For many years, policy-makers and citizens have heard that law-making is very different to soul-moulding. Law, it is said, should say nothing about moral questions. It should essentially leave people free to make their own moral decisions.
An associated debate concerns using legal coercion to deter people from making particular choices. Few disagree, for example, that pornography demeans the dignity of those posing. More contentious is whether the law ought to forbid people from purchasing this literature. Some regard such laws as inherently unjust because they are perceived to constitute illegitimate intrusion upon human autonomy.
Thus, we see that measures resulting in the liberalisation of the law’s treatment of controversial matters such as abortion and euthanasia are rarely advanced on the grounds that, for example, pornography somehow contributes to human flourishing. Invariably, proponents of such laws say that while they “personally” regard production of pornography as immoral, they think that the law should leave decisions about whether to produce pornography to people’s consciences, precisely because these are moral issues, and the law ought to be as “non-moral” as possible.
Such lines of reasoning, in my view, have never been especially convincing. This much becomes apparent when we think about why law prohibits something like murder. No society forbids murder on the basis that life in a community that permitted murder would be dangerous. Murder is proscribed in every society at least partly because it is regarded as morally outrageous. Likewise, when we prosecute people for theft, we do not do so simply because we regard stealing as producing inefficiency. We do so because we recognise that unjustly taking another’s property is immoral.
We can, of course, argue about the prudence of prohibiting certain acts commonly regarded as immoral. There are compelling reasons that may lead us to tolerate - as opposed to accept or endorse - certain acts that foster people’s moral disintegration. No doubt the law could seek to protect the good of truth by forbidding all forms of lying. Yet prudence suggests that outlawing all forms of lying would necessitate an all-pervasive state apparatus to enforce such a law. Hence we prudentially limit law to banning lying in matters such as contracts and leave it to others to discourage lying in other contexts.
The problem, however, with the proposition that law ought to refrain from immoral acts is that it is a self-refuting claim. In other words, the assertion that we ought not to “legislate morality” is in itself a moral claim that in turn shapes the character of law. It assumes that there is something morally wrong with viewing law as one means of fostering an environment that encourages people to make one choice rather than another: to not kill innocent life, for example, rather than to kill. To claim that we ought not impose rules based on any one moral claim upon others is, in fact, to propose a view of the good.
The other self-refuting claim of such propositions is that they implicitly assume that human autonomy is a morally good thing. Appeals to autonomy, in this context, function as a type of trump card: the unspoken good that almost always overrides other considerations. Needless to say, this is not a morally-neutral position. As the American liberal scholar William Galston notes, “Every contemporary liberal theory that begins by promising to do without a substantive theory of the good ends by betraying that promise”.
Law’s intrinsic moral dimension also comes out when we realise that something like rule of law is not a morally-neutral concept. Rule of law is commonly regarded as describing a variety of requirements in the law’s application that must be met if such an application is to be considered just. Such principles of natural justice normally include the following characteristics:
- rules are promulgated, and are clear and coherent with respect to each other;
- rules are prospective rather than retroactive, and not impossible to comply with;
- rules are sufficiently stable to allow people to be guided by their knowledge of the content of the rules;
- those charged with the authority to make and administer rules are accountable for their own compliance with the rules, and administer the law consistently; and
- there is a recognised division of responsibility in administering the law - no one can, for example, be simultaneously judge, prosecutor, and public defender.
A law can thus be said to treat its subjects seriously when it is promulgated, clear, general and stable. When a law fails to meet these criteria, rule of law degenerates into “rule of men”. An example might be the inconsistent application of the sanctions attached to a law because of a judge’s arbitrary whim.
But if a legal system is to be just, then laws need to be more than simply stable and applied consistently. One can, for example, have stable anti-Semitic, anti-black, or anti-Christian laws that are stable and applied consistently by non-corrupt judges. If rule of law is thus to be just and therefore moral, it evidently requires more solid grounding.
It was the medieval theologian, Thomas Aquinas, who first stated that the rule of law is “not the rule of men.” By “rule of law”, Aquinas did not primarily mean that those charged with administering the law simply upheld established rules consistently. Rule of law was, for Aquinas, a matter of acting according to reason: that is, according to precepts that resulted from man’s rational will rather than our feelings. Rule of law does not therefore mean that magistrates are forbidden to exercise their reason when making decisions.
This attention to moral reasonableness is central to the rule of law. This becomes even more apparent when we think about why we normally object to totalitarian regimes. When people object to tyrannical regimes, they are not objecting to law per se. They are objecting to coercive power being arbitrarily constituted, and therefore immorally exercised. The very idea of the rule of law is partly derived from the conclusion that it is reasonable and morally good to limit arbitrary power. Rule of law thus contains a distinct inner morality insofar as arbitrariness is understood to be morally unreasonable.
In his 1961 book, The Concept of Law, H.L.A. Hart pointed out that a legal order can highly respect liberty and still be deeply destructive of other dimensions of human existence. The making of law in a free society is a difficult task. But if we understand the inner logic of law correctly, we should quickly dismiss the argument that law ought to be an essentially “amoral institution”. Moreover, we ought to remember that if law is forbidden from speaking about the basic morality or immorality of certain actions, then individuals and even entire societies can easily slip into the dangerous habit of believing that the law should be whatever the strongest want it to be. And that is the road to tyranny.