Law and Morality: the debate goes on
Posted on 25th Nov 2013 in Points of Law
In the last month two senior judges have given speeches concerning the relationship between the law and morality, reigniting the glowing embers of a debate which has flared up repeatedly over the last two centuries.
Although they were not in any sense putting forth opposing views, in so far as they agreed it was on subtly different bases.
NB The links in this post have now been updated to work with the new Judiciary website.
Law, Morality and Religion in the Family Courts
The more prominent of the two judges was Sir James Munby, President of the Family Division of the High Court, speaking at the Law Society’s Family Law Annual Conference “The sacred and the secular: religion, culture and the family courts” on 29 October 2013. His paper was entitled “Law, Morality and Religion in the Family Courts”.
Although this was more widely reported on his remarks about the role of religion in our law courts (“Religion … is not the business of government or the secular courts”), much of what he said was really directed to the wider issue of morals, which can be derived from religion, but need not be. And he was careful to remind his listeners of the distinction between enforcing religious principles or the morality derived from them on the one hand, and respecting and protecting the right to hold sincere beliefs on the other.
Sir James began by citing a case from 1905 in which a judge in a family case had confidently asserted that the function of judges was “to promote virtue and morality and to discourage vice and immorality”: see Constantinidi v Constantinidi  P 253, 278, per Sirling LJ. He gave various examples from the 19th and early 20th century in which courts had decided cases on moral grounds, applying the sexual morality of Victorian righteousness (or hypocrisy, if you prefer) according to which any woman who slept with a man outside marriage was to be treated as no better than a common prostitute, and could be stripped of rights over property or children simply by virtue of her, well, lack of virtue.
The Victorian hang-up about sex (or stern Canutism in the face of progress) is most startlingly exemplified by In re Besant (1878) 11 Ch D 508, in which it was held that the publication by the activist Annie Besant of a book about contraception, which was found to constitute an obscene libel, was sufficient grounds for removing her seven-year-old daughter from her custody.
Sir James then stepped back from the arena of family law, and considered the wider question of the relationship between law and morality, saying:
Happily for us, the days are past when the business of the judges was the enforcement of morals or religious belief. That was a battle fought out in the nineteenth century between John Stuart Mill and Sir James Fitzjames Stephen (Stephen J) and in the middle of the last century between Professor Herbert Hart and Sir Patrick Devlin (Devlin J). The philosophers had the better of the argument, and rightly so.
The debate in the 19th century began with Mill’s On Liberty, published in 1859, in which he put forth the libertarian argument that the only warrant for interfering with anyone’s actions was to prevent harm to others. Stephen J responded with his book Liberty, Equality, Fraternity, published in 1873, in which he asserted that “restraints on immorality are the main safeguards of society against influences which might be fatal to it”. The purpose of the law, both criminal and civil, was to promote virtue and prevent vice.
A century later, following the Report of the Committee on Homosexual Offences and Prostitution (The Wolfenden Committee) (1957), Lord Denning denounced the “evil” of homosexual activity as “so wrongful and so harmful that … it should be publicly condemned and, in proper cases, punished”.
Two years later Sir Patrick Devlin, delivering a lecture on The Enforcement of Morals, later published in a book, reiterated Stephen J’s view, asserting that “an established morality is as necessary as good government to the welfare of society”, and that “the suppression of vice is as much the law’s business as the suppression of subversive activities”.
Taking up the opposing, libertarian view, was another philosopher, Professor Herbert Hart, who in his book Law, Liberty, and Morality, echoed what JS Mill had said a century earlier, that essentially it was not the law’s business to regulate morality.
Sir James having set out the opposing positions, went on to demonstrate how history had proved the philosophers to have had “the better of the argument”. He did this first by citing a poet, Philip Larkin, one of whose two most famous poems begins: “Sexual intercourse began / In nineteen sixty-three…” Modern sexual morality, said Sir James, was a product of the 1960s.
This is not the first time Sir James has cited Larkin’s verse, it seems to be something of a favourite. He used it earlier this year in the 2013 ICLR Annual Lecture.
The verse goes on to mention two events that are emblematic of the 1960s. “The Beatles first LP” – which stands for the Swinging Sixties, pop, fashion, hippiedom and all that druggy counterculture stuff that you are not supposed to remember if you were actually there. And the “end of the Chatterley ban”, which is a reference to the collapse of the prosecution of Penguin Books for obscenity in publishing an unexpurgated domestic edition of DH Lawrence’s novel about an adulterous love affair, Lady Chatterley’s Lover.
Sir James picks up on the second of these:
The last hurrah of the ancien regime was not so much the failed prosecution of Penguin Books Limited in 1960 for publishing D H Lawrence’s Lady Chatterley’s Lover but rather the famous – or infamous – decision in 1961 of the House of Lords in Shaw v Director of Public Prosecutions  AC 220, for it marked the end, even if not recognised at the time, both of the ancien regime in matters sexual and of the pretension of the judges to set themselves up as guardians of public morality.
In the Shaw case the House of Lords upheld the conviction of the appellant for, inter alia, conspiracy to corrupt public morals, after he had published an illustrated directory of prostitutes. In his judgment Viscount Simonds, at p 267, said the “supreme and fundamental purpose of the law [was] to conserve not only the safety and order but also the moral welfare of the State”.
The reason why this was a “last harrah” of the Victorian view was that within a few years Parliament had legalised contraception and abortion and decriminalised homosexuality. The fundamental link between sex and procreation had been sundered, and so, Sir James seemed to be saying, had that between morality and law. At any rate, it was not for judges to arrogate to themselves the custodianship of public morality: the job of adapting the law for a multi-cutural multi-faith society was now for Parliament, not the courts.
Law as a system of values
Although Sir James gave his speech several days later, he made no reference to that given on 24 October 2013 by Sir Rabinder Singh, a high court judge (Singh J), giving the Jan Grodecki lecture at the University of Leicester, under the title “Law as a system of values”. Yet the content of the two speeches covered strikingly similar ground, and many of the same quotations were employed in illustrating the points made.
Sir Rabinder said the relationship between law and values was “not a straightforward one”. By “values” he meant to include
“what a society regards as most worthwhile. Often values are moral values but they need not be; and moral values certainly need not be founded on the doctrines of religion in general or any religion in particular.”
It was clear, he said, that many legal rules were intended to “give effect to certain basic values of a society”, and this provided “much of the moral force which is needed to support positive rules of law, in particular the rules of criminal law.” A society could not function without rules prohibiting murder or theft. “One thinks immediately of the Ten Commandments.” Such rules reflected fundamental values which might have derived from religious traditions but were needed even in a wholly secular society.
In civil law, “the principle that promises should be kept lies beneath the law of contract; and much of the law of equity was historically founded upon principles of conscience.” As for the law of negligence, one had only to recall Lord Atkin’s famously Biblical description of the “duty of care” as one owed to one’s fellow man as a “neighbour”: see Donoghue v Stevenson  AC 562, 580.
Likewise, legislation often sought to reflect and promote (even if it could not always enforce) certain values, such as that of equality between human beings regardless of race, sex, colour, ability etc, in the anti-discrimination laws.
However, just because something was considered by many to be morally wrong did not necessarily mean that it would be, or should be, prohibited by law. Examples were adultery, which was prohibited by the criminal law in the 17th century under Cromwell’s Commonwealth; and the drinking of alcohol in the USA during the era of Prohibition, which was not only ineffective but spawned even more criminality than it sought to suppress.
Law reflected the values of the society, but that did not necessarily mean everyone in that society agreed with the values reflected. Examples were the law on abortion or gay marriage. Until recently, the English common law had been assumed to rest on the values of Christianity. But it was clear that the law, and the courts who enforced it, were now secular. To illustrate this, Sir Rabinder cited a judgment of Lord Justice Laws in MacFarlane v Relate Avon Ltd  EWCA Civ 880, para 21:
The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur , but on the footing that in reason its merits commend themselves. So it is with core provisions of the criminal law: the prohibition of violence and dishonesty.
It was instructive, said Sir Rabinder, to consider how far the law had travelled in the last half century, since Shaw v Director of Public Prosecutions  AC 220. He quoted the passage from Viscount Simonds’s judgment which Sir James Munby had called a “last harrah” (see above), but also another passage in which Viscount Simonds cited Lord Mansfield’s 18th century dictum that “the Court of King’s Bench was the custos morum of the people and had the superintendency of offences contra bonos mores”.
By contrast, Lord Reid, who dissented in Shaw, said “Where Parliament fears to tread it is not for the courts to rush in.”
The key point which Sir Rabinder wished to make was that even though the secular courts now disavow any duty or intention to enforce morals, the law which they apply is still based on and reflects values. Although a judge was not entitled to impose on society his or her own subjective views of what was morally right or wrong, there were many occasions when simply applying a system of black letter rules was not enough. An obvious example was sentencing, where section 125 of the Coroners and Justice Act 2009 provided that the court should follow any relevant guideline issued by the Sentencing Council, unless if would be contrary to the “interests of justice”. That phrase was not, however, defined in the Act.
Other examples could be found in the civil law, under which a contract might not be enforceable if it would be contrary to pubic policy, where a covenant might be in unreasonable restraint of trade, or a duty of confidentiality overridden where it was in the public interest to do so (and where, one might add, there was an obligation of good faith in insurance contracts).
How was a judge to determine these questions without applying values? Where were the values to be found if not in the subjective views of the individual judge?
The answer, he said, was to be found in using the conventional techniques of legal reasoning, by referring to relevant legal materials, such as binding precedents or legislation, and by reference to the “fundamental values which are well established in our system of justice”. The principle of proportionality, for example, in relation to sentencing. The rights set out in the Human Rights Act 1998 were a good guide, if not an exhaustive one, to what our society regarded as fundamental values.
In Taking Rights Seriously (1977), the professor Ronald Dworkin had provided the insight that a legal system, while being a system of rules, also included principles, which were not as rigid as rules but had “gravitational force”. Such principles could be regarded as being rooted in the values of a legal system.
Most observers of the English legal system would acknowledge that its values included the concepts of fairness, equality, democracy and the rule of law. Sir Rabinder continued:
Although the law does not any longer attempt (or even think that it should attempt) to enforce morals in the sense that Lord Devlin thought it should 50 years ago, that is not to say that the law is immoral or even amoral. It is based on values, which lie at its foundations, but one of those values is that we do not necessarily think it right to impose a subjective code of private or sexual morality on an individual.
He then cited what Lord Devlin had argued about the enforcement of morals, and Professor Hart in reply, much as Sir James also does in his lecture. But interestingly, there’s another passage from Hart (which Sir James does not quote), in which he speaks in the language of values:
The unimpeded exercise by individuals of free choice may be held to be a value in itself with which it is prima facie wrong to interfere; or it may be thought valuable because it enables individuals to experiment – even with living – and to discover things valuable both to themselves and others.
The fact that the law is no longer concerned with the enforcement of morals (as Sir James makes abundantly, and perhaps triumphantly, clear) does not mean, says Sir Rabinder, that “the law has become a value-free zone. Far from it. It means that the values of the law are now different from what they were 50 years ago.” But it could still be said that the law was a system of values.
We cannot leave this debate (as it appears still to be, despite Sir James’s history-has-ended triumphalism) without mentioning two recent cases in which issues of morality may be said to have arisen. They are the subject of a recent article in Solicitors Journal (SJ 157/43 (12 November 2013), at p 27), in which Sophia Purkis, litigation partner at Fladgate LLP discusses “Relying on unlawful conduct as a defence”.
In Gelley v Shepherd  EWCA Civ 1172;  CN 1437, CA the Court of Appeal had to consider whether to enforce a judgment of a court in the British Virgin Isles which was tainted by fraud because the claimant had deliberately misled the court. The question, the court said, depended on whether the fraud was “operative” in obtaining the judgment relied upon, or whether it would have been obtained anyway. Only in the former case would the claimant be seeking to rely on his own wrongdoing. That test was derived from earlier cases including Jet Holdings Inc v Patel  1 QB 335, 344H–345A, per Staughton LJ, and Owens Bank Ltd v Bracco  2 AC 443, 484, 489, per Lord Bridge of Harwich, approving the Jet Holdings case, at p 484). There’s no suggestion that the claimant should be deprived of a remedy simply by virtue of his having deliberately misled the court in the earlier proceedings.
In Otkritie International Investment Management Ltd v Urumov  EWCA Civ 1196;  CN 1459, CA the court considered the principles applicable to an application to amend made mid-way through the trial to plead a defence based on illegality. The defendants sought to plead that the claims against them were barred ex turpi causa because the claimants had conspired to defraud a third party using the warrants which were the subject matter of the claims. The Court of Appeal refused to allow the amendment, citing the statement of Aldous LJ in Standard Chartered Bank v Pakistan National Shipping Corpn  EWCA Civ 3028;  1 All ER (Comm) 1;  1 Lloyd’s Rep 218, CA, that
“public policy requires that the courts will not lend their aid to a man who founds his action upon an immoral or illegal act. The action will not be founded upon an immoral or illegal act, if it can be pleaded and proved without reliance upon such an act.”
This is long way from Besant and Shaw. The courts no longer enforce morals, but they do apply values. Moreover, while they will not allow the law to be used in furtherance of illegality, they will not deprive a claimant of a remedy if his illegality is incidental or irrelevant. Since Tinsley v Milligan  1 AC 340, a claimant has not needed to come to court with as clean a pair hands as was said to be required before equity would intervene.
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