibid: 163 does not depart from the natural law perception of law as a mechanism for steering humankind towards a state of perfection. However, he has argued that it is by examining the system through which a society’s laws are created that it is possible to measure the morality of those laws. Through an investigation of factors that cause a system to be negative, Fuller has provided eight principles which, he claims, a perfect system would follow absolutely: there must be rules; the rules must be published; the rules must be intelligible; the rules must not be contradictory; the rules must not require the impossible; the rules must not change constantly; official conduct must be in accordance with the rules; the rules must not be retrospective.

The extent to which a system conforms to the eight principles will determine the extent to which its laws may be judged as being moral. This is what Fuller has termed ‘the inner morality of law’ Fuller (1958), op. cit: 157. Hart has criticised this theory as amounting to no more than a model for an effective legal system; he compares it to an effective system of poisoning, noting that this would not give the act any moral credence See Hart, The Concept of Law. The arguments put forward by natural lawyers have been highly criticised by legal positivists. Legal positivism views law as a concept distinct from other social phenomena, such as morality. It states that an investigation into the nature of law necessitates first an empirical examination of what law is. This should be followed by a normative study of the extent to which law complies with an excepted standard to which society aspires. This separation of the investigation into the factual content of law from an examination of its moral content, leads legal positivists to conclude that a bad law may still be a valid law See Chinhengo (2000), op. cit: 27. The extent to which law is moral may still be deemed an issue of vital importance; Bentham 1748-1832 and his disciple Austin 1790-1859, two main proponents of legal positivism, were deeply concerned with social reform from a utilitarian perspective.

The latter part of the twentieth century saw an increase in attention to the relationship between law and morality, as purported by natural law theorists. This was in part due to the development of nuclear weapons, awareness of human rights abuses such as those under the South African apartheid regime and the mass genocide carried out in Nazi Germany Other factors include doubts about the epistemology of the empirical sciences and a decline in economic and social stability.

It was in this social and philosophical climate that Hart developed ‘The Concept of Law’ Hart, (1961) The Concept of Law. This extension of legal positivism criticised the earlier writings of Bentham and Austin while forming some links with natural law theory. For Hart, the factual nature of law and its moral virtues remained two, very separate issues; he maintained the view that ‘…laws may be law but too evil to be obeyed’ Hart (1958), Positivism and the Separation of Law and Morals: 71 Harv. L. Rev. pp 593-629: reproduced in Freeman (2001) op. cit: 370 thus echoing earlier positivist assertions that a bad law is still a law.

However, Hart sees justice as a part of morality which bridges the gap between this internal phenomenon and the external concept of law; it is that form of morality which is applied to the interaction of public institutions with individual citizens. This concept of justice is divided into two parts; the first can be described as the idea that the law should be applied with consistency to similar cases. The second part is the ability to identify such similarities and to distinguish cases correctly.

Hart also recognises that law and morality share certain basic common purposes; they are both concerned with organisation of society and the protection of vital human interests. Among these, is the basic interest of human survival. Hart sees this as the minimum content of natural law See Chinhengo (2000) op. cit: 55-58.

In an essay entitled Positivism and the Separation of Law and Morals Hart (1958) op. cit: 367, Hart looks at the issue of law and morality in the light of immoral acts committed under the Nazi regime. A difficulty facing German courts at the end of the Second World War was in finding a way to legitimately convict and thereby punish citizens who had willingly committed highly immoral acts. Many of these acts were entirely legal at the time they were committed, under Nazi law. The overriding authority of natural law was drawn on by the courts to enable convictions in these cases; Hart perceives that such reasoning is flawed.

While accepting the need to punish the perpetrators the morally evil acts, Hart asserts that this should not have been achieved through a declaration that the evil nature of Nazi laws meant that they were not laws at all. He warns of the dangers of over complexity in such ethical situations, where clarity is of vital importance; ‘when we have the ample resources of plain speech we must not present the moral criticism of institutions of propositions of a disputable philosophy’ Hart (1958), op. cit: 370. Hart suggests that in the decisions faced by the German courts, it may have been wiser to introduce retrospective legislation. He sees this as choosing between two evils; the other choice being the endorsement of a highly immoral act. He claims that this would be a more transparent approach, avoiding the misleading idea of a coherent system of rules within which all human values are neatly encompassed and may be called upon to provide a morally perfect answer to each legal dilemma. He claims this is a myth that natural law perpetuates.

In Positivism and Fidelity to Law – a Reply to Professor Hart Fuller (1958) 71 Harv. L. Rev. 630-672, reproduced in Freeman (2001) op. cit: 370, Fuller contends that Hart has failed to appreciate the practical difficulties associated with enacting retrospective legislation in a climate where social unrest necessitated a swift and stable resolution to these legal problems and one that would restore confidence in the system. He claims that a court’s refusal to apply that which it accepts is law would generate more confusion than a simple denial of its legal character.

Fuller observes that Hart’s analysis may be restated as a distinction between order (law) and good order (moral law). This, he claims, helps to show the difficulties faced by Hart in distinguishing between law and moral law. He appears to be saying that if we try to consider law as a neutral mechanism, devoid of intrinsic morality, it becomes apparent that like order, even bad law must contain some quantity of morality, to deem it workable.

Fuller argues that, for its existence, law is reliant upon moral foundations; ‘it is [Hart’s] neglect to analyse the demands of a morality of order that leads him…to treat law as a datum projecting itself into human experience and not as an object of human striving’ Fuller (1958) ibid: 371. Law cannot make itself; as it is apparent that man must strive for order, so it is that human striving plays a principal role in the creation of law. Fuller illustrates the difficulties faced by the conscientious citizen who finds he cannot agree to the legal obligations placed upon him.

In this scenario, as in Nazi Germany, the issue is not the moral nature of laws that were undoubtedly in existence, but rather the degree to which a legal system remained to command obedience. Thus while legal positivism imprisons the citizen within the confines of a potentially corrupt and artificial legal system, natural law allows, through reason, the legitimate disobedience of unacceptable rules. In conclusion, it is easy to see the attractions of equating law with morality. The idea that every legal duty is founded on a moral obligation allows for the removal of the duty, once its foundation is revealed to be immoral. In a world where the atrocities committed under the regimes of Nazi Germany and South African apartheid remind man of its capacity to abuse power, the concept of natural law provides a certain safety net. It does, however, lack the logic and clarity of Legal Positivist arguments and allows weight to be given to essentially subjective moral precepts; this in itself poses certain dangers. It is unlikely that any philosophy can realistically seek to prevent the creation of evil law, but the debates that are generated by these theories helps to increase understanding of the very powerful mechanism of human control that is law.

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