The Rt Revd Lord Harries of Pentregarth, Gresham Professor of Divinity
Both the words 'Law' and 'morality' tend, sadly, to have very immediately misleading associations in our society. Too often morality brings to mind simply sexual morality, whilst the concept of law is limited to the set of rules needed to help society function. I hope to show that from a Christian point of view both words have a much wider and deeper resonance, and, although not identical, belong together in a fundamental way.
The modern debate about the relationship between law and morality began with the publication of the Wolfenden Report in 1957. At that time all homosexual acts were criminal. The report recommended that consenting acts between adults in private should no longer be a criminal offence. This was accepted by Parliament, and the subsequent change in the law helped to bring about one of the most significant and lasting changes in our society about morality and its relation to legislation. The recommendation has two key clauses. First, what was decriminalized was 'consenting acts between adults'. In other words acts involving minors or those who are vulnerable in some way and therefore not able to give informed consent, remains an offence. This emphasis on informed consent, has been a key consideration on a whole range of issues and is currently, one of the most fundamental of our current values. Secondly, the acts must be 'in private'. Consenting sexual acts in public would be offensive to most people, and they therefore remain an offence.
A fundamental assumption of this recommendation is that it is not the duty of the state to impose a particular moral code on society. Morals must be left to individual choice. The state is concerned with what is public and outward, and which therefore impinges on other people. It does not police people's private lives if those lives do not interfere with the legitimate freedom of others.
It is important to note that this assumption, which has been so decisive for the society in which we now live , is fundamentally different from that which still prevails in many parts of the world and which prevailed in the West until the 1960's. The Muslim world, for example, is governed on the basis that there is one revealed law, Shariah, which governs everything in society. There is little separation of the private and the public. Although in the Christian West in earlier centuries, the understanding of law was not so unified, for there was a canonical law for the church, and positive law for the state, that positive law was not a value free sphere. On the contrary it expressed basic Christian moral norms which were applicable in what we would regard as private life, as well as public.
The Wolfenden recommendations did not come out of the blue but represent a strand in philosophical thinking that had been gathering momentum ever since the time of John Stuart Mill in the 19th century. Mill said 'The only purpose for which power can rightly be exercised over any member of a civilized community against his will is to prevent harm to others.' But this immediately poses a question. What constitutes harm? Physical hurt is not the only form of harm. Race relations legislation recognises that people can be harmed in other ways. Many would say that an environment in which children can have easy access to pornography is certainly harmful-and this is reflected now in the banning of certain kinds of film on TV, and of other kinds before the 9 pm watershed.
Similarly, when the Wolfenden report says that the function of the law is 'to preserve public order and decency, to protect the citizens from what is offensive or injurious and to provide sufficient safeguards against exploitation and corruption of others' almost ever word here, decency, offensive, and corruption begs the question of what is meant by them. And when we explore what is meant by them, moral values will be part of the discussion.
Before that, however, let us explore what might be the basis of law in the first place. Laws are enacted by governments, and before that by rulers. But this in itself cannot be the basis of a moral authority for the law, because often in history, and still now, rulers and governments enact laws that are manifestly unjust. In the light of justice such laws have later been repealed. It makes no difference whether the laws have been enacted by democratic process or not, the principle still holds, because even democratically elected governments can bring about laws that are later seen to be discriminatory against certain sections of the population. It was not long ago that the laws of this country forbad certain categories of people from voting, Catholics, women, men without property and so on. Indeed law in a democratic society is in a continuous process of revision. So, in short, there is something beyond law itself, in the light of which we measure and revise laws. Rooted in our sense of what is fair or just, we grope to express what this something beyond might be. For traditional religious believers it was and is the moral law or moral order.
A good example of the function and necessity of this can be seen in relation to International Human Rights Law. This is a huge achievement, largely dating from the aftermath of World War II. There is now a universal legal benchmark on human rights. But even here, there is something more involved than law. For some countries have not adopted the international covenants-even so, if they act in breach of them we still regard them as violating some fundamental standard. Furthermore, as with domestic law, international law is always open to revision and improvement in the light of a more refined sense of what is fundamentally right. Earlier thinkers, both Roman and Christian, made a distinction between ius gentium and ius naturale-roughly speaking a distinction between agreements actually in place between nations and the natural law in the light of which all just agreements would be rooted. This preamble now sets the scene for the next section.
For I want now to set out the great mediaeval vision of law, fully articulated by Thomas Aquinas, and remaining in essentials the understanding of it still held by the Catholic Church. It provides a series of contrasts with the very limited, thin understanding of law held by most moderns. From a Catholic perspective law originates in the eternal law of God. It is an expression of the Divine wisdom designed to bring about human virtue and endless beatitude. This law is reflected first of all in the natural law, the morality which is basic to human life in community and which is graspable by the human reason. This natural law takes effect in the civil law of the state and also the law of the church, canon law, with which I am not concerned now. Civil law is derived from natural law in two ways. One,'drawn deductively like conclusions from premises'. For example, from natural law we have the general principle that we are not to harm others. This is drawn to its logical conclusion in the law that forbids murder. Secondly, civil legislation is related to natural law as general directions receiving detailed application. For example, natural law lays down that crimes are to be punished, but the exact penalty is left to human judgement. So in the light of this let us look at some of the contrasts with our meager modern concept.
First, law originates in the Eternal mind. It is not simply a human construct.
Secondly, it has an objective reality. It is not simply a question of each individual human being deciding that some things are right and others wrong, with one opinion being as good as another.
Thirdly, it is rational, designed to indicate what will bring about good consequences and avoid harmful ones. It is not just about command and obedience, feelings of obligation and duty, though these are of course involved. It is as it were a rational design for right living and happiness, if we could but see it. It is the rational way to achieve a proper end, the common good of humanity. In the old Book of Common Prayer, just before Christmas, there appears in italics the words 'O Sapientia'. It indicates the beginning of the Advent antiphons which were said in the days leading up to Christmas. O Sapientia reads:
O wisdom, coming forth from the mouth of the Most High,
It sums up I think something of the this vision of law-it is first of all wisdom, it orders all things sweetly, and it takes root in our lives in the form of prudence, the cardinal virtue or hinge on which all other virtues depend, in that it enables us to balance the many claims upon us.
Fourthly, as the phrase natural law indicates and as that antiphon brings out, it goes wider than what we think of as morality to embrace the laws of nature and aesthetics. There is a wonderful poem by Boethius, the 6thcentury philosopher, who expresses this beautifully.
Contrast that with a very familiar modern view that says, of course we need laws to live any kind of life, but these are entirely a matter of human contrivance. Morality is up to each individual, and provided you keep within the law you can do what you want. For Boethius, the Divine ordering embraces nature, beauty and morality. The love that rules the stars is also there to rule our hearts-a line quoted later by Dante.
I am not suggesting that the view of law of Thomas Aquinas can stand today without qualification. One fallacy, which has led the Roman Catholic church into a great deal of trouble over artificial contraception, is the notion that natural law is discovered simply by reading off what happens in nature-in nature sexual intercourse brings about children, and this is therefore obligatory for us to always keep this possibility open. But, I would suggest, what is natural for us human beings is not simply letting nature run its course but using our God-given human minds by working in relation to nature, for our own and the common good.
The concept of a natural order, or intrinsic moral order in the universe, that can be grasped by rational minds, has been criticized from a number of different points of view. Some of the 16th century reformers and their descendents have rejected the whole idea, on the grounds that it fails to do justice to the fact that the human race is fallen, its mind darkened and it is therefore incapable of properly grasping what is right or wrong. However, we only have to look at St Paul to see how mistaken that view is. Paul writes:
When gentiles who do not possess the law (that is, the Jewish Torah, or revealed law of God) carry out its precepts by the light of nature, then, although they have no law, they are their own law; they show that what the law requires is inscribed on their hearts, and to this their conscience gives supporting witness, since their own thoughts argue the case, something against them, sometimes even fore them. (Romans 2, 14-15)
The concept of natural law, or a moral order that is objective and universal has also been much critiqued from a philosophical point of view. In the light of this it is clear that some of the assumption behind the old concept of natural law cannot stand, but in essentials I would still want to defend it.[2] The essential point is that by virtue of being human we have some capacity for moral discernment.
The concept of law itself has also been critiqued from a Marxist point of view. Marx said that:
Legislation, whether political or civil, never does more than proclaim, express in words, the will of economic relations.[3]
Now there is clearly a great deal of truth in that. Law in history has been class based, reflecting first the interests of the aristocracy, and then later the interests of the rising bourgeoisie. You only have to look at the history of Trade Union legislation and the decisions of the courts at the beginning of the 20th century to see the extent of the class bias. So law as we have it, as Marx said, will always to some extent reflect the economic and power realities in the society of that time. For Marx this would only be done away with in a truly communist society. For a Christian, it means that all human laws are always subject to revision and improvement by a higher justice. There is no utopia on this earth. Even the best society will provide only an approximation to some ultimate goal beyond our conceiving. But this underlines the importance of the concept of a moral order, higher than even the best laws, in the light of which all must be open to scrutiny and where appropriate, improvement.
Nevertheless, that having been said, I would not want to oversimplify the issue of a natural moral order. Take for example, the issue of abortion. Now there are some who say 'I think abortion is wrong, but I respect the fact that this is a democratic society which has decided to allow it in some circumstances. I would never have one myself, but I agree that those who want one and who meet the legal criteria should be allowed to do so.' That, you might think, is a position which is relatively unproblematic. However, according the Roman Catholic Church, abortion is contrary to natural law. In short it is murder. In no way is it possible to respect or accept a decision which allows for it, even if the decision is a democratic one. It is because of this that Roman Catholic politicians in America have such difficulty with their church. Those who are personally opposed, but accept the fact that the law in America allows abortion have been excommunicated or threatened with excommunication by their church. The same situation would arise if euthanasia was legalized either there or in this country.
The first point to draw out of this discussion so far, despite the difficulties just described, is that there is an integral connection between law and morality. They are not co-terminus, as I will show, but they are integrally related. In essence the fundamental rules which hold our society together, and which we have an obligation to obey, are rooted in moral values and express a moral vision of what it is to be a human being in society. Nothing human is value free, no institution, no work of art, no law. Whether we are aware of it or not, it will reflect the values of the person or community of which it is a part. There is no such thing as a value free society. The question is: what are its assumptions and presuppositions, and what are the values that lie hidden in them.
A few years ago there was a very famous debate on this subject between the Oxford philosopher, Herbert Hart and a learned law lord, Lord Devlin. Professor Hart argued along the lines of Wolfenden that it is no business of the law to enforce morality, Lord Devlin argued that law actually has morality built into it. In fact however, both positions need to be qualified. For Hart also believed that in some sense a 'shared morality' is essential to any society, and he called for a recognition of 'the minimum content of natural law', that is, the recognition of certain universal values upon which the law of every society is based. Yet the application of even allegedly universal values is controversial in some respects. The principle of the sanctity of life makes murder a crime. But its application to abortion or euthanasia depends very much on the views of life of the people concerned, views which will usually be rooted in religion as much as morality. There are some very testing issues here for those who are not in sympathy with modern laws which permit actions they regard as immoral.
Devlin argued that the Christian view of marriage, i.e. monogamy has got built into our law. 'It got there because is Christian, but it remains there because it is built into the house in which we live and could not be removed without bringing it down.' Further, whether or not people are Christians people are bound to it because 'it has been adopted by the society in which he lives.' What this vivid analogy does not spell out is the obvious point that houses can be adapted and extended. The dramatic example of this in recent years has of course been the legislation on civil partnerships. In order to deflect criticism the government kept saying that civil partnerships are not marriages-but in fact they reflect clause by clause the legislation on marriage. The house of marriage has had an extension. But suppose the character of our society so changed that there was a general push to legalise polygamy, or to avoid charges of sexism, polyandry? That would be a very dramatic change, and would I suppose be equivalent to virtually demolishing the house with a view to building a new one in its place-but, however unlikely in practice, it is theoretically conceivable.
What this means is that the fundamental laws which bind a society together will be rooted in moral principles. Their application in practice may give rise to strong disagreements, and laws can and do change to reflect the moral vision of the society in which they are made. Nevertheless, it is still a moral vision they reflect. The law allowing for civil partnerships was passionately argued for on moral grounds, not just as a matter of expediency.
A few years ago I was a member of the Home Office Policy Committee for the Reform of the Law on Sexual Offences. We had a range of issues to deal with including prostitution, soliciting, living on the immoral earnings, brothels and bestiality. This was in the 1980's and all the members were basically working on the Wolfenden assumption that the law should not try to enforce morality, and that the law was by implication morally neutral. But here we need to be careful, for these two assumptions are not quite synonymous. Although myself sharing the first assumption that the law should not in most cases try to act as a moral policeman, I found myself questioning the second assumption that the law either is or should be totally morally neutral. Take the case of prostitution. Acts of prostitution, that is, offering sex for money, are not in themselves a criminal offence-but a number of other activities associated with prostitution such as pimping, soliciting, keeping brothels are. Take soliciting. If it is not illegal to be a prostitute, why should it be illegal to solicit for business? We allow soliciting for all other kinds of things. The law makes it illegal because of the 'nuisance' effect and because it is 'offensive' but as Professor Basil Mitchell has written:
The mere fact that people are being accosted is not enough to give offence. One is not 'offended' by a pavement artist seeking alms or by a child demanding a penny for the guy. The offence is associated with the knowledge that the soliciting is being done with a view to prostitution and it would not be objected to, or would be objected to very much less, if prostitution were regarded as morally acceptable. An innocent who had no idea what these women were doing would not be offended.?
This is one of a number of cases where it is reasonable to suppose that the law is guided by a variety of considerations. The prevention of offence is certainly the principal one, but it is not wholly independent of the moral assessment of the offending acts.
The issue came home to me even more sharply when we were considering bestiality, sexual relationships with animals. Buggery with animals was an offence under the 1956 Sexual Offences Act carrying a maximum sentence of life imprisonment. We were all agreed that the penalties at that time were draconian and needed to be much lighter. But the majority of the committee wanted the offence abolished altogether. They argued that if there was hurt to the animals involved then people would be caught under the act which forbids cruelty to animals. But it struck me then and continues to do so, that there is something fundamentally contrary to the dignity of what it is to be a human being to have sexual relationships with animals, and it is perfectly proper for the law to reflect this reaction. In short, the law is not simply about the consequences of acts and whether they harm others, but it enshrines a society's view of what it is to be a human being, and it therefore does criminalize acts that are an affront to that proper dignity.
One of the reasons why our society has I think got things wrong on these issues is because since the 17th century there has been such an over-individualistic understanding of what it is to be a human being. This atomistic view forgets that we only become and remain persons in relation to other persons. Mind is a social reality. We are essentially, and not just optionally, always persons in community. Therefore when we are thinking about morality, it is quite one sided simply to think of this as a matter of individual choice. We are all the product of and shaped by human communities and our very existence as human persons is bound up with such communities. It is right to be concerned with the moral values of those communities as expressed in its public institutions and laws as it is about the moral judgments of the individuals who are members of it.
Yet, I would still line up on the liberal side on most issues, and this is because in our society we rightly place very great value on the importance of individual choice. People should be given the maximum freedom to make their own choices. So there are two views here. One says that the law is morally neutral, and that morality is a matter of private judgement. I say that the law is not morally neutral. It reflects a particular set of moral values, one imparted to it by the religion and history of the society whose law it is. This is not static, but continually evolving. Nevertheless it will still be rooted in certain moral assumptions and presuppositions. At the same time the society in which we live rightly accords the maximum worth to a particular value, that of individual freedom of choice. On a range of issues it will be a matter of balancing the moral assumptions of the society with this freedom. In relation to prostitution, the balance comes down in favour of not criminalizing acts of prostitution in themselves but doing so in relation to a range of activities that are associated with prostitution, such as soliciting, pimping and keeping a brothel.
That having been said, morality clearly goes deeper and beyond the law in a number of respects. First, not everything we regard as wrong is a criminal offence. Aquinas asks 'Is it it business of the law to restrain all vice?' And gives the answer 'No'. This is because the law has to take into account the actual capacities of most human beings and most of us are of a pretty middling moral disposition. If the law tried to control every aspect of human life we would find it intolerable. The law should confine itself to what is necessary for the stability and cohesion of society. So it forbids only those grave vices, which decent people will want to avoid anyway. 'Which the average man can avoid, and chiefly those which do harm to others and have to be stopped if human society is to be maintained, such as murder, theft and so forth.'
So the law does not criminalize every vice, nor according to Aquinas does it prescribe acts of all the virtues. It is concerned only with those virtues that make for the common good. The moral law covers all the virtues, but civil law is limited to what enables society to function. A good example is that of lying. Lying is immoral but the law is concerned only with those lies which impinge on our life together, such as perjury. A man who lies to his wife is immoral. If he lies in court he is both immoral and a criminal.
A different but related reason why the scope of the law is limited, is that law has to be enforced to be any use. If it cannot be enforced, then it is not only useless, but it brings the law itself into disrepute. We might give an example of the prohibition laws against alcohol in the United States in the 20th century, which were eventually repealed. A contemporary example is legislation in relation to prostitution. There are various laws which try to mitigate the worst evils associated with prostitution but the act of prostitution itself, that is, selling sex for money, is not a crime-probably on the grounds that such a law could not be enforced.
T.S. Eliot wrote a once famous book called The Idea of a Christian Society. He did not assume that everyone in such a society would be believing Christians. But he did think that Christians within it would be influential in it, shaping its ethos. He said:
The Christian can be satisfied with nothing less than a Christian organization of society-which is not the same thing as a society consisting exclusively of devout Christians. It would be a society in which the natural end of man-virtue and well-being in community-is acknowledged for all, and the supernatural end-beatitude-for those who have the eyes to see it.[4]
Although that kind of view is not in fashion it is still worth thinking about. Is what he calls, the natural end of man-virtue and well-being in community-a goal around which even our multi-faith society could unite? I believe it is worth testing out. If it is a society in which there is religious freedom, then the supernatural end of man-beatitude-would of course be an option for those who have eyes to see it.
That natural end, virtue and well-being in community, does I think depend on a much deeper and richer concept of both law and morality than we have in our society at the moment, and I think that we need to draw again on the deep wells of traditional Christian thinking on this subject. It is true that there is a strong move today in some quarters to get away from simply measuring the G.N.P. of a country to consider questions of happiness and well being. However, the natural end of human life is not simply well-being but virtue, and not just individual well being but well-being in community.
I suggested at the beginning of this chapter that what bedevils this whole subject is a narrow stereotypical understanding of morality and a very narrow, pragmatic view of law. I had a sad experience of the former when some years ago I helped mount a conference at Cumberland Lodge on morality and soap operas. I was fortunate in being able to attract some distinguished writers and producers, but failed to get across the message that morality was not primarily about who was having or not having sex. What I wanted people to reflect on were the fundamental assumptions and presuppositions behind the story lines. For, whether we are aware of it or not, these will carry a moral vision. In fact the moral vision expressed in some soap operas has some strong elements, such as tolerance. It is not a question of thinking about morality in order to judge, but in order to be clear about what we are doing. These needs to be stressed in order to take on board the fact that morality, or a moral vision is fundamental to law in all its aspects.
In the international sphere, for example, the idea of human rights is first of all a moral concept.[5] It can and does and should wherever possible take legal form, but still the moral imperative is prior. It is this which enables human rights legislation to be scrutinized and improved. It is this which enables us to judge certain actions as violations of human rights, even though there may be no law in place.
The importance of this moral dimension was brought dramatically to the fore in the recent exposure of expenses being claimed by Members of Parliament. There are a number of elements to this.
First, we have to go back to the origin of the problem. This was the failure of governments, of different political complexions, to raise the pay of members of parliament to something roughly equivalent to what many of them might expect to earn outside. This failure was of course because they feared that we, the public, would not stand it. By many standards of course MPs are very well paid, but the fact is that in a competitive market they could earn more outside. So there was a failure by government and the public to face up to realities.
Secondly, as a result of this, it appears to have been implied that generous expenses would be allowable for second homes and the expenses associated with them. So the result of a failure to face reality resulted in a subterfuge that lent itself to dishonesty.
Thirdly, the office charged with administering expenses, under the Speaker, seems to have told people they can claim for more or less what they want. This, again, is a disgraceful abuse of a system that is in stark contrast to the kind of scrutiny that the Inland Revenue would expect to bring to bear.
Fourthly, within this overall climate it appears that some claims were downright illegal.
Fifthly, within the total spectrum of revelations there is a clear distinction to be made between those who acted in a criminal manner, those who stayed within the letter of the law but who by any ordinary reckoning were grossly dishonest, those who pushed the limits of what was thought to be legal beyond what most ordinary people would regard as justified, and those whose expense claims were modest and entirely justified. What happened of course was that they all, as it were, put up their hands, and said, 'Yes, we know the system is wrong, and we must change it.' but this corporate putting up of hands has blurred the fact that there were those huge differences in behaviour that I have just outlined. Whilst it is true that some MPs have resigned or said that they are not going to stand at the next election or have agreed to pay back some money (is that good enough')-there has been some blurring of individual responsibility, with the general smearing of parliament as a whole. The prophet Ezekiel warned humanity more that 2500 years ago that we are individually responsible, and we cannot hide ourselves behind an appeal to corporate responsibility. Furthermore, this general smearing of MPs is highly detrimental to our national life. A respected and effective parliament is crucial to our society, and the fact that members of parliament are held in low esteem by the general public is unhealthy.
Sixthly, this scandal reveals a moral climate in which people are guided only by what they think is legal, with what is legal being pushed as far as it can, without any thought as to whether it is also honest. For whilst the legal is underpinned by the ethical, what is ethical goes far wider and deeper. The defence of MPs time and again was that they had done nothing illegal. Perhaps they hadn't: but what they had done certainly seemed morally unjustified to most of the rest of the population. In this respect the moral climate of parliament is no different from that of the rest of society. For in recent decades so much of society has been characterized by such an attitude, with the only question being asked as to whether something is within the law.
There are now some signs of a reaction against this. As far as the market economy is concerned, for example, its most thoughtful advocates have always argued that it depends on a moral foundation for its success. This has recently been re-iterated for example by the Reith Lecturer, Professor Sandel, by Stephen Green, the banker (who is also a Church of England Priest) in his book Markets and Morals, and by the Pope in his latest encyclical, Caritas in Veritate, who argue that the market must be seen in a wider moral, and indeed theological framework. In the field of financial regulation, the best companies have always taken the view that the law is not enough, but the ethos, or moral milieu in which people work is even more important. It is not just a question of what is permissible but what is honourable. Indeed where has the whole concept of honour gone in our society? And honour does not exist in isolation, it is part of and arises out of a community characterized by values which everyone is expected to uphold. This is a view that has been championed by some moral philosophers in recent years in the form of virtue ethics-and it was interesting that Clifford Longley in his 'Thought for the Day' this Monday was arguing for this against the view that all that mattered was obeying some law. As the phrase Virtue Ethics implies, this is a view that places most stress upon the formation of character, with the assumption being that if we have a character shaped by the virtues we will be more likely to make right decisions.
As I said, there are some signs of a reaction against what has been the prevailing attitude in our society for some decades now. Perhaps the most telling example is in this year's Reith Lectures by Professor Sandel, whose philosophy lectures at Harvard attract 1000 students a time. He cites as just one example of the point he is making, what happened in Germany when someone advertised for someone willing to be cooked and eaten. 200 people answered the advert, 4 people were interviewed and one person was chosen. He was duly cooked and eaten. What the police found was that the perpetrator could not be charged with murder, though he was eventually tried under another heading. The point is that the action was fully consensual, the person wanted to be cooked and eaten. But most of us would say that we did not want to belong to a society in which such actions were tolerated. It deeply offends our sense of what it is to be a human being in community. That is to imply a certain kind of behavior that is proper to being a human being. It assumes a moral vision. This is a theme to which I will return in my last lecture on human identity, entitled 'Who do we think we are?'
What this analysis reveals is that a moral dimension goes through every aspect of life. But in particular it shows that what is legal is not enough. There is a moral law as well as human legislation. In many others spheres also it has been realized that the letter of the law is not enough, for example in financial regulation. The best companies seek to create an ethos or moral milieu in which the right thing is done, not one in which people push their luck as far as they can stretch the law. What this also brings out is that some institutions are now amongst the major carriers of values in our society, the professional associations, the best companies, the best schools. They have a major challenge in trying to create an ethos in which certain forms of behaviour are expected, because they are operating in a moral climate that believes keeping within the law is all that matters. Good laws express a moral vision, but they do not contain it. The moral vision goes wider and deeper and, for a Christian is ultimately grounded in the wisdom of God.