We all know what it means to break the law. It is perhaps the most fundamental fact governing our social behaviour that we understand the constraints and the pressures to stay within the law and the consequences of not doing so. The law is pervasive, controlling our lives in many more ways than we are usually aware; nevertheless, in most commonplace situations we have a fairly accurate knowledge of what the law requires and what it forbids. In those grey areas in which this is not clear, you might seek legal advice about your rights and obligations. In such situations, one thing you are unlikely to ask of a solicitor is where the law comes from, or, for that matter, why you should obey it; such questions would be quite inappropriate. These, however, are among the fundamental questions about the law. What exactly is the law? What does legal validity mean? What is a legal system? What is the ‘rule of law’? These questions have been asked by legal philosophers since the first appearance of civilised legal systems, and the variation in answers has been of practical as well as theoretical significance. The purpose of this first chapter is to introduce the main points of disagreement on these questions and to explain some central strands of traditional approaches to an understanding of the meaning of law.
The issue that stands behind nearly every controversy in contemporary legal theory is the problem of how law is to be understood in relation to moral values. A distinctively modern claim that any student of the subject will encounter almost immediately is the insistence that a systematic and rigorous analysis of the law requires ‘the separation of law and morality’. This is frequently referred to as ‘the separation thesis’, and it is generally held to be the defining characteristic of legal positivism. Despite its apparent clarity, this thesis has been the source of much confusion and dispute. What does it mean to say that the law and morality are separate, that the law is one thing and morality is another? Before we proceed with the analysis of the various perspectives on law, it will be helpful to consider some ways in which law and morality appear to intersect and overlap, and other ways in which they clearly diverge.
Within the present-day common law jurisdictions, there is a general expectation that the written law and legal judgement will at least roughly approximate to prevailing moral values and moral judgements. A victim of a fraudulent contract or a libel, for example, seeks legal redress in the expectation that the court will adjudicate in the same manner as would any fair-minded individual independently of the legal context. In this respect, it seems that morality and the law have a common purpose. Similarly, the system of criminal justice is expected to reflect popular norms of approval and disapproval. The primary function of the criminal law is commonly taken to be the protection of people from those who threaten or violate the interests of others. The most characteristic criminal offences are those that are commonly regarded as morally wrong: assault, murder, theft, burglary, fraud, criminal damage and so on. In this respect also, it seems that the law is no more than the enforcement of a moral code, distinguishing right from wrong in much the same way. In short, if it is wrong, it must be illegal; if it is legal, it must be morally required or at least morally acceptable. To the extent that this is true, it can be said that there is a large area of overlap between morality and the law.
Closer examination, however, shows this to be a superficial assessment. There are in fact a number of distinct ways in which legal norms substantially diverge from moral norms. On the one hand, the law is in many respects less demanding than any serious moral code. The great majority of laws are prohibitions rather than positive commands, their main purpose being the negative one of establishing boundaries. The law generally does not require acts of charity or assistance that might be thought morally obligatory. In this sense, the law operates a minimal morality, based primarily on the need for restraint.
On the other hand, however, the law is in some senses more demanding than morality. In some relatively trivial respects, such as the requirements of bureaucracy or non-life-threatening traffic offences, it is arguable that one can break the law without doing anything morally wrong. What is often overlooked is that there are also more serious ways in which this can be the case. Legislation in the twentieth century has greatly extended the area of liability for harmful acts or omissions that are not directly intended and for which one would not normally be blamed. Whether or not this gradual extension of the ‘duty of care’ does actually reflect changing moral beliefs about responsibility is an issue about which more will be said in the course of the book. It is enough to say at this point that, on the face of it at least, the law has been ahead of popular perceptions of moral responsibility in this respect.
There is another distinct sense in which it can be seen that law and morality do not easily harmonise. Contemporary disagreement over such issues as the right to own firearms, the hunting of various kinds of animal, the stage of pregnancy at which abortions become unacceptable, the illegality of nearly every form of euthanasia, reveals an uneasy relationship between morality and the law. On such matters, the law cannot reflect the prevailing moral code, because there is no general agreement on the rights and wrongs at stake. In these contexts, the law must be out of step with morality, in the
specific sense that it cannot match the prevailing moral beliefs of society as a whole.
The myth of the congruence between morality and law is also exposed by any reflection on the history of institutionalised injustice and the struggles for equality and human rights. Penal codes sanctioning excessively cruel or inappropriate punishment, the legal endorsement of slavery and the slave trade, the barring of religious and ethnic minorities from the professions, and the denial of civil rights to women have all been opposed primarily through pressure for legal reform. The Nazi Nuremberg laws, the laws establishing and upholding apartheid in South Africa, and the US racial segregation laws have all been taken as outstanding examples of manifest incongruence between morality and law.
Many of these, of course, have been in step with the prevailing local morality of the day, and hence there is no necessary antagonism between the state of the law and the demands of contemporary moral perceptions or sense of justice. It is only from the standpoint of moral objectivism that it can be argued that the demands of justice rise above any particular social belief system, and that such laws can be judged in absolute terms as right or wrong. Moral relativists tend to argue that what usually happens is that with the advance of civilisation, the law comes into conflict with evolving moral norms, as these practices are increasingly perceived to be wrong; and that the law continues to protect outdated moral beliefs until it is reformed. Either way – moral objectivist or relativist – these examples show that there is at least a permanent tension between morality and the law, and that moral values never rest easily with the state of the law at any given stage of its development.
The positivist separation thesis insists that the law is one thing and morality, or the moral evaluation of the law, is another. This means that the connection between law and morality is contingent; laws do not always coincide with moral values or moral codes. There is no necessary connection between morality and the law. A law does not have to conform with any moral standard to be counted legally valid. One thing the separation thesis does not mean, however, is that legislators and judges are concerned exclusively with legal matters and should be quite indifferent to the moral rights and wrongs of the law. This may in practice be true up to a point, if the administration of a specific law is concerned more with the protection of sectional interests than with promoting justice, or if a judge believes that he or she is obliged to apply the letter of the law even when it is morally counter-intuitive. These, however, are mistaken interpretations of the meaning of the separation thesis, the function of which is primarily to develop an accurate description of the reality of law. This is a crucial point in legal theory, and it will be developed and clarified in the following chapters. To understand the prime target of the positivist separation thesis, we need first to focus on the concept of justice and the natural law theories that were built on an absolutist interpretation of this concept.
The concept of justice is not only the most prominent theoretical concept in the philosophy of law, equalled in importance only by that of ‘law’ itself, it is also so regular a feature of common discourse about public life that virtually everybody has an immediate intuitive understanding of it. It is one of those concepts – like ‘being’ or ‘truth’ – that is so readily understood, especially in the context of its negation, ‘injustice’, that any questioning of its meaning tends initially to cause consternation. We can all give examples of an injustice, but when faced with the direct abstract question of what exactly is the justice that is being denied, it is difficult to know where to start. One good starting point is to ask what kinds of thing the quality of justice can be ascribed to, and to confine our answer in the first place to common usage of words.
What rapidly becomes clear is that justice, as a fundamental moral concept, can only be ascribed in situations involving consciousness, rationality and a moral sense. The suffering caused by hurricanes, earthquakes or elephant stampedes is not in itself an injustice. What might be thought an injustice is the failure to relieve such suffering, or to help some at the expense of others. Justice is an issue only where there is conscious, purposive activity. Whether this is the activity of natural beings such as legal officials and emperors, or supernatural agencies such as angry or benevolent gods, the presence of conscious purpose is a necessary condition for speaking of justice.
The kinds of thing that can be described as just or unjust fall into three basic categories: agents, actions and states of affairs that are created by the actions of agents:
1 In traditional usage, the quality of justice is commonly attributed to individuals as such, a ‘just God’, ‘a just monarch’ or ‘a just man’. Although this usage is still extant, it is more common today to speak of persons with a greater or lesser sense of justice. We also use the term collectively to describe governments, which can have a general reputation for justice or for tyranny.
2 It is also more common in contemporary discourse to ascribe justice to particular actions and decisions rather than to people as such. A just action or decision is one that is sensitive to the rights of all those affected by it. An unjust action or decision is one that violates these rights.
3 The institutions typically held to exhibit the qualities of justice or injustice in varying degrees are those of a human society, a rule of law and a legal system. A society can be just or unjust in different ways: it can be organised in such a way that its benefits or burdens are distributed unfairly, and ‘an unjust society’ can also be understood as one in which the discrimination against or persecution of minorities is commonplace. More specifically, a legal system – which is often assumed to be the very embodiment of the pursuit and protection of justice – can be just or unjust to a greater or lesser degree. Legal systems that fall into disrepute are those that, for
example, suspend habeas corpus
or pervert the rules of evidence. Legal systems can be defective in other substantive ways, by failing to provide just and accessible remedies for civil wrongs, or by failing to develop an effective system of criminal justice. More specifically again, an unjust law is one that is perceived to perpetrate a formal or substantive injustice. For example, laws that are retrospective in their effect are widely regarded as unjust, because the subjects of the law are unable to decide whether or not to obey. In such cases, the form of the law is unjust. If there were a law, for example, preventing women from owning property, it would also be unjust in substance because there are no objective grounds for believing that they lack the ability to administer it.
The above threefold classification can be supplemented by Aristotle’s pioneering analysis, which remains a classical point of reference for legal theory. Aristotle (384–322 BCE) divided justice into the distributive and the corrective (or ‘emendatory’), the latter being subdivided into voluntary private transactions and involuntary transactions, the second distinction turning on the presence or absence of violence towards the victim of the injustice. This classification corresponds roughly to the distinction between social justice, civil justice and criminal justice.
Justice and equality
In the context of distributive justice, the problem of how the equality and inequality of status and entitlements between individuals are to be understood is paramount. Each political interpretation of what is to count as a fair distribution – whether rewards should be based on, for example, personal ancestry, individual worth and desert, effort or needs – has different implications for conclusions about political equality.
In sharp contrast, with both kinds of corrective legal justice, civil and criminal, the ideal of universal equality before the law is assumed. While it may often be true that legal practice falls short of the ideal, this equality in status between individuals who may be unequal in social standing or personal resources is one consequence of the first principle of formal justice, that ‘like cases should be treated alike’. The relevant ‘likeness’ in this phrase lies in the actions and situations involved, rather than the types of people. This is not a timeless principle of formal justice, to be found in practice wherever there is a legal system; it is an ideal towards which civilised legal systems can generally be seen to be moving. It is a principle symbolised by the scales held by the statue of justice over the Old Bailey. The scales symbolise the essential aim of corrective justice as the restoration of a balance or equilibrium that has been tilted or broken. The scales also signify that all individual interests are weighed equally, while the symbol of justice blindfold signifies that all legal judgements will be made impartially, without favour or discrimination.
The development of formal justice
This aspiration to complete legal impartiality is one essential feature of what is known as the rule of law. If the justice in all kinds of human transactions is to be measured effectively, those transactions have to be governed by rules that are applied with as much consistency as it is possible to achieve. What this requires is the formalisation, and hence the depersonalisation, of justice. While the primitive human instinct for justice (for fair treatment, revenge, compensation) is inclined towards a holistic assessment of the merits of competing parties, or of the character of aggressors and victims, the development of legal justice must take the opposite direction. Moral principles and standards have to be formalised into unbending rules that then apply to the act, rather than the actor.
This formal conception of legal justice appears to many to run against the grain. It sometimes feels like an abandonment of real justice, which should surely take account of the full context and circumstances of a legal dispute or crime. The point of it, however, is that in the history of any legal system a stage is reached at which the influence of power and wealth on the administration of law is resisted and neutralised. When judicial independence is established, the ideal of impartiality – itself a precondition of equality before the law – can be developed. The outcome of such conflicts is a strong legal presumption in favour of the courts adhering to strict general rules, without which equality of treatment of parties would not materialise, leading to an arbitrary system of ad hoc decisions that would be no legal system at all.
The main purpose of corrective justice, then, in seeking to restore the equilibrium by penalising civil wrongs or criminal actions in proportion to the wrong or harm done, is to deliver this justice within the limits imposed by patterns of law that have already been established. This is one of the meanings of the phrase ‘justice according to law’. Judges, it is generally held – especially in the light of the doctrine of binding precedent – are not free to arrive at what they in their conscience or individual wisdom believe to be the best decision; on the contrary, they are constrained to find the just decision within the law.
Justice, equity and the spirit of the law
Aristotle, who was writing both about the ideas of law and justice as such, and also about the realities of justice in the highly evolved legal system of ancient Athens, recognised the problems created by this systematisation of justice. While the strict application of general rules furthers the cause of judicial impartiality, its inflexibility does little for the adaptation of justice to individual cases that do not fall easily under such rules.
To counter the danger of justice becoming over-severe, Aristotle introduced the concept of equity (epieikeia
), which he regarded as a quality intimately connected with, but distinct from and more precise than, justice. The
equitable approach in law, for Aristotle, is aimed at the prevention of the unfortunate consequences of applying a general rule to a particular case that it does not, at a deep moral level, really cover. The feeling might be that while it is right in general that rule X
should be applied, it does not really apply to this particular case Y
, despite the formal requirements being fulfilled. For Aristotle, then, the function of the appeal to equity was to allow judges to temper the severity of legal justice, without departing from the constraints of law.
It is the idea of equity as a quality integral to law, rather than its place in the history of legal doctrine and practice, which is significant for disputes in the philosophy of law. The chequered history of its evolution, through Roman law and English common law, as the defining purpose of a higher court presided over by the Roman praetor or English Lord Chancellor, rendering ‘equitable relief’ to the victims of harsh justice in the lower courts, cannot be recounted here. What is of particular importance in this history is the role of conscience. The rationale behind the Chancellor’s judicial intervention was to annul specific decisions, the outcome of which was unconscionable, or contrary to conscience.
If the spirit of equity is captured by the idea of an ad hoc overruling of the unconscionable, what does an ‘equitable solution’ mean? Does it imply that the equitable judge – for the specific purpose of this one case – casts aside the law in favour of a morally preferable standard? Or can this individualisation of justice be found within the ambit of law? This will ultimately depend, of course, on how we are to understand the concept of law. Does it exclusively consist of the explicit rules of ‘black-letter law’ as posited by a valid legal authority, or should it be taken in a wider sense to include the notoriously vague but irrepressible idea of ‘the spirit of the law’? Those who are tempted to endorse the latter without further ceremony should bear in mind the conceptual problems here. ‘Spirit’ can be identified either with the justice with which the law is expected to be infused, or with the spirit of equity, which is to say that it can be contrasted either with a system of law that is indifferent to the requirements of justice, or with a rule-obsessed conception of justice that produces a repressively literalistic legal system. These are clearly two quite different senses in which ‘the spirit of the law’ can be interpreted.
Despite these and other conceptua...