Chapter 3
Law and morality
Is torture wrong? What’s wrong with abortion? Is homosexuality sinful? Moral questions of this kind arise in almost any legal system. And confronting them is among the fundamental characteristics of a free society. Consider the recent landmark decision of the United States Supreme Court declaring that the Constitution guarantees a right to same-sex marriage.
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 (doubtless 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 good 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 or ethical 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 are entitled to ask whether unjust legislation of this kind qualifies as ‘law’ at all. It raises the questions: 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’.
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 procedurally 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, and 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 unhappy tale of a king, Rex, who, to his cost, neglects these eight principles. He fails to make rules at all, deciding questions on an ad hoc basis. He also fails 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, and 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. (Natural law theory is discussed later in this chapter.) The ‘internal morality of law’ is essentially what Fuller calls 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 a key launch pad 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, particularly 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 Fitzjames 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 nub 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. Moreover, 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 may be best dealt with by legislation. In the words of the distinguished judge Lord Reid:
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 similar approach may be required in respect of the vexed question of how a woman’s right to an abortion is to be reconciled with the moral position that regards the foetus as a person with a right to life.
A right to life?
The abortion debate in the United States is a compelling example of how moral questions can polarize a society. Christian groups condemn (occasionally violently) the practice of abortion, regarding it as murder. Feminists, on the other hand, consider the matter to be 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 Dworkin describes 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 (see Figure 6).
6. The United States Supreme Court’s momentous decision in Roe v Wade continues to engender fierce debate especially between feminists and pro-life advocates.
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 also lawful 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 twenty-eight weeks. More recent legislation provides that a pregnancy that has not exceeded twenty-four 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 disabled.
In its quest for a conscientious resolution to this complex issue, each society must appraise its own moral currency (see Box 8). 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 disabled child?
Box 8 Moral inconsistencies?
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
A right to die?
Similar deliberation surrounds the equally daunting issue of euthanasia or ‘mercy killing’. 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 death 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’, and ‘sanctity of life’ are generously deployed in these debates, but the law must develop careful, reflective answers that best serve the public interest (see Box 9). 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.
Box 9 The Dutch approach
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:
Section 293(2) of the Dutch Criminal Code
The English case arose out of a crush that occurred at a football stadium in 1989 (see Chapter 2). Anthony Bland sustained hypoxic brain damage which left him in a PVS. 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, now the Supreme Court) 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 five judges 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 a 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.
There have been other heart-rending cases. Most recently Debbie Purdy, a British woman suffering from primary progressive multiple sclerosis, wished to end her life which the disease had rendered unendurable, but was concerned that if her husband assisted her suicide by accompanying her to a Swiss clinic to die, he might be prosecuted for the offence of aiding or abetting her death. Under the Suicide Act 1961 this carries a maximum sentence of fourteen years’ imprisonment. Her case was eventually heard by the House of Lords, which decided that the failure to clarify how the statute was applied in practice was an infringement of her right to a private and family life under the Human Rights Act. It required the Director of Public Prosecutions to formulate a clear policy specifying the facts and circumstances that will be taken into account in deciding, in a case such as Purdy’s, whether or not to consent to a prosecution under the Suicide Act. Miss Purdy later died in a hospice.
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.
The two problems of live and death coalesced recently in a landmark Irish case which involved a pregnant woman who had been declared clinically dead after suffering a severe head injury. It followed another case in which a woman died after seeking a termination of her pregnancy when she was told she was miscarrying; her request was refused as the foetus was alive and her life appeared not to be in danger. She died of blood poisoning days after miscarrying. The case attracted worldwide publicity, raising questions about the application of the country’s strict abortion law.
In the more recent case the doctors also rejected the pregnant woman’s family’s appeals to turn off her life support; they feared liability for negligence or even murder. By doing so they would also end the life of the foetus. The matter came before the High Court of Ireland which, despite the fact that the Irish constitution protects the right to life, accepted the evidence of seven medical witnesses that the foetus had ‘nothing but distress and death in prospect’. It would not survive even with life support. The court decided that since the mother’s body was increasingly vulnerable to infection, high temperature and blood pressure, and fungus growth, which endangered the life of the unborn child, the life support machine could legally be switched off.
The court recognized that Ireland’s constitutional prohibition of abortion obliges authorities to defend equally the right to life of the mother and the foetus. Where, however, the mother is already dead, the rights of the living foetus ‘must prevail over the feelings of grief and respect for a mother who is no longer living’. The judges left open the possibility that similar cases might be treated differently where the foetus was much closer to birth. The case has led to calls for by pro-choice advocates and some doctors for the repeal of the constitutional provision banning abortion.
Torture
The use of torture to obtain information or as a form of punishment has a long history. From crucifixion to the rack, thumbscrew, and a variety of other inventive medieval contrivances, the cruel infliction of pain has for centuries been a key tool in the hands of inquisitors and even courts. Though the English Bill of Rights of 1689 provides that ‘cruel and unusual punishment’ shall not be inflicted (a provision adopted in the Eighth Amendment to the US Constitution), and is prohibited by a number of declarations: Article 3 of the European Convention on Human Rights, Article 3 of the Geneva Conventions of 1949, Article 7 of the International Covenant on Civil and Political Rights of 1966, and the United Nations Convention Against Torture of 1984, the practice persists in many countries.
Most recently, a controversial US Senate Select Committee on Intelligence reported on the CIA’s Detention and Interrogation Program and its use of various forms of torture (or ‘enhanced interrogation techniques’). It revealed the extent of the CIA’s interrogation and detention programmes, concluding that the agency’s use of torture was both brutal and ineffective, and that the CIA repeatedly lied about its efficacy. The report’s chairwoman claimed that torture ‘regularly resulted in fabricated information’, describing the programme as ‘a stain on our values and on our history’. Former Vice-President Dick Cheney, however, said the report was ‘full of crap’, ‘deeply flawed’, and a ‘terrible piece of work’. He spoke for a number of critics who denounced the document on the grounds that torture of detainees was both necessary and effective in thwarting terrorist attacks.
The so-called ‘war on terror’ launched in the wake of the horror of 11 September 2001, has unleashed a wave of anti-terrorist legislation in several jurisdictions that, in effect, authorizes torture. In 2006 the US enacted the Military Commissions Act which permits the executive to conduct military tribunals of ‘enemy combatants’ and hold them indefinitely without judicial review. Evidence gained through degrading or humiliating treatment would be admissible in the tribunals.
Aside from the precise definition of torture, its legality, or its effectiveness, is it ever morally acceptable (see Box 10)? A common scenario used to justify torture is the so-called ‘ticking time bomb’ hypothesis. Suppose a known terrorist has planted a nuclear bomb that is set to detonate within a few hours, but he refuses to disclose its location. Surely, it is argued, it would be morally wrong not to torture him in order to save the lives of thousands. Is not the torturing of a single individual justified in order to protect the many? An obvious response to this ostensibly compelling claim is its artificiality. This situation has never occurred, and is highly unlikely ever to do so.
Box 10 Justifying torture?
[W]e should stand for a threshold absolutism on torture. We must insist on the wrongfulness of torture, even if we accept that there might be exceptional cases where the wrong may be excused. Consider the intuition that while we might give soldiers in a just war medals and a parade, we should recoil at doing this for torturers … Above all, we must never make such excuses ex ante, as a matter of open law or secret policy, much less make torture permissible in war, where it will indeed metastasize … [V]iolations of such a foundational norm must seek pardon ex post facto, not license ex ante. It may seem paradoxical that the justified may still be wrong, but such paradoxes are a feature of the tragic in the human condition, and we must mark the outer limits of hell as best we can.
Gregory Fried, ‘Review of Uwe Steinhoff, On the Ethics of Torture’
The argument ultimately boils down to disagreement between those of a consequentialist disposition who defend torture where it is the only way to prevent a greater harm, on the one hand, and those who adopt a deontologist view (certain acts are intrinsically right or wrong regardless of their consequences) who believe that torture is always wrong, on the other. But what if the law explicitly authorizes torture? Professor Alan Dershowitz has controversially argued that in the face of extremists who threaten our security, the law ought to provide for torture to be used when it is shown to be the only method by which to avoid serious injury:
The question is not whether some torture would or would not be used in the ticking bomb case—it surely would. The dilemma is whether it would be done openly, pursuant to a previously established legal procedure, or whether it would be done secretly, in violation of existing law. This is the important policy issue about which I have tried to begin a debate: how should a democracy make difficult choice-of-evil decisions in situations for which there is no good resolution?
But the idea of ‘torture warrants’, even when security is threatened, sticks in the throats of civil libertarians who question whether courts of law should be asked to authorize or legitimate a practice that is widely regarded as reprehensible? Ought judges, they ask, to be drawn into questions involving the deliberate infliction of cruelty? There is something to be said for ensuring that in a democratic society the use of torture should be above the ‘radar screen of accountability’ rather than operate in a surreptitious manner beyond the reach of the law. But it is doubtful whether this approach will find favour with those who are expected to administer it—the judges. In the face of the rise of terrorism and the emergence of groups such as Islamic State, these questions are unlikely to go away.
Doing what comes naturally
Moral questions have, of course, engrossed philosophers since Aristotle. Theories of natural law have sought to resolve the conflict between what ‘is’ and what ‘ought’ to be. Its fundamental contention, in simple terms, is that what naturally is, ought to be. What occurs in nature is good; we should seek to pursue it. Reproduction is natural; therefore we ought to create offspring. As Cicero, the Roman lawyer, put it:
True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting. … It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. … [God] is the author of this law, its promulgator, and its enforcing judge.
Contemporary accounts of natural law owe much to the Catholic Church, especially the careful works of the Dominican, St Thomas Aquinas (1225–74), whose principal work Summa Theologiae contains the most comprehensive statement of Christian doctrine on the subject. In 17th-century Europe, the exposition of complete divisions of the law purported to be based on natural law. Hugo de Groot (1583–1645), or Grotius as he is usually called, is associated with the secularization of natural law. In his influential work De Jure Belli ac Pacis, he asserts that even if God did not exist, natural law would have the same content. This was a significant foundation for the emergent discipline of public international law.
The 18th century saw Sir William Blackstone (1723–80) in England proclaiming the significance of natural law in his Commentaries on the Laws of England. Blackstone begins his great work by espousing classical natural law doctrine—as if to consecrate English law by this appeal to God-given principles, an attitude that drew the fire of the utilitarian philosopher and legal and social reformer Jeremy Bentham (1748–1832), who derided natural law as ‘a mere work of the fancy’.
Despite his scorn, natural law has been exploited to justify revolutions—notably the American and the French—on the ground that the law infringed individuals’ natural rights. The American Revolution against British colonial rule was founded on an appeal to the natural rights of all Americans, in the lofty words of the Declaration of Independence of 1776, to ‘life, liberty and the pursuit of happiness’. As the Declaration puts it, ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights.’ Equally rousing sentiments were included in the French Déclaration des Droits de l’Homme et du Citoyen of 26 August 1789, which refers to the ‘natural rights’ of mankind.
And natural law theory implicitly underpinned the Nuremberg war trials of Nazi officials, which established the principle that certain acts constituted ‘crimes against humanity’ even if at the time they were committed they did not violate particular provisions of the positive law. The judges in these trials did not appeal explicitly to natural law theory, but their judgments exemplify an acknowledgement of the idea that the law is not the exclusive measure of right and wrong.
Our epoch is one of growing public accountability. Or, more precisely, we now seek to indict the perpetrators of genocide and other crimes against humanity, and the impunity enjoyed by malevolent government officials, their collaborators, and military commanders is gradually being eroded. The recent establishment of the International Criminal Court at The Hague is a remarkable recognition that evil dictators and their henchmen should not be allowed go scot-free. Although the current United States administration has set its face against the court (principally because of fears both that it would undermine US sovereignty over judicial matters relating to American subjects and because its troops might face prosecution), this could change in the future. The court’s jurisdiction is confined to ‘the most serious crimes of concern to the international community as a whole’. This includes crimes against humanity, genocide, war crimes, and crimes of aggression.
At the time of writing the court has nine cases under investigation, all in Africa. It has charged thirty-six individuals and issued arrest warrants for another twenty-eight. Proceedings against twenty-five are currently proceeding.
Human rights
No serious analysis of law and morals can be conducted without reference to the concept of human rights. Ever since 1215 when Magna Carta proclaimed the importance of individual liberty, the legal systems of democratic societies subscribe, to a greater or lesser extent, to the rule of law (discussed in Chapter 1) which embodies the notion of individual rights. Nowadays moral claims are frequently transformed into moral rights: individuals assert their rights to a whole range of goods, including life, work, health, education, and housing. Peoples assert their right to self-determination, sovereignty, and free trade.
In the legal context, rights have acquired significance so profound that they are sometimes regarded as synonymous with law itself. Declarations of political rights are often perceived as the trademark of contemporary democratic statehood. And the inevitable clash between rival rights is among the distinctive features of a liberal society.
On the international front, a panoply of human rights conventions and declarations attest to the strength of rights talk. The United Nations Universal Declaration of Human Rights of 1948, and the International Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights in 1976, reveal, at least in theory, a dedication by the international community to the universal conception and protection of human rights. It demonstrates a remarkable degree of cross-cultural accord among nations.
In a world increasingly threatened by terrorism, there is a delicate conflict between freedom and security, a subject upon which I reflect in Chapter 6.