Morality and the Law: a Star-Crossed Affair

A popular vexation is that good people are punished while bad people go free, for obeying the law and being a good person are not the same thing. Law and morality both set standards of behaviour; the difference is that, while law is generated by the state to apply to all in pursuit of the common good, morality differs by creed and exists largely as a private and elective affair. It will be argued that the law should not be based on morality, firstly because it does not benefit the law for it to intrude too heavily on people’s private lives, secondly because it does not benefit morality for it to be legally codified, and thirdly because a morality-based legal system would be at best chaotic, and at worst dystopian.

“It is not[…] the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour.”[1] Those words of the Wolfenden Report remain true today. Conversely, Lord Devlin’s social disintegration argument no longer compels. Close regulations of this kind violate civil liberties and are unenforceable – as with abortion prohibitions, they merely force things underground. It is to the law’s detriment that it intrudes too heavily on people’s private lives.

Likewise, it is to morality’s detriment that it is legally codified. Morality may be rooted in religion or else in people’s ideas of themselves. In either case, it is elective. When it is no longer elective, it loses its profundity. When it becomes law, it ceases to be morality. When we engage in this debate, we forget that morality does not need legal recognition: at its best it does not need the law’s protection, and at its worst is does not deserve it; if it were dying, the law would not save it. Regardless, those who dissent from majority morality must be protected: rights only exist so far as they exist for all.

What would a legal system based on morality look like? A generous characterisation would be of a haphazard system, unjust in its inconsistency; a less-generous conception would be of a nightmare. Would we have ochlocratic justice meted out by a mob at the denunciation of moral dissenters? History is littered with theocratic councils, totalitarian “people’s tribunals”, and vox populi vigilantism. Saudi Arabia employs a morality police, for such law requires such enforcement. Legal moralism blazed brightest in the prosecutions of Socrates, Christ, and Oscar Wilde. These projects were failures, and morality-based law is impractical, impracticable, and impossible.

In his Reith Lectures, Lord Sumption responded to the morality/law problem by saying simply that there is “no moral obligation to obey the law”. This is the uneasy compromise of free society wherein exist a plurality of moralities: one’s moral law must exist separately alongside the law of the land. Ultimately, none disagree with the moral universalists so much as they disagree with each other: they all love morality – they love their own – but they could never live under someone else’s.

[1] Great Britain., Wolfenden, . W. J. F. W., & Menninger, K. A. (1963). The Wolfenden report: Report of the Committee on Homosexual Offenses and Prostitution.