Political Concept : Law

Law is found in all modern societies, and is usually regarded as the bedrock of civilized existence. Law commands citizens, telling them what they must do; it lays down prohibitions indicating what citizens cannot do; and it allocates entitle-ments defining what citizens have the right to do. Although it is widely accepted that law is a necessary feature of any healthy and stable society, there is consid-erable debate about the nature and role of law. Opinions, for instance, conflict about the origins and purpose of law. Does it liberate or oppress? Do laws exist to safeguard all individuals and promote the common good, or do they merely serve the interests of the propertied and privileged few? Moreover, there is con-troversy about the relationship between law and morality. Does law enforce mor-al standards; should it try to? How much freedom should the law allow the individual, and over what issues?

Such questions also relate to the need for personal security and social order. Indeed, in the mouths of politicians, the concepts of order and law often appear to be fused into the composite notion of ‘law-and-order’. Rolling these two ideas together sees law as the principal device through which order is maintained, but raises a series of further problems. In particular, is order only secured through a system of rule-enforcement and punishment, or can it emerge naturally through the influence of social solidarity and rational good sense? Finally, there is the complex problem of the relationship between law and justice. Is the purpose of law to see that justice is done, and, anyway, what would that entail? Furthermore, how is it possible to distinguish between just and unjust laws, and, in particular, does the distinction suggest that in certain circumstances it may be justifiable to break the law?

Law

The term ‘law’ has been used in a wide variety of ways. In the first place, there are scientific laws or what are called descriptive laws. These describe regular or necessary patterns of behaviour found in either natural or social life. The most obvious examples are found in the natural sciences; for instance, in the laws of motion and thermodynamics advanced by physicists. But this notion of law has also been employed by social theorists, in an attempt to highlight predictable, even inevitable, patterns of social behaviour. This can be seen in Engels’s assertion that Marx uncovered the ‘laws’ of historical and social development, and in the so-called ‘laws’ of demand and supply which underlie economic theory. An alternative use, however, treats law generally as a means of enforcing norms or standards of social behaviour. Sociologists have thus seen forms of law at work in all organized societies, ranging from informal processes usually found in traditional societies to the formal legal systems typical of modern societies. By contrast, political theorists have tended to understand law more specifically, seeing it as a distinctive social institution clearly separate from other social rules or norms and only found in modern societies.

In a general sense, law constitutes a set of rules, including, as said earlier, commands, prohibitions and entitlements. However, what is it that distinguishes law from other social rules? First, law is made by the government and so applies throughout society. In that way, law reflects the ‘will of the state’ and therefore takes precedence over all other norms and social rules. For instance, conformity to the rules of a sports club, church or trade union does not provide citizens with immunity if they have broken the ‘law of the land’. Second, law is compulsory; citizens are not allowed to choose which laws to obey and which to ignore, because law is backed up by a system of coercion and punishment. Third, law has a ‘public’ quality in that it consists of published and recognized rules. This is, in part, achieved by enacting law through a formal, and usually public, legislative process. Moreover, the punishments handed down for law-breaking are predictable and can be anticipated, whereas arbitrary arrest or imprisonment has a random and dictatorial character. Fourth, law is usually recognized as binding upon those to whom it applies, even if particular laws may be regarded as ‘unjust’ or ‘unfair’. Law is therefore more than simply a set of enforced commands; it also embodies moral claims, implying that legal rules should be obeyed.

The rule of Law

The rule of law is a constitutional principle respected with almost devotional intensity in liberal-democratic states. At heart, it is quite simply the principle that the law should ‘rule’, that it should provide a framework within which all citizens act and beyond which no one, neither private citizen nor government official, should go. The principle of the rule of law developed out of a long-established liberal theory of law. From John Locke onwards, liberals have regarded law not as a constraint upon the individual but as an essential guarantee of this liberty. Without the protection of law, each person is constantly under threat from every other member of society, as indeed they are from him. The danger of unrestrained individual conduct was graphically represented by the barbarism of the ‘state of nature’. The fundamental purpose of law is therefore to protect individual rights, which in Locke’s view meant the right to life, liberty and property.

The supreme virtue of the rule of law is therefore that it serves to protect the individual citizen from the state; it ensures a ‘government of laws and not of men’. Such an idea was enshrined in the German concept of the Rechtsstaat, a state based on law, which came to be widely adopted throughout continental Europe and encouraged the development of codified and professional legal systems. The rule of law, however, has a distinctively Anglo-American character. In the USA, the supremacy of law is emphasized by the status of the US Constitution, by the checks and balances it establishes and the individual rights outlined in the Bill of Rights. This is made clear in the Fifth and Fourteenth Amendments to the Constitution, which specifically forbid federal or state government from denying any person life, liberty and property without ‘due process of law’. The doctrine of ‘due process’ not only restricts the discretionary power of public officials but also enshrines a number of individual rights, notably the right to a fair trial and to equal treatment under the law. Nevertheless, it also vests considerable power in the hands of judges who, by interpreting the law, effectively determine the proper realm of government action.

By contrast, the UK conception of the rule of law has seen it as typical of uncodified constitutional systems, within which rights and duties are rooted in common law, laws derived from long-established customs and traditions. The classic account of such a view is found in A.V. Dicey’s Introduction to the Study of the Law of the Constitution ([1885] 1939). In Dicey’s view, the rule of law embraces four separate features. First, no one should be punished except for breaches of law. This is the most fundamental feature of the rule of law because it distinguishes between rule-bound government and arbitrary government, suggesting that where the rule of law exists government cannot simply act as it pleases; for instance, it cannot punish citizens merely because it objects to their opinions or disapproves of their behaviour. Second, the rule of law requires what Dicey called ‘equal subjection’ to the law, more commonly understood as equality before the law. Quite simply, the law should be no respecter of persons, it should not discriminate against people on grounds of race, gender, religious creed, social background and so forth, and it should apply equally to ordinary citizens and to government officials. Third, when law is broken there must be a certainty of punishment. The law can only ‘rule’ if it is applied at all times and in all circumstances; the law rules only selectively when some law-breakers are prosecuted and punished, while others are not. Finally, the rule of law requires that the rights and liberties of the individual are embodied in the ‘ordinary law’ of the land. This would ensure, Dicey hoped, that when individual rights are violated citizens can seek redress through the courts.

Although Dicey believed that the rule of law was typical of the UK system of government and those modelled upon it, in a number of respects the UK offers a particularly poor example of the rule of law. For instance, though Dicey strove to reconcile the two, it can be argued that parlia-mentary sovereignty, the central principle of Britain’s uncodified constitu-tion, violates the very idea of a rule of law. It is difficult to suggest that the law ‘rules’ if the legislature itself is not bound by any external constraints. This problem has been exacerbated by the growth of executive power and the effective control which the government of the day exercises over Parliament, made possible by party discipline. This encouraged Lord Hailsham (1976) to describe the UK system of government as an ‘elective dictatorship’. Moreover, despite the introduction of the Human Rights Act 1998, Parliament, rather than the courts, still has the primary role in determining the extent of civil liberty. The establishment of a meaningful rule of law in the UK may therefore require far-reaching constitutional reform, including the codification of the constitution, the introduction of an entrenched Bill of Rights and the construction of a clear separation of powers between legislature and executive.

In its broad sense, the rule of law is a core liberal-democratic principle, embodying ideas such as constitutionalism and limited government to which most modern states aspire. In particular, the rule of law imposes significant constraints upon how law is made and how it is adjudicated. For example, it suggests that all laws should be ‘general’ in the sense that they apply to all citizens and do not select particular individuals or groups for special treatment, good or bad. It is, further, vital that citizens know ‘where they stand’; laws should therefore be precisely framed and accessible to the public. Retrospective legislation, for example, is clearly unacceptable on such grounds, since it allows citizens to be punished for actions that were legal at the time they occurred. In the same way, the rule of law is usually thought to be irreconcilable with cruel and inhuman forms of punishment. Above all, the principle implies that the courts should be impartial and accessible to all. This can only be achieved if the judiciary, whose role it is to interpret law and adjudicate between the parties to a dispute, enjoys independence from government. The indepen-dence of the judiciary is designed to ensure that judges are ‘above’ or ‘outside’ the machinery of government. Law, in other words, must be kept strictly separate from politics.

Nevertheless, the rule of law also has its critics. Some have, for instance, suggested that it is a truism: to say that the law ‘rules’ may acknowledge nothing more than that citizens are compelled to obey it. In this narrow sense, the rule of law is reduced to the statement that ‘everybody must obey the law’. Others have argued that the principle pays little attention to the content of law. Some have therefore argued that the rule of law was observed in the Third Reich and in the Soviet Union simply because oppression wore the cloak of legality. Even its keenest defenders will acknowledge that although the rule of law may be a necessary condition for just government, it is not in itself a sufficient one. Marxist critics go further, however. Marxists have traditionally regarded law not as a safeguard for individual liberty but as a means for securing property rights and protecting the capitalist system. For Marx, law, like politics and ideology, was part of a ‘superstructure’ conditioned by the economic ‘base’, in this case the capitalist mode of production. Law thus protects private property, social inequality and class domination. Feminists have also drawn attention to biases that operate through the system of law, in this case biases that favour the interests of men at the expense of women as a result, for instance, of a predominantly male judiciary and legal profession. Multicultural theorists have, for their part, argued that law reflects the values and attitudes of the dominant cultural group and so is insensitive to the values and concerns of minority groups.

Natural and Positive Law

The relationship between law and morality is one of the thorniest problems in political theory. Philosophers have long been taxed by questions related to the nature of law, its origins and purpose. Does law, for instance, merely give effect to a set of higher moral principles, or is there a clear distinction between law and morality? How far does, or should, the law of the community seek to enforce standards of ethical behaviour? Such questions go to the heart of the distinction between two contrasting theories of law: natural law and positive law.

On the surface, law and morality are very different things. Law refers to a distinctive form of social control backed up by the means of enforce-ment; it therefore defines what can and what cannot be done. Morality, on the other hand, is concerned with ethical questions and the difference between ‘right’ and ‘wrong’; it thus prescribes what should and what should not be done. In one important respect, however, law is an easier concept to grasp than morality. Law can be understood as a social fact, it has an objective character that can be studied and analysed. In contrast, morality is by its very nature a subjective entity, a matter of opinion or personal judgement. For this reason, it is often unclear what the term ‘morality’ refers to. Are morals simply the customs and conventions which reign within a particular community, its mores? Need morality be based upon clearly defined and well-established principles, rational or religious, which sanction certain forms of behaviour while condemning others? Are moral ideals those that each individual is entitled to impose on himself or herself; is morality, in short, of concern only to the individual?

Those thinkers who insist that law is, or should be, rooted in a moral system subscribe to some kind of theory of ‘natural law’. Theories of natural law date back to Plato and Aristotle. Plato believed that behind the ever-changing forms of social and political life lay unchanging archetypal forms, the Ideas, of which only an enlightened elite, the philosopher-kings, had knowledge. A ‘just’ society was therefore one in which human laws conformed as far as possible to this transcendental wisdom. This line of thought was continued by Aristotle, who believed that the purpose of law and organized social life was to encourage humankind to live in accordance with virtue. In his view, there was a perfect law, fixed for all time, which would provide the basis for citizen-ship and all other forms of social behaviour. Medieval thinkers such as Thomas Aquinas also took it for granted that human laws had a moral basis. Natural law, he argued, could be penetrated through our God-given natural reason and guides us towards the attainment of the good life on earth.

The demands of natural law came to be expressed through the idea of natural rights. Natural rights were thought to have been invested in humankind either by God or by nature. Thinkers such as Locke and Thomas Jefferson (see p. 189) proposed that the purpose of human-made law was to protect these God-given and inalienable rights. However, the rise of rationalism and scientific thought served by the nineteenth century to make natural law theories distinctly unfashionable. Nevertheless, the twentieth century has witnessed a revival of such ideas, precipitated, in part, by the cloak of legality behind which Nazi and Stalinist terror took place. The desire to establish a higher set of moral values against which national law could be judged was, for example, one of the problems which the Nuremberg Trials (1945–6) had to address. Under the auspices of the newly created United Nations, major Nazi figures were prosecuted for war crimes, even though in many cases they had acted legally in the eyes of the Nazi regime itself. This was made possible by reference to the notion of natural law, albeit dressed up in the modern language of human rights. Indeed, it is now widely accepted that both national and international law should conform to the higher moral principles set out in the doctrine of human rights. Such ideas are discussed at greater length in another post. 

The central theme of all conceptions of natural law is the idea that law should conform to some prior moral standards, that the purpose of law is to enforce morality. This notion, however, came under attack in the nineteenth century from what John Osbourne called ‘the science of positive law’. The idea of positive law sought to free the understanding of law from moral, religious and mystical assumptions. Many have seen its roots in Thomas Hobbes’s command theory of law: ‘law is the word of him that by right hath command over others’. In effect, law is nothing more than the will of the sovereign. By the nineteenth century, John Austin (1790–1859) had developed this into the theory of ‘legal positivism’, which saw the defining feature of law not as its conformity to higher moral or religious principles, but in the fact that it is established and enforced by a political superior, a ‘sovereign person or body’. This boils down to the belief that law is law because it is obeyed. One of its implications is, for instance, that the notion of international law is highly questionable. If the treaties and UN resolutions that constitute what is called ‘international law’ cannot be enforced, they should be regarded as a collection of moral principles and ideals, and not a law. A modern attempt to refine legal positivism was undertaken in H.L.A. Hart’s The Concept of Law (1961). Hart was concerned to explain law not in terms of moral principles but by reference to its purpose within human society. Law, he suggested, stems from the ‘union of primary and secondary rules’, each of which serves a particular function. The role of primary rules is to regulate social behaviour; these can be thought of as the ‘content’ of the legal system, for instance, criminal law. Secondary rules, on the other hand, are rules which confer powers upon the institutions of government; they lay down how primary rules are made, enforced and adjudicated, and so determine their validity.

While natural-law theories are criticized as being hopelessly philosophi-cal, positive-law theories threaten to divorce law entirely from morality. The most extreme case of this was Hobbes, who insisted that citizens had an obligation to obey all laws, however oppressive, since to do otherwise would risk a descent into the chaos of the state of nature. However, other legal positivists allow that law can, and should, be subject to moral scrutiny, and perhaps that it should be changed if it is morally faulty. Their position, however, is simply that moral questions do not affect whether law is law. In other words, whereas natural law theorists seek to run together the issues ‘what the law is’ and ‘what the law ought to be’, legal positivists treat these matters as strictly separate. An alternative view of law, however, emerged in the early part of the century, associated with the ideas of the famous American jurist, Oliver Wendell Holmes (1809–94). This is legal realism, the theory that it is really judges who make law because it is they who decide how cases are to be resolved. In this sense, all laws can be thought to be judge-made. However, as judges are, in the vast majority of cases, non-elected, this view has disturbing implications for the prospect of democratic government.

Law and Liberty

While political philosophers have been concerned about broad questions such as the nature of law itself, everyday debates about the relationship between law and morality have tended to focus upon the moral content of specific laws. Which laws are morally justified, and which ones are not? How far, if at all, should the law seek to ‘teach morals’? Such questions often arise out of the moral controversies of the day, and seek to know whether the law should permit or prohibit practices such as abortion, prostitution, pornography, television violence, surrogate motherhood, genetic engineering and so forth. At the heart of these questions is the issue of individual liberty and the balance between those moral choices that should properly be made by the individual and those that should be decided by society and enforced through law.

In many ways the classic contribution to this debate was made in the nineteenth century by John Stuart Mill, who, in On Liberty ([1859] 1972), asserted that, ‘The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others’. Mill’s position on law was libertarian: he wanted the individual to enjoy the broadest possible realm of freedom. ‘Over himself’, Mill proclaimed, ‘over his own body and mind the individual is sovereign’. However, such a principle, often referred to as the ‘harm principle’, implies a very clear distinction between actions that are ‘self-regarding’, whose impact is largely or entirely confined to the person in question, and those that can be thought of as ‘other-regarding’. In Mill’s view, the law has no right to interfere with ‘self-regarding’ actions; in this realm individuals are entitled to exercise unrestrained liberty. Law should therefore only restrict the individual in the realm of ‘other-regarding’ actions, and then only in the event of harm being done to others. The strict application of this principle would clearly challenge a wide range of laws currently in existence, notably those that are paterna-listic. For instance, laws prohibiting suicide and prostitution are clearly unacceptable, since their primary intent is to prevent people damaging or harming themselves. The same could be said of laws prohibiting drug-taking or enforcing the use of seatbelts or crash helmets, to the extent that these reflect a concern about the individuals concerned as opposed to the costs (harm) imposed on society.

Mill’s ideas reflect a fierce commitment to individual liberty, born out of a faith in human reason and the conviction that only through the exercise of personal choice would human beings develop and achieve ‘individual-ity’. His ideas, however, raise a number of difficulties. In the first place, what is meant by ‘harm’? Mill clearly understood harm to mean physical harm, but there are at least grounds for extending the notion of harm to include psychological, mental, moral and even spiritual harm. For exam-ple, although blasphemy clearly does not cause physical harm it may, nevertheless, cause ‘offence’; it may challenge the most sacred principles of a religious group and so threaten its security. Just such an argument was used by Muslim fundamentalists in their campaign against the publication of Salman Rushdie’s The Satanic Verses. In the same way, it could be argued that in economic life price agreements between firms should be illegal because they both harm the interests of consumers, who end up paying higher prices, as well as those of competitor firms. Second, who counts as the ‘others’ who should not be harmed? This question is most obviously raised by issues like abortion and embryo research where it is the status of the unborn which is in question. As will be discussed more fully in, if a human embryo is treated as an ‘other’, interfering with it or harming it in any way is morally reprehensible. However, if the embryo remains part of the mother until it is born she has a perfect right to do with it what she pleases.

A third problem relates to individual autonomy. Mill undoubtedly wanted people to exercise the greatest possible degree of control over their own destinies, but even he recognized that this could not always be achieved, as, for instance, in the case of children. Children, he accepted, possessed neither the experience nor the understanding to make wise decisions on their own behalf; as a result, he regarded the exercise of parental authority as perfectly acceptable. However, this principle can also be applied on grounds other than age, for example, in relation to alcohol consumption and drug-taking. On the face of it, these are ‘self-regarding’ actions, unless, of course, the principle of ‘harm’ is extended to include the distress caused to the family involved or the healthcare costs incurred by society. Nevertheless, the use of addictive substances raises the additional problem that they rob the user of free will and so deprive him or her of the capacity to make rational decisions. Paternalistic legislation may well be justifiable on precisely these grounds. Indeed, the principle could be extended almost indefinitely. For example, it could perhaps be argued that smoking should be banned on the grounds that nicotine is physically and psychologically addictive, and that those who endanger their health through smoking must either be poorly informed or be incapable of making wise judgements on their own behalf. In short, they must be saved from themselves.

An alternative basis for establishing the relationship between law and morality is by considering not the claims of individual liberty but the damage which unrestrained liberty can do to the fabric of society. At issue here is the moral and cultural diversity which the Millian view permits or even encourages. A classic statement of this position was advanced by Patrick Devlin in The Enforcement of Morals (1968), which argues that there is a ‘public morality’ which society had a right to enforce through the instrument of law. Devlin’s concern with this issue was raised by the legalization of homosexuality and other pieces of so-called ‘permissive’ legislation in the 1960s. Underlying his position is the belief that society is held together by a ‘shared’ morality, a fundamental agreement about what is ‘good’ and what is ‘evil’. Law therefore has the right to ‘enforce morals’ when changes in lifestyle and moral behaviour threaten the social fabric and the security of all citizens living within it. Such a view, however, differs from paternalism in that the latter is more narrowly concerned with making people do what is in their interests, though in cases like banning pornography it can be argued that paternalism and the enforcement of morals coincide. Devlin can be said to have extended Mill’s notion of harm to include ‘offence’, at least when actions provoke what Devlin called ‘real feelings of revulsion’ rather than simply dislike. Such a position has also been adopted by the conservative New Right since the 1970s in relation to what it regards as ‘moral pollution’. This is reflected in anxiety about the portrayal of sex and violence on television and the spread of gay and lesbian rights. Against the twin threats of permissiveness and multi-culturalism, conservative thinkers  have usually extolled the virtues of ‘traditional morality’ and ‘family values’.

The central theme of such arguments is that morality is simply too important to be left to the individual. Where the interests of ‘society’ and those of the ‘individual’ conflict, law must always take the side of the former. Such a position, however, raises some serious questions. First, is there any such thing as a ‘public morality’? Is there a set of ‘majority’ values which can be distinguished from ‘minority’ ones? Apart from acts like murder, physical violence, rape and theft, moral views in fact diverge considerably from generation to generation, from social group to social group, and indeed from individual to individual. This ethical pluralism is particularly evident in those areas of personal and sexual morality – homosexuality, abortion, violence on television and so on – with which the moral New Right is especially concerned. Second, there is a danger that under the banner of traditional morality, law is doing little more than enforcing social prejudice. If acts are banned simply because they cause offence to the majority, this comes close to saying that morality comes down to a show of hands. Surely, moral judgements must always be critical, at least in the sense that they are based upon clear and rational principles rather than just widely held beliefs. Do laws persecuting the Jews, for instance, become morally acceptable simply because anti-Semitic ideas are widely held in society? Finally, it is by no means clear that a healthy and stable society can only exist where a shared morality prevails. This belief, for example, calls the very idea of a multicultural and multi-faith society into question. This issue, however, is best pursued by an analysis of social order and the conditions that maintain it.