Hart H. L. a., The Concept of Law

---.----.',' ,,-,

an' concerned, a very surprising piece 01"judicial law-Illakill" concerning the very sources of law may be calmly 'swallowed~ '\'here this is so, it will often in retrospect be said, and may

gelluinely appear, that there always was an 'inherent' power in the courts to do what they have done. Yet this 111<1)' be a piolls

Iict ion, if the only evidence lor it is the success ofwluu has beell clone.

The ru anipulation b)' Ellglish courts of the rules eOllcerll- ; illg Ibe bindillg force of precedent is perhaps most II'Jllestl"

I

described ill this last way as a .succ<:ssrul I).id to take powers a~~. use tl u-m , 1 Ir-rc power acqtllrcs nuthorit y ex 11O.1[ Jin'/" rro~~

success. Thus before the decision of the Court of Criminal' i

Appeal in Rrx v, Tf!.j'101-1 the question whether that court had

I

au t lmritv to rule that it 'was not bou ncl by its own precedents i

Oil mat tcrs concerning the liberty of the subject might llave a ppca rcr] entirely' open. But the ruling was maclc and is 1I0W Iol lowucl as law. The statement that the COUI't always hac! all illhcn.'lil )lower to rule in this 'Nay would surely only be a way or Illakirlg the situation look more tidy titan it rca lly is. Hen:. a\ tl u: /'rillg(' or tll(~se vel'Y rUnclalllt:lltal things, we sliou lcl wcl-come the ru lc-sccpt ic, as long as he docs 1I0t Iorg ct thnt iL is ;It the fringe that he is welcome; anel docs not blind us Lo the

fact that what makes possible these striking developments by courts of the most fundamental rules is, in great measure, the prestige gathered by courts from their unquestionably rule-governed operations over the vast, central areas

or

the law.

r-f)

.' FOR1\IALISld AND ItULE·SCEI'TICISJ\1

V III

.J

U ST ICE

1\

N D 1v10 R A L J T Y

\VE have roulld it necessary, ill order to elucidate features

I

c\istinctive

or

law as a means

or

social control, to introduce delllents which can not be constru ctcd out or the ideas of an order, a tl nca t , ol n-r licncc, hn hits, and gencrality. Too 11I11ch that is charadlTistic 1)1'law is distorted by the cIlort to cx pla in it in these simple terms. Thus we round it necessary to

dis-tinguish Irom the idea or a general habit that oi~ a soci~l nIi~~, and to cmph asizc tlu: intcrn al aspect of rules manifested llJ their use as gllicling and c.ritical standards of conduct, ''',Ie then dis-tingu ishccl alllong rules between pr irna ry rules or obligation and sccoricl n rv l'uks or rccogn it ion , change, and adjucl icat ion, The: main tlll:trI(!

or

th is book is that so in a ny

or

the d ist iuct ivc

operations oltl u; law, and ,':0many Orll.le id,e:l!; wh.ich cr>I~stit~\l.e. the {'r:lIl1cwod; or legal thought. rcqrurc lor thci r c-l ucida tion reference (0 OIW 01'both or these two types of rule, that their

union may lie justly rcgarclcd as the 'essence' of law, though they may not always be round together wherever the word 'law' is correctly used. Our justification for assigning to the union or primary and sccoridru-y rules this central place is not that they

will there do th c work or a dictionary, but that they have g-reat explanatory power.

\Vc must now turn our attention to the claim which, in the pcrcuniul discussion or the 'essence' or the "nature' or 'the definition'

or

law, has beel! most frequently opposed to t ln: simple imperative: theory which we have found inadequate, This is the general contention that between law and morality there isa con ucxiou which is in some sense 'necessary', and that it is this which deserves to be taken as central,

in

any attempt to analyse or uluciclatc the notion or law. Advocates or this view

rnight not be concerned to dispute our criticisms or the simple imperative theory. They might even concede that it was a useful advance; and that the union ofprimary and secondary rules was

indeed more important than orders backed by threats as a starlilll'.-poilil Io r tlu: \lllllcr:;t;lIl(lill)~

or

law. 'L'l u-i r argllllll:T1t

r,'";II~,.!"I J.

---JUSTICE ANU MOlt,\LlTY

would, however, be th~t this, is not enough: that even these clements are of subordinate Imparlance, and that until tl '

, , '1' I ' , I I!.

nccessa,ry re auons lip WIt1morality is made explicit and its centralllnport~nce seen, the mists which have so long clouded the ~nclerstandm~ of Jaw cannot be dissipated, from this point of VIew the questionable or chal1ellgcablc cases of law would not me~cIy be the law of primitive societies or international law, wh!ch have been considered doubtful because oftheil'lack of a legislature, courts with compulsory jurisdiction and cc

II . , J, .

11-tr~ y org,alllz.ed sa~ctiOlls. Far more questionable Irorn 1I1is ~omt of vle~v IS the. tI5lcto be treated as law of those municipal sys~ems VIhich e.xlubl t the Iull com plement of

ivs«

gClldarmc cl lcglslalcur. ~lIt. [~l!1to cOllf~nn to certain fundamental require-ments 01 justrcc or moral ity. In the words of St. Auuustin ,I '\\?:at an:, states withou t justice but robber-bands enla~'g~cl

?:

.

I he ~lalln that bet,,:,ccn law and n:orality there is a necessary eo~ncxlOn has many Important variants, not all of them con-SpICUOUSfor their clarity. There arc many possible illtcrpreta-tioris of the key terms 'necessary' and 'morality' and these have n,ot ~lways been disti,n.gl1is}:ed and separately considered by either advocates or crrncs, I he clearest, perhaps, because it is the n~ost cxtt:ellle form or expression of this point or view, is that associated With the Thomist tradition of Natural Law. This comprises a twofold contention: first that thcre are certain principle: of true Ill?ralit)' OJ" justice, discoverable by human

n:a~oll wl.lh.ou t the aiel of revelation even though they have a clivinc onglll; secondly that man-made laws which conflict with these principles are not valid law. 'Lex iniusta non est lex.' Other vnjian ts of this general point of view take a different view of both the status of principles of morality ant! of il«: co.nseql1encl:s of conflict between law and morality, Some COII-c~IVe morality not as immutable principles of conduct or as discoverable by reason, but as expressions of human attitudes ~o ~:O.lldllCIwl~id'.'.11:1)' vary from society to society or Irnru individual to ~1l(liVIdual. Theories of this form usually also hold that conflict between law and even the most fundamental requireme-nts of morality is not sufficient to deprive a rule or its status as law; they interpret the 'necessary' conncxion between law and morality in a different way. They claim that [or a legal

I COUjtH;Q1U, iv. -, ., ,

,

.

/!

i~:;

~ml

(

9

:

~

;

'

j

l

\

!h

.

.

.

iW.';!:·!';,,::;'· JUSTICE AND /I.·IOKALITY '5:l

r-

.

.

~

.

.

.

~}\~i~;:~·: .

1

·

:;

t

;C

:

;~

;

:

i

~

ystc

l

11

t.a cxi~t there must

?~a

widely diffus~J, ~hough no: ;.!;':':;:!";::jlcecSsanly11I1Iv(;rs<1l,rccogrunon of a moral obligation to obey ::.i.:~,;~~?::thelaw, even though this may be ovcrridcn in particular cases

:~

:

:

:

::

:

:

.

(;

:

\

':

bya

~tronger moral obligation not to obey particular morally :·:·:·:;:'·:<>:..jniqUltOl1Slaws.

: ";:'.: The lull assessment or the dillcrcnt varieties of theory as

sert-- 'iag a necessary conncxion between law a~d morals '-Noul.dtake us far into moral philosophy. But something less than this may provide any thoughtru.l reader with ~nough t~ forn: a re~slJnecl view of the truth and importance 01 such claims. 1-or this pur-posc what is most needed is a separation and identification of some long-entangled issues, which we consider in this chapter and the IlCXt. The first of these issues concerns the distinct ion within the general sphere of morality or the specific idea or justice and the special features which account fo.! its peculiarly

intimate conncxion with law. The second concerns the charac-teristics which distinguish moral rules and principles not only from legal rules but Irom all other forms of social rule or stan-dards or conduct. These two issues arc the subject or this chapter; the third, which is the subject or the next, concerns the rna ny different senses and ways in which legal rules and morals may be said to be related.

. I. P IUx c n:L E S OF JUsTIC E.

The terms most frequently used by lawyers in the praise or condemnation of law or its administration are the' words 'just' aild 'unjust' and very often they writc as if the ideas or justice and morality were coextensive. There arc indced very good reasons why justice: should have a most prom incnt place in lh(~ criticism 01"legal arrangements; yet it isimportant to see that it

is

a distinct segment of morality, and that laws and the administration or laws may have or lack excellences of different kinds. Very little reflection 011 some common types of moral judgmcnt is enough to show this special character of justice. /\. man guilty or gr'oss cruelty to his child would often be judged

l,·

.

to have done something morally wrong, bad, or even wicked or to

,

<,.::":

have disregarded his moral obligation or duty to his child. But

::.

:Wi

:;

,

:

:

:

.

:

·

it

would be strange to criticize his conduct as unjust. This is not

.

1

.

:

H;

::

t;<:

because the word 'unjust' is too weak in condemnatory force,

i

t~

llji

i

;

t

:

;

,

i

·

I !

i

:

.

r: I I

I

I

I

l

:*

'

,

I~

'

'i

;'

:'::'

'

\"

,

~

:

/

l

H

i

~

!

~;r

.

:

:

i

t

;»

.J

U::;TICE ,\NJ) t-tOItAI.1TY I~~)

H/~

;

",

:

unfair; and a person as justly or unjustly convicted. These arc

i

::

'

:

'

derivative applicatio.ns of the n.oti~n of ~~sti~e which arc

ex-I'

'

pl iea,llk .once the primary ~ppl.lcaLloll 01 Justice to mutters of ~liSLl'lblltJOn and compensation IS understood.

I

!:': The general principle latent in these diverse applications of

:':• the idea of justice

is

that individuals arc entitled in respect of eaeh other to a certain relative position of equality or inequality. This is something to be respected in the vicissitudes of social life when burdens or benefits fall to be distributed; it is also something to be restored when it is disturbed. Hence justice is traditionally thought of as maintaining or restoring a balance or jJroj)orliOlZ, and its leading precept is often formulated as 'Treat like: cases alike'; though we need to add to the latter '

'and IIT:ll tlifh:rcl11 cases diflcrcn tly '. So when, ill (he nru n c of justice, we protest ;,gaimt a law forbidding colourcd people the

use or Ihe ptl blic parks, the point or such criticism is that such a law is bad, because ill distributing the benefits of public ameni-ties among the population it discriminates between persons who are, in all relevant respects, alike. Conversely, if a Jaw is

prnisccl as j list because it withdraws [rom some special section ~:()1IIl:pri vi lege orin nutill it y,c.g. in taxation, the gu idingthought is that then: is no such relevant difference between the privi-leged class and the rest of the community as to entitle them to the special treatment. These simple examples are, however, enough to show that, though 'Treat like cases alike and dif-Icrcnt cases diffcrcn t ly' is a central clement in the idea of justice, it is by itself iucornplctc and, until supplemented,

cannot aflorcl any determinate guide to conduct. This is so because allY set of' lu nnau beillgs will resemble each other ill SOllie respects and differ Irorn each other in others and, until

it

is established what resemblance and differences arc relevant, 'Treat like cases alike' must remain an empty form. To fill it we must know when, for the purposes in hand, cases arc to be regarded as alike and what differences arc relevant. Without this further supplement we cannot proceed to criticize laws or other social arrangements as unjust. It is not unjust for tile law when it forbids homicide to treat the red-haired murderers in the same way as others; indeed it would be as unjust if it tl:eated them differently, as it would be

if it

refused !O treat dtlferently the sane and the insane.

IJ'l JUSTICE AN]) MORALlTY

but because the point of moral criticism in terms of justice Or injustice is usually differcn t from, and more specific than, tlte other types of general moral criticism 'which arc appropriate ill this particular case am! arc expressed by words like 'wrong', 'bad', or 'wicked'. 'Unjust' would become appropriate if the , 'man had arbitrarily selected one 01" his children for severer ,,"

punishment than those given to others guilty of the same fault" or if he had punished the child for some

offence

without takillg',~

steps to see that he really was the wrongdoer. Similarly when we turn from the criticism of individual conduct to the criticism of'Iaw, we might express our approval ofa law requiring parents to send their children to school, by saying that it was a good law and our disapproval of a law forbidding the criticism of the Goverllll1Cnt, asby call ing ita bad law. SlidIcriticisms wou ld not normally IJe couched in terms 01"'justice' and 'injustice'. '.Just', 011 the other hand, would be the appropriate expression 0[' approvalofa law distributing the burden of taxation according' to wealth; so 'unjust' would be appropriate for the expression of disapproval of a law which forbade coloured people to use the public means

or

transport 010 the parks, That just and

un-just arc more specific forms ofmoral criticism than good and bad OJ' right and wrong', is plain l'rOJI1 the fact that we might illtelligibly claim that a law was good because it was just, or that it was bad because it was unjust, but not that it was just because good, or unjust because bad.

The distinctivc features of'j nstice and their special connexion with law beg in to emerge if it is observed that most or the criticisms made in terms or just and unjust could almost equally well be conveyed by IlIe words 'f:lir' and 'unfair", Fairness is plainly not coextensive with morality in general; references to it arc mainly relevant ill two situations in social life, One is when we arc concerned not with a single individual's conduct but with the way in which classes of individuals are treated, when some burden or benefit falls to be distributed among them. Hence what is typically fair or unfair is a 'share'. The second situation is when some injury has been done and compensation or redress is claimed. These arc not the only

contexts where appraisals in terms of justice or fairness arc '; (::

made.

ve«

speak not only of distributions or compensations as ~'i,

j ust or fair butaim of a judge a, just or unj ust ; a trial as fair or

1

-

~

:i

i

,

)

"

'"

"

~

"

!

~

l

!

!

}

>

.i~·

:{.

,

.

.~

~

I' J!:1;1 .':It~ ,.il'\;l1

'

j

:iUI

_,[;,; ~~I~1 ~,I~iJ Ii ,.," .i'II~'

'1:

II~~~ j

.p!

i~ I.J

ili

.

I

:

l

l

.

I.

!

!

1

1Jl

.

·

·

·

·l"

,.1"

"'Il!

\

. j

II!lj

:l

~

~

1;

I ~ ":.~.l ~1.

e

l

.~

'

.

'

1

111;. )

_':

,~" I

_~U

"

_l

_I

!\Ij':

.'Ii

i ~

'

ff

I

r

.

~1~

t,lll

IIJ

I

.+

_'I ~

1,1

'!IIB

l

.

li

~

!!

."IU

(

i

~

'

ii

tI " tl

'I

,;

1

II

b

D

~

---

_

.._... .._..•...-....

-

-

-

---.-

..

--

-

.

.

---

~-

..

-

.

-

-

..

-

.•.

--

-

.

-

-

.

-

-

.

~~-

-I:;G ,lUSTICE AN)) l\IORJ\L1TY

There

is

therefore a certain complexity in the structure of the idea of justice. We Ill;ty say that it consists

or

t.woparIs: a un],

form or coristan r Icaturc, sumillarized in tile precept 'Treat like cases alike' and a shirting or varying criterion used in determining when, for any given purpose, cases are alike Or d iflcrcnt , In this respect justice is like the notions or vvlra r is gelluine, or tall, or warm, which contain an implicit referellce to a standard which varies with the c1assificatioll 0('the thing

-to which they arc applied. A tall child lIlay be the same height as a short man, a warm winter the same temperature as a cold summer, and a fake diamond may be a genuine antique. nut justice is far more complicated than these notions because the shifting standard of relevant resemblance between difTcrcnt cases incol'poratcd in it not o n ly varies with the type of subject to which' it is applied, but may often be open to challenge even in relation to a single type or subject.

In certain cases, indeed, the resemblances and differences between human beings which are relevant for thc criticism 01"

legal arrangclllents as just or unjust are quite obvious, This is pre-eminently the case when we arc concerned not with the Justice or injustice of the lato but of its nj'i11icnfioll in parti-cular cases. For here the relevant resemblances and differences between individuals, to which the person who administers the law must attend, are determined by the law itself. To say that the law against murder is justly applied is to say that it

is

impartially applied to all those and only those who are alike in having done what the law forbids: no prejudice or interest lias deflected the :lcllllinistrator Irrun Ireatillg them 'equally'. C()II~istenll)' with tllis the procedural staudards such as 'nudi alteram flar/em' 'let no one be a judge ill his own cause:' are thought or as requirements of justice, and in England and America arc often referred to as principles of Natural Justice. This is so because they arc guarantees or impartiality 01'

objec-tivity, designed to secure that the law isapplied to all those and only to those who arc alike in the relevant respect marked out by the law itself.

The cormcxion between this aspect of justice and the very notion of proceeding by rule is obviously v~ry close. Indeed, it might be said that to apply a law justly to different cases is simply to take seriously the assertion that what is to be applied

!.

'

!

;

!

.;;"

I

;

'"

'.

!!U

i

r>

IlISTJ (:1-: J\NJ) MORAI.JTY 1~7

I

'

!'

:.

!

'

; "

~,

in dillcrcnt c:as~s'is.t.h~ same genera: rule, witho:lt ~rej:ldice,

. '... interest, or cnpru:c. J h isclose conncxron between jusucc in the

!

administration or the law and the very notion of a rule has

I·

tempted some famous thinkers to identify justice with

con-. [ormity to law. Yet plainly this is an error unless 'law' is given , some specially wide mcaning ; for such all account or justice

: kayes unexplained the Iact th.u criticism ill the name of justice is Hot confined to the nchuinistr.u ion of the law in particular cases, but the laws themselves arc often criticized as just or unjust. Indeed there is no absurdity in conceding that an un-just law forbidding the access of coloured persons to the parks has been justly administered, in that only persons genuinely guilty of breaking the law were punished under it and then

only nftcr a [;lir trial.

When we turn from the justice or inj ustice of the adrninistra-tion of the law to the criticism or the law itself-in these terms, it is plain that the law itself cannot now determine what

rcscmbl ancr-s and differences among individuals the law must rccoguivc if its rnlcx art: to trcat like cases alike and so bejust. Here accordingly there is much room for doubt and dispute ..

Fundamental clil lcrcnccs, in gener-al moral and political out

-look, may lead to irreconcilable diflcrcnccs and disagreement as to what characteristics of human beings are to be taken as relevant for the criticism of law as unjust. Thus, when in the previous example we stigmatized as unjust a law forbidding

colourcd people access to the parks, this was on the footing that, at least in the distribution of such amenities, differences of colour arc irrclcvan t, Certainly ill thcrnodcrn world, the fact Ihat lunnun hci ngs,

or

whatever colour, are capable or thought,

f<.:c1ing,and sell-control, would be gcncrn lly though not

univer-sally accepted as constituting crucial resemblances between them to which the law should attend. Hence, in most civilized COUntries there is a great measure of agreement that both the criminal law (conceived not only as restricting liberty but as providing protection from various sorts of harm) and the civil !a,: (conccived as offering redress for harm), would be unjust If 111the distribution or these burdens and benefits they dis-criminated between persons, by reference to such characteristics as colour or religious belief. And if, instead of these well-known Joci of luu11an prejudice, the law disnilllillated by reference to

:j.

!

.

.

f

1

·

:::

:

"'."

....

;

JUSTICE AND I\IORALITY

such obvious irrelevancies as height, weight, or beauty it would be both unjust ane! ludicrous. If murderers belongillg to the established church were exempt from capital punishment, if only members of the peerage could sue for libel, if assaults on eoloured persons were punished less severely than those on whites, the laws would in most modern communities be con. demned as unjust on the footing that prima facie human beings should be treated alike and these privileges and immunitie~ rested on no relevant ground.

Indeed so deeply embedded ill modern man is the principle

th.u prima facie human beings arc entitled to be treated alike

that almost universally where the laws do discri m iuutc by r~ti::rellce to such matrers as colour a nd race, Iip service at least

is still widely paid to this principle. If such discriminations are attacked they are often defended by the assertion that the class discriminated against lack, or have not yet developed, certain csscn tial human attri bu tcs ; 01- it maybe suid that, rcg rettable

though it is, the demands of justice req uiring their cqu al treat-ment must be overridden in order to preserve something held to be of greater value, which would be jeopardized if such discriminations were not made. Yet tliollgll lip service is IIOW -gcncr;Li, it is ccrtaildy possible to (~(Jllccive Or;l iuorulit y which

did not resort to these allen disingenuous devices to j ust.ify discrimination and inequalities, but openly rejeeted the prin-ciple that

prima

facie human beings were to be treated alike. Instead, human beings might be thought of as falling naturally and unalterably into certain classes, so that some were naturally filled to he free a IIII others to be tlrcir slaves or, as Aristotle expressed 'it, the liviJlg iustrurucnts of ot hcrs. Here tlu: sense

ofj)rimafacie equality among men would be absent. Something of this view is to be found in Aristotle and Plato, though even there, there is more than a hint that any full defence of slavery would involve showing that those enslaved lacked the capacity for independent existence or differed from the free in their capacity to realize some ideal of the good life.

It is therefore clear that the criteria of relevant resemblances and differences may often vary with the fundamental 1110ral outlook of a. given person or society. Where this is so, assess-ments of the justice Or injustice of the law may be met with counter-assertions inspired by a different morality. But

some---

...~--- -- ..-

-_._-_

..

_----I

:~~~n;,:'

'"

-'::I."~,,::-k:;'<:,:, .

JUSTICE AND MORALITY i59

-:::"J~

-times a consideration of the object which the law in question is

, ,1nittedly designed to realize may make clear the resemblances

acn . d h

and diflcr cnces which a just law should recogmze: an t ey _ may then be scarcely open to dispute. If a law pro~ld:s for the relief of poverty then the requirement of the pnnclpl: that 'Like cases be treated alike' would surely involve attention to the need of different claimants for relief. A similar criter~on ~f nced is implicitly recognized when the burden of taxation is adjusted by a graded income tax to the wealth oft.h.e in~ividuals taxed. Sometimes what is relevant arc the capacities 01 persons for a specific function with which the exercise of the law in question may be concerned. Laws which ex.elude from the franchise, or withhold the power to make WIlls or coritracts. from children, or the insane, are regarded as just because such persons lack the capacity, which sane ~~~lts _are pr~su~e~ to have, to make a rational use of these facil itics. Such discri mina-lions are made on grounds which are obviously rclevant, whereas discriminations in these matters between the sexes or between persons of different' colour are not; though ofcourseit has been argued in defence of the subjection of women, .or co lou rud people, Illat W<lIIlCIIor colnllred p<:ople lad: the wh itc male's capacity lor rational thought and decision. To argue thus is of course to admit that equal capacity for a particular function is the criterion of justice in the case of -such law, though in the absence of any evidence that such capacity is lacking in women or coloured persons, _again .only lip service is paid to this principle.

So ell' we have considered the justice or injustice of laws which may be viewed as distributing among individuals burdens and benefits. Some of the benefits are tangible, like poor relief, or food rations; others are intangible, like the protection from bodily harm given by the criminal law, or the facilities afforded by laws relating to testamentary or contractual capacity, or the right to vote. From distribution in this wide sense, we must distinguish compensation for injury done by one person to another.

Bere the connexion between what is just and the central pre-cept of justice 'Treat like cases alike and different cases dif-ferently' is certainly less direct. Yet it is not too indirect to be traced and may be seen in the following way. The laws which provide [or the compensation by one person of another for

IC" JUSTICE AND MORALITY,

torts or civil injuries might be considered unjust for tWO':

different reasons. They might, on the one hand, establish unfail' ~.

privileges or immunities. This would be so if only peers could;

sue for libel, or if no white person were liable to a colourcd.i

person for trespass or assault. Such laws would violate, in a straightforward way, principles of fair distribution of the rights' and duties of compensation. But such laws might also be unjust in a quite different way: for while making no unfair discrirnins, tions they might fail altogether to provide a remedy for certain types .of injury inflicted by one person on another, even though morally compensation would be thought due. In this matter the law might be unjust while treating all alike.

The vice of such laws would then not be the maldistributi~ but the refusal to all alike, of compensation for injuries which it was morally wrong to inflict on others. The crudest case of such unjust refusal of redress would be a system in which no one could obtain damages for physical hurm wantonly inflicted. I t is worth observing that litis injustice would still remain even if the 'criminal law prohibited such assaults under penalty. Few instances of anything so crude can be found, but the failure of English law to provide compcrisntion for invasions of pri-vacy, often found profitable by advertisers, has often been criticized in this way. Failure to provide compensation where morally it is held due is,' however, also the gravamen of the charge of injustice against technicalities of the law of tort or contract which permit 'unjust enrichment' at the expense of another by some action considered morally wrong.

The conncxion between the justice and injustice of the com-pensation for injury, and the principle "Treat like cases alike and different cases differently', lies in the fact that outside the law there is a moral conviction that those with whom the law is concerned have a right to mutual forbearance from certain kinds of harmful conduct. Such a structure of reciprocal rights and obligations proscribing at least the grosser sorts of harm, constitutes the basis, though not the whole, of the morality of every social group. Its effect is to create among individuals a moral and, in a sense, an artificial equality to offset the in-equalities of nature. For when the moral code forbids one man to rob or use violence on another even when superior strength or cunning would enable him to do so with impunity, the

i,

l

~

.

.

.

<.', :.~ !(;i1:!ip·L;.:

ij:~m\)m

,

:

:

:"

JUSTICE AND MORALITY IGI

;

:·!!tit:::

>

·

g and cunning arc put on a level with the weak and

."..,., sIron • . H I

.:.::,~:;::' . pic Their cases are made morally alike. ence t ic stron.g .;//.~":~n ~ho disregards mo~ality a~d takes adv.antag~ of ~~s

'.:

:

.»

:

'

strength to injure anoth?r 15 conc?lVed as upsettl~g. thl~

cquili-";0::'; ····.brium, or order of equality, established by r:10rals, Justlc.e then

. uires that this moral status quo should as far as possible be ~~;tored by the wrongdoer. In simple cases of theft this wo~ld

. ply involve giving back the thing taken; and compensation

S1In . I" .. . 0

for other injuries is an extension of tus .rnll11t.lve n~tlOn. ne who has physically injured another either l~tentlOnal1y. or through negligence is thought of as ha,,:ing taken som~thmg. from his victim; and though he has not literally don~ t~lS,. th,e figure is not too far fetched: for he 1.1asp~'ofit~d at 1~IS.VICtlT~S expense, even if it is only by indulging 111.SWIsh to 1I1Jure him or not sacrificing his ease to the duty of taking adequate p=ec~u-tions. Thus when laws. pr~vi~e compensat~on. wh~r.e Just~~c demands it) they rceO!;I117.eindirectly th~ principle . I rcat like eases alike' by providing for the rcstorn uori, after disturbance, or the moral status quo in which victim and wrongdoer arc on a footing of equality and so alike. Again, it is conce~va~l~ that there might be a moral outlook which did not put individuals on a footing of reciprocal equality in these matters. The moral code' might forbid Barbarians to assault Greeks b'7t allow Greeks to assault Barbarians. In such cases a narbarl~n. m~y be thought morally bound to compensate a C?reek .for mJunes done though entitled to no such compen~atl~n. hll~self. . T~e moral order here would be one of inequality in which victim and wrongdoer were treated differently. For such. an outlo.o~, repellent though it may be to us, the I~w would be JUs~only If it reflected this difference and treated diflcrcnt cases differently.

In this brief outline of justice we have considered. only some of its simpler applications in order to show the. speCIfic::form of excellence attributed to laws which arc appraised as JUst. Not only is this distinct from other values which laws may ~ave .or lack, but sometimes the demands of justice may conflict. With other values. This may occur, when a court, in sentencing a particular offender for a crime which has become prevalent, passes a severer sentence than that passed in other similar

t/:,:;:,.'.:ease~, and avowedly docs this 'a~ a warning.'. There is here a l~()/~;:::.'sacrrfiee

er

the principle 'Treat like cases alike to the general

~!

'

~lf

;t

F

iC

"

:::.

~.·::n!tt,;;.·: .

iii;;l;ii.i;;:

>

·

-hr"!"'I:,'" i

I

,

I

~_"~_':""'_""'_~_'_" '_''''''':''''~~' •....J-'''~-':';.!..'-:''.;:''--''':''~~.:...:.;~(,r..~';J."",:",'~::":':&'''''':';';

H"

~

;

l

l

i

\~

l

W;

\

~

:

:

'

.

it;;

;;

I

:

;

:

JUSTICE AND l\'lORALITY 163

:;.1"';";,1.:,

.:,:':,,' there seems to be no scale by which contribu tions of the various

.,' alternatives to the common good can be measured and the

'greater id~n tiflecl,. It is,. however,. clear that a cho.ice, made withou t pnor consideration of the in terests of all sccuons of the

'.community would be open to criticism as merely partisan and unjust. It would, however, be rescued from

this

imputation if the claims of all had been impartially considered before legislation, even though in the result the claims of one section were Sllbordinatcd to those of others.

Some might indeed argue that all that in fact could be meant by the claim that a choice between the competing claims ofdiffcrcllt classes or iutcr csts was made 'for the common good', was that the claims of all had been thus impartially surveyed before decision. Whether this is true or not, it seems clear that justice in this sense is at least a necessary condition to be

satisfied by any legislative choice which purports to be for the common good. We have here a further' aspect of distributive justice, differing from those simple forms which we have

dis-cussed. For here what is justly 'distributed' is not some specific benefit amoll/{ a class of cluinuuus to it, but impartial attention to and considcra tion of competing claims to different benefits.

.62 JUSTICE AND ,.,.10RALITY

security or welfare of society. IIIcivil cases, a similar collfliet r, between justice and the general good is resolved in favour of the . latter, when the law provides no remedy for some moral wrong because to enforce compensation in such cases might involve great difficulties of proof, or overburden the courts, or unduly hamper enterprise. There is a limit to the amount of law en-forcement which any society can afford, even when moral wrong has been done. Conversely the law, in the name of the general welfare of society, may enforce compensation Irorn one 'r

-who lias injured another, even where morally, as a matter of justice, it might not be thought due. This is often said to be; the case when liability in tort is strict, i.c. independent of the in-tention to injure or failure to take care. This form of liability is sometimes defended on the ground that it is in the interest of 'society' that those accidentally injured should be compensated; and it is claimed that the easiest way of doing this is to place the burden on those whose activities, however carefully con-trolled,. result in such accidents. They commonly have deep pockets and opportunities to insure. When this defence is made, there is in it an implicit nppcal to tile !jcneral welfare of society which, though it· may be morally' acceptable and sometimes even called 'social justice', differs from the primary forms of justice which arc concerned simply to redress, as Car as possible,

the status quo as between two individuals.

An important juncture point between ideas of justice and

J.

ust~~~<:'-EPE~~,~.~,.~S.~._~:,!.C;_,~<:£.'.r:::~.~!...?L:;:_<;.:.alitY....Er~':2!:..~ily_<' ;'Q_n-social good or welfare should be noticed. Very few social . ceri1cCI not with individual conduct but witnthe ways in which changes or laws arc agreeable to or advance the welfare of all '. vasmo"{:-in~~;i[S:~f.~~tr~~~,~:1·tTstiUTwli;CFi~v-~iCcTts

individuals alike. Only laws which provide for the mo~ I spedarrcrevance in the entiCISm of law and of other public

clc:m~lltary needs, such as police prot~ction or roads, come near:

I

or social ,institutions. I~ is. the mos~ p~blic and the most legal to this, In most cases the law provides benefits for one class of the virtues, Ih~S.PDD9.Rl£.~.

..9f--L':!~.£S..95!..~9.L<;.::<

.

h?-_\}.aJ..~.s

of the population only at the cost of depriving others of what

I

idea o.L.!DQrJ.\JjJ:,y;'and not all criticism of law made on moral they prefer. Provision [or the poor can be made only out of the ~ds is made ill the name of justice. Laws may be e011-goods of others; compulsory school education for all may dcmncd as morally bad simply because they require men to do mean not only loss of liberty for those who wish to educate I particular actions which morality forbids individuals to do, or

their children privately, but may be financed only at the cost 1 because they require men to abstain from doing those which of reducing or sacrificing capital investment in industry or old- " arc: morally obligatory.

age pensions or free medical services. When a choice has been . It is therc!~!:SE~~lY...!o charact,;ri2'~_i!}~~CJ:ms,

made between such competin~ alternatives

ft

m,:y be d~fended ,:,:::: ~ho~yyri!2£iple~, D:.~_alld,?.!!.l-.D.g:;~ucliiiIlg tQ.1.h~wldu~.Lof as proper on the ground that rt was for the public good or the ':';'" .• j.!ld~tidl!ill'L!~h~£ll.l).f.L92.1,g12-l1.!9!~ and mak~~s:.~.morally 'common good'. It is not clear what these phrases mean, since [:((, .' obltgat~..:_Two related difficulties ~lrront us here. The first

\;

~:

'

:

:'

;

:

>,

:

:,

~

~~

·

~J

l

'

;

2. MORAL AND LEGAL ODLIGATION

i 1;111

H

·

~".~t· ...•. .,.:...

IG.l

J

USTI CE AN J) ,,10 RALlTY

is that the word 'morality' and all other associated or nearly synonymous terms like 'ethics', have their own considerable area of vagueness or 'open texture'. There arc certain forms of principle or rule which some would rank as moral and which others would not. Secondly, even where there is agreement on this point and certain rules or principles are accepted as indisputably belonging to morality, there may still be great philosophical disagreement as to their

status

or relation to the rest of human knowledge and experience. Are they immutable principles which constitute part of the fabric of the Universe, not made by man, but awaiting discovery by the human intellect? Or arc they expressions of changing human attitudes, choices, demands, or feelings? These arc crude formulations of two extremes in moral philosophy. Between them lie many complicated and subtle variants, which philosophers have de-veloped in the effort to elucidate the nature of morality.

In what follows we shall seek to evade these philosophical

diflicul tics'.

~_~lJ.J1l!g:~j9.Q}1if.Y..~is:._

.

.u~s.~~.~~~~.}?L~

,

m7

",

porta.X:~~~1J)-'11!mj.lyJ.t;Q!J.l~~l.!:.\i!?S..!2.!S~sb.~!J,g£~,~y'g!..~,!l!.~r:y

C1'i'aract~r.•.~ moral .offences' ~..:

F

orrns

_2~.;;:.?~t..Q~iS.U.:'~~_

,

four carchnaTIcafurcsW1UcTi are constantly round together in

those

Eri~~~

ruJf~<;.~crsta!iaarcrs~o·I'-c~~5.ru§£~~§,!C~ii~ ,

most common!i: accounted lmoral''':"'Tli8c[Qur Teatures reflect different asp~cts of a'CiiaractC'riStic and important function which such standards perform in social life or in the life of individuals. This alone would justify us in marking off what-ever has these four features for separate consideration, and above all, for 'Contrast and comparison with law. Moreover, the claim that morality has these four features is neutral between

rival

philosophical theories as to its

status

or 'fundamental'

character. Certainly most, if not all, philosop'hers would agree ~l.LtlW..'lc.J:Qll.l:...fcat.ur-cs::w~~~m3~~[iy:uJ.Q:r:arrnr~::or

princlR!~though they would offer very different interpreta-tions or explanainterpreta-tions of the fact that morality possesses them.

It

may indeed be objected that these features though necessary are only necessary and not sufficient to distinguish morality from certain rules or principles of conduct which would be excluded from morality by a more stringent test. 'vVe shall refer to the facts on which such objections are based but we shall

I Below, p. 169.

!

,

!

\

~

I

!

::: -.

f.ti~~U

~':~

...

!

~T~

;

:'

c",,: JUSTICE ANIl IdORALITY Ifi~)

:,Yr;'

adhere tothe wider sense of 'morality'. Our justification for this

::::

:

r

,

is both that this accords witl~ much usage and

v-:

what the

;;',:,::::word in this wide sense designates, performs an important,

','

.,

<

:

distinguishable function in social and individual life.

0''''''

We

sllalJ,,~.QJ.\!iiQ.y.~~ur..?tJll-~~,QcSi~J.•

p~.sp,g.!.l~~!t2

..

!"ills~1.r.sf~!!.s.9

,

~

to

as~~~o.::~E~Y:,

,

9.L~.g~~~r.

..

~.9.fi£ll'.,.9

.•

L,~)}.~:.~S~SE.t.ed:"9.r.,'con-~.iCro.8r..uJ.i.tf.

,

.

gL.~n...sl..c;.t~wJ.

.

...s.9.s:.i:1l..g.r.S?.,;!Jl~.rhos..s$

•.,p,~.r~se"s

~er tq~~1~.I2~~!X..,9~.9L~c,C;>P'QJ:!E,L~~~i<:I~"~E~_:,,::~9$.~~_.~.Q

__

a

:!·E~2,",,!.?

.E~s.0.!:!

..

!l.?.f!~_~Y..i~

a~d are to. be contrasted With. th.e ,mor~l

principles or moral Ideals which may govern an .inclivid ual s life, but which he docs not share with any considerable number of those with whom he lives. The basic clement in the shared or accepted morality of a social group consists of rules of the kind which we have already described in Chapter V when we were concerned to elucidate the general idea of obligation, and which we there called primary rules of obligation. These rules arc distinguished from others both by the serious social pressure by which they arc supported, and by the considerable sacrifice of individual interest or inclination which compliance with them involves. In the same chapter we also drew a picture of a society at a stage in whieh such rules were the only means of social control. We noticed that at that stage there might be nothing corresponding to the clear distinction made, in more developed societies, between legal and moral rules'. Pos-sibly some embryonic form of this distinction might be present if there were some rules which were primarily maintained by threats of punishment for disobedience, and others main-tained by appeals to presumed respect for the rules or to feelings of guilt or remorse. When this early stage is passed, and the step from the pre-legal into the legal world is taken, so that the means of social control now includes a system of rules con-taining rules of recognition, adjudication, and change, this contrast between legal and other rules hardens into some-thing definite. The Efimary rules of obligation identifisd ~hrough tllr,_Q.fIicial..s~~II...ill~ set 2paI:t from

{ltru:.r...rill.S1,

,which eontivu<;

tQ...csist side

by~t.J.uhose olliti,t11y rcc<?E-~zcd. ,In fas.U!J...9-'Ju?~n.wwLi.nd~~Jl!LSQ.mm~ities"'Y.~sh

reach tI~is stags: ...!1lel:£..~r..~:'!1upes

..?r

s~~l rule a~.5!..~~:

i~A~~s.~.ll.~<!£"

the lcgi11~J.ill~-9.rly some of tllese. are usually thought and spoken of as moral, though certain legal

-~~~'~'.

~-

,

~

-

-~--~~~~~~~~~~-~~-

-

~

.

.-

--~-~---

.

-

.'---

----

-

-

---

-IGG JUSTICE AND MORALITY

have used the word 'moral' to designate all non-legal theorists

rules.

Such ~non.:!.$al_r:.1,!]J:.~~1X..g.ct.Ai.g;!1&1diili,~,9--:~~.?-9.s1a_~~~£Lsg...~E ~;~.~J§en.L'Y~~YJ •. Some are rules of very limited scope con-ccrrnng only a particular sphere of conduct (c.g. dress) or activities for which there are only intermittent opportunities, deliberately created (ceremonies and games), Some rules are conceived as applying to the social group in general; others to special sub-groups within it, either marked off by certain characteristics as a distinct social class, or by their own choice to meet or combine for limited purposes. Some rules are con-sidered to be binding by virtue of agreement and may allow for voluntary withdrawal: others are thought not to have their origin in agreement or any other form of deliberate choice. Some rules when broken may meet with no more than an assertion or rc minclcr

or

the 'I'i!;ltt' thillg to do (c.g. etiquette or rules

or

correct speech), others with serious blame or con-tempt or more or less protracted exclusion frorn the association concerned. T,:oygh.Jl!J-n..~£...~£!1~Coulc;L.b.k..S:;!?~~r~.r.~,~!~j.,

,a conception of the relative il!lportal~.s~2...~~!i!.?w:.(;r,Ll.Q._1.,,1.!£~.q· 9.dlerent ~~ule.;;-E.. rcIt<;..et.ssl.J?,?~!b:..l...r:..,lb.~~~~~£",9.f 2?E-crifiS,.eof private in.lS~t.~!J..\f.ll1h£.J(~!;1~m1?J.t9rlo•.~msU.b:'!!4.Y.(.sigJlt

.2£..~.Qf.i.<'\l.AL.c.s.s,w:c..LQ.t...<;<'9.nli:U:m,ity. .

In all societies which have developed a legal system there are,

among its non-legal rules, some to which supreme importance is attached, and wrlich in spite of crucial differences have many similarities to its law. Very often the vocabulary of 'rights,' 'obligations', and 'duties' used to express the requirements of legal rules is used with the addition of 'moral', to express the acts or forbearances required by these rules. In all communities thcre is a partial overlap in content between legal and moral obligation; though the requirements of legal rules are more specific and are hedged round with more detailed exceptions than their moral counterparts. ~r~~ri~~l.!Y..J.

m<l!'.:~lol.?Jjga,;-ti?.r:-:."l!l~s!..~~

likS~!D'Js.g:~r.\!lc~.~.l]'Cf;.W...!Y.h~ti~.gJ;>.~_,g.Q.ne o~!...~s.£2!l£..in circum~..sL<;'£E~!:.QY.J"..ss~i~j!!J:.he

life of the rou l!!!!.1SLthan..i.u.l".m:.c;:....!?XjQJ·.£I.!!:.mc;:~f.!~iticM.rl clibe~'!y" se eS!.~~:. W?at such. rules .require

=

either forbearances, or actions which are simple in the sense

that no special skill or intellect is required for their

perfo~-:

• i

,m~1!1

~:

m

;;:o;t:;~,::;

,

'.

.IUSTI CE AND MORALITY -167

·_

_'J

.

\

_/

it,.

_I::'.

):k

_{; I}

·

·

nance.·

Moral

_{__ •._.H.,.'~_.h'I~,,,,.~,}oblications_{••tnrl"'r.<.I"~~''''._'f''I_ ••,,,M~''~•} like most

lccnl

_{••,,,,,,,U}

oblications

_{',,,·~·4u..::._t:::.('.~:,)~K}"rf>

-:~~;(/~;~itl;itl..g}'~_~ill;?~~£~Y_0.Lm;t~lt9.!:..rn.!l..li.\.<Com pliance;l.\}.l~ wi th these.

,.-_,_-moral rules, aswith lcgal rules, is taken as a matter of course, so that while breach attracts serious censure, conformity to moral

.., '.obligation) again, like obedience to the law, is not a matter

for praise except when marked by exceptional conscientious-ncss, endurance, or resistance to special temptation. Various classifications of moral obligations and duties may be made. SOIll!.:belong to relatively distinct, enduring functions or roles, which not all members of society occupy. Such are the duties ,~ of a father or husband to c~re ~or his fa.mily. On·the othcr hand,

I'

~

~;;.!:~~~.?:.II-.2~~.~~~i,.<!.?~.~g::!;'?'?'1.,:::'.~1,~..~,~~.~l.

..r.:?_.r

..

~_;tL~d.H!..!~.~~e ~ c2.!.:.£.~,!.x.~~.~l}..,),\l,Y.l-'-•)K

.t~Eg

.

l:!g!~,?''y,_~,,}[C;

.••.

\S.~g:...~.Q.~~.9.s.t;t~nJ[.

()m..vio-"::'''~

.

~~~/._ ..:::t;.~...

~l?,7~i.a.~..

9

.

-p'!_jg~t

.

~9.I:\~.:~::!_~,~.l::,_~,~

,=~~I:,~SI.

X

"

!:l.~_~.~,

,~;

y \ c:. 1~1Cl~!'.J?Y..~~!1J.f:,1;.I~~g..!.'?t_0. ..~P.s<::~~!..:~~I.~~!g!"

,

!.;'i,.

:.~:;g!

,

5

>

'

!.!~~~,

(~

rs

:

g.

.

~l?llg;l·-

.

l~~.~!2.J.t;.\:P,_pt:9nl.!~_9_.pr return services rcuctcrcd ). - .

The obligations and duties recognized in moral rules of this most fundamental kinel may vary from society to society or within a ~ingle society at different times. Some of them may reflect quite erroneous or even superstitious beliefs as to what is required for the health or safety of the group; in one society it may be a wife's duty to throw herself on her husband's funeral pyre, and in another, suicide may be an offence against common mo:alit~. There is a diver~ity among moral codes which may sprmg elther,f:om th.e peculiar but real needs ofa given society, or fro~ supcrsti tron or ig norancc. Yet the social morality of societies ~vhlch have reached the stage where this can be distinguished from rts law, :tlways includes certain obligations and duties, requiring the sacrifice of private inclination or interest which is essential to the survival of any society, so long as men and the world in

-which they live retain some of their most familiar and obvious ~haracteristics. Among such rules obviously required for social lt~e are those forbidding, or at least restricting, the free use of vlOle.nce, r~les rC9uiring certain forms of honesty and truthful-ness In?eahngs With others, and rules forbidding the destruction oftanglble things or their seizure from others. If.conforrnitv with t~se most e!cmentaruules were not thought ~atler of course am~llg any group of indivigll2-h..J.oo!1gjn cl~proximi!X. to ~~ 1other, \~~~~oubtfu.l of the..Q.Cl,.<2:W..!ionof the

Jj'

up as a S?Clcty, and certatn that l.!.could not endure for long.

.5705.0 -" ----~-....:;:.

I

II'

1·'li~I!.!i

'/

,I,

:1 11:.'; I

,H

II, '·,Il 1;/ 1,'·1

:~ H

:;q

ij!/

"I

",if

1

111

j\~I~',

. :~~i\

~

1;li'~l;i'

_{" 1,,,,,,:\}i:t~ll: ' '~,i i I.l,.!t ;

!in

II

IGIJ JUSTICE AND MORALITY

M.Q!:'£"1L~ud.j.cg.al..c.ulcs~.Q...c..QbliK~!i9E..E;r.!.s!.2.Y.!y;)~~!:..!h.9:~Jore

«£E.~MiD.g

...

:li.ro..i1mtks enough to show that their com~~-n

vocabulary is no accident.

~L..rn.<;;y.J:>£...~v.;E.~~ri~;;:,9:

...

as

£?J.~~~

1!~h..~~~;:lik<: ..~ ..

~!~.,!!~~X.~~E.?t',~,?~,SS~:::~:t~~~~fH(P:,~g~

~?2Spendenl!L.<?~~MS?ns2:.!..2L.!!:.s.l..I}.g,~uJ..lJ.~1~l;t9».ll..(L!.1,~~-!~.re

~.£EQ.U£9..p"y-~S!:!Q.~§.o•.dN.,J?r.S~~!-!.fwcJ,m;,,£QJ.!(<2!J.ll.~,h''';,u~9.v.mJ.~~!,1ce with both legal and moral obligations is regarded not as a matter

for praise but as a minimum contribution to' social life to be taken 'as a matter of course. Further both law and morals ~.~~1~,4,<;,[1l,1cs, gQY.9rrong-,th,~".b,Sh~v.,~PH,r._.9T3P:~Xxi~~~!i:,i~:',~itu a-t\9p.:s..,constantly .rccurring, through9HtJifs: ..r.a,~,hsr:.~haX1..special activitiesor occasions, and though both may include much that is peculiar to the real or fancied needs or a particular society, both make demands which must obviously be satisfied by any group of human beings who are to succeed in living together. Hence some forms of prohibition of violence to person or pro-perty, and some requirements of honesty and truthfulness will be found in both alike. Yet, in spite of these similarities, it has

seemed obvious to many that there are certain characteristics which law and morals cannot share, though in the history of jurisprudence these have proved most difficult to

formu-late.

TIle: JIl0~

t:.

ra11101IS_~_t.!.s!:'2.P.~__~o.~~;~~~'-;!'y';...~I:!._~!,!}.!)}!~~~!,x_.G~~Ll,!,~,n

ili!.:.!.!:::i~ill::\L~\;,~[ai:rli;u".l)J;.t~1:ullc.,J.fl<.:f.U'.¥_.1Y.lli,dl._iJ:;;il;l:(,~_l.l,Wl~"wJ

l,iLe

)egal !:..1ll.<;,~"Q.ulx.J:c.qllirc.:..c4tc:.(,n,aLb.cha:-liQJJ.l:..an{LJJ,t:ki.n.d.itrc.n~,!),t

!Q...!h~~mQ,t~y£.~j!}.t~Elt'?J.1~

..

2!:A.?.~h.s:,,!.!1tsr.}}l1;!: ..

2£S£m'p'E;~~!::

_,:p

ts

.££.s2,nd~~.~~~m.9J1lLL..?E....tJ.1S_,!llh~I-b.~sl..A9....¥n9.t.~rs.gB.ir.!!.",,~,ny

,;'P.~s:lfi~~!;;:;.t9.x.:n~L!1,~.tiQ..I2~J?_1J.t •.9.!JIy'~,~_g,qgSL~jJl.,Q.r~.D!;,m~S;,L.~!,1.~~n-~t~9j12...9J-lJJ,O,tiV.c..This really amounts to the surprising assertion

that legal and moral rules properly understood could not ever have the same content; and though it docs contain a hint of the truth it is, as it stands, profoundly misleading. It is in fact an inference, though a mistaken one, from certain important characteristics of morals, and particularly from certain dif-ferences between moral blame and legal punishment. If some-one does something forbidden by moral rules or fails to do what they require, the fact that he did 50 unintentionally and in spite of every care

is

an excuse from

moral

blame; whereas a " legal system or custom may have rules of 'strict liability' uncler which those who have broken the rules unintentionally and

I"

r

If

I

i

II

i"

Ii

rlil

I

'I

, 1

l~t:

jl 1"

1.1

I

.u 1 of :\;::':::'" 1,;;;".,,'.:',

djlj!~'i;:.

'IA'J":!"'-.!";"-· !,""::_"ii_'~':!:.i.;/: .:

~i1~~'

,'" -: •....,: v',,' r!" .•.~)

~17'

..t.;:...{0r' .C-t .•' ,..?I'~,-~.

'-JUSTICE AND l\·IORALITY IGg

without 'fault' may be liable to punishment. So it is indeed true that wh ilc the notion of 'strict liability' in morals comes as near to being a contradiction in terms as anything in this sphere, it is something which may be merely open to criti-cism when found in a legal system. But this docs not mean that morals require only good

intention,

will,

or motives. Indeed to argue thus is, as we show later, to confuse the idea of an excuse with that of a justification for conduct.

~D$n~~J.~~E}l~~x"<;:-.~~.,~?ems.~hL~l"g.~q,f..i.DJPQ!:,~;:.S;.9.,,~~.r.~S~

!,~r.s£

in tl115 confused <lrg}l,rn.9,I:n;the vague sense that the difference

bct-;ccr{"E'~~"~nd

morals is connected with a contrast between

the 'internality' of the one and the 'externality' of the other is too recurrent a theme in speculation about law and morals to be altogether baseless.

13-..;;~!~£Ll,J.!~!.l.rli.~r().~~s..it

•..

~},c..~b;:JLtre,alit

E...~S~!TI.p.m9.i,q.1J~.-.~.~g,K~n9)L2L.[9..!.I..LSg..r.gin.\lLr.c;;J.~\\:.(1"k'lt~!,s.s ~I:.ish...S211~s.t,i:'y.c;.!y"...:'i.£.l:Y,~...

t!?,_~i~~,i[.l,glt.i!:b.~!ng,r

..?'.!i~y...

D£LQP)y'~[r;9~ID Jega!L~tJ.~.!?1JL(S.9,T~.Q...\b;;,~J9.I2J..2L~£.s.i!}LX,\lJs.·

.ill...!..!!!I.!.!!!,.{f!!.!.£:;~'1'?_••:.!~y...

!!;!~L!!:..'l..

£~::S.~.!lL.f!;i\lklr...c;,..o.c.a.rp!...ro.oLll

~~....:'!E~!~~,'.~I.:~U,~_,.~~~~t.!_,~.~."l~..2:::g~~(l

;~~.~JL

o~!f~t

~.J?.Q.I'..l'm~s

...

t&,.m'1i.m3\.~!:"_~~~'p..s~::.

bo!I.U.~.~~~,...?-ncr vague. Yet this feature cannot be omitted in any faithful account of the morality of any social group or individual, nor can it be

mack morc prccisc, It is mall i rest.ed in many ways: first, in the

xirn p l« {;.et th.u. 1I10ral standards an: maintained again!;l the

drive or strong passions which they restrict, and at the cost of sacrificing considerable personal interest; secondly, in the serious forms of social pressure exerted not only to obtain COIl-formity in individual cases, but to secure that moral standards are taught or communicated as a matter of course to all in soeiety; thirdly, in the general recognition that, if moral stan-dards were not generally aecepted, far-reaching and distaste-ful changes in the life of individuals would occur. In contrast with morals, the rules of deportment, manners, dress, and some, though not all, rules of law, occupy a relatively low place in the scale of.serious importance. They may be tiresome to follow, but they do not demand great sacrifice: no great pressure is exerted to obtain conformity and no great alterations

in other areas of social life would follow

if

they were not ob-served or changed.

Much

of the importance thus ascribed to the maintenance of moral rules may be very simply explained on ','.

•••!

I7n JUSTICE AND l\IORALlTY

agre.e.ab1y ra t~onali~tic lines; for ~!Lj:h9.!!g!L\h.t;.y-dc;:. .ln!\nd s~c:e of pr~vgj:~J.!ll~S.~ on t~c

p~oLthc..p

,

erA.Q

.

U..J2Q.lJ,nd,

cO,mphance

~E.£~_

secures vital interests which all shar ahke~~ t

~

.

~c.~_.~_

e~Q~!__

~.~·i~c.c~tY:w:'Q!f~ll~iJ~£r.~.~~~:}rpl·~ ObVlousliarm or by mamtauung the fabric or a tolerabl

~~[~.

13uI~!1i_9.ygE thg,,:,r:~i!'Qlillifr....2Czfi~sri::~Q:~ifi

~ora~l!Y..!.~Jl!?"~~~~~~ •.

!t£.'!.l:..~~Y1.<?~~_~~,

may be d'cfcnded

In this way, this simple utilitarian apprO<lc1i-is'n'oC~i:rw'a s; .

~!-.§r~i

?or-;-,v1icrc~irl5,~sTlou

'

id"·lt"Gc·-takcri.-io-rcprcs·cnt

·

tl~' ':~ .: pomt.ofvlew of those who live by a morality. After all, a mos~

I

prominent part of the morality of any society consists of rules

~oncerning sexual 'behaviour, and it is far from dear that thc Importance attached to them is connected with thc belief that the conduct they forbid is harmful to others; nor could such rules always be shown in [act to have this justification. Even ill a modern

..19~l£!Y...Y'Jl,k.h.•

has_cc.ascd..to..laak.~Q~lJ),~~••

mmllirtY~·as

.

(fuiriili~Q.td~.kM£.\lJ.a ti.q.u..u.,('.h.\lr..m[lJJn"~~..i.Q...9.!h£~!lq~.r,;;_9.9 ~CCOll.!1L&L}~~~2P.~:.~~_~!,S:.S):£c.L~9_~.!.~!.L~g)!1::.tiq.~,.of sexual behav.lOur such as .the common veto on homosexuality. Sexual functions and feelings arc matter 'of such moment and emotional concern' to all, that deviations [rom the accepted or normal forms of their expression easily become invested with an intrinsic 'pudor' or importance. They are abhorred, not out of con~icti~n of their social harmfulness but simply as 'un-natural or m themselves repugnant. Yet it would be absurd to deny the title of morality to emphatic social vetoes or this sort; indeed, sexual morality is perhaps the most prominent aspect of what plain men think morality to be. Of course the fact that society may view its own morality in this 'non-utilitarian' way docs not mean that its rules are immune from criticism or condemnation, where their maintenance is judged useless or purchased at the cost of great sllfTerilli~.

Le!~al ru lcs, :IS we have xccn , ilia), correspond with 1I1OJ':d

niles jilt he sense or req uiri ng01' Iorbiclcling the same bcluwiou 1'.

Those that do so are no doubt felt to be as important as their moral counterparts. Yet importance_~~ESE~'tO_~t;.be

status of all legal rules as it is to thf!!..2f~rals.

I-:

leg,~J..!Y..1e

~ay

6~

generally thQu..g.bt quite lIuiwpJl!;tan.L:!.2.-!rEil1s'ein; md~ed It ~av gCDcrallY~~~1.iLill.QuldJ':>-~IT.P.eal~9..:

.yet It rcmams a

Jrg;J.l

r\lle uIJ.!iLi!j1.l.<aJs.!.lksL.It would, on the

;.\\!i;;~:'

" . JUSTICE I\ND ~101tJ\LITY 171

'~.'.:-.i'..~·..!.:,~.i,:i.l'.;.: .~~~e~;~~~, e~~na~~~~~l:on~h!~~~~:u~~l:

i

~~~;~~~~~~~;o;~~Z .

;;:'..'... 'or worth maintaining. Old customs and traditions now

main-tained merely for old time's sake may, indeed, once have had the status or moral rules, but their status as part of morality has evaporated together with the importance attached to their observance and breach.

.ill)

Im1JJJl11i{)!_Jr.p.!!!..,'¢!.l0.!..L(J...l~..dJlWgf... I.t..~s..~~~.<;ctc~~is ...

£La

~~~~~.~

.

~~_.!I}~~

.

.

.

~.~~v.J.<:g~!.,X!:ll~L.c;.Il.tl_b.cjQ.t.to.du.c.cd...•

o.lrl

.md o~::.12g£g ..9X.:r!:=.P.s.<.':1.~.~..l?y~9..~lLQ~.m~c..cnactmenr•.~.y.~!1_~h9..\!g"h s9.!~e..•l~~.s:-:!~.~)'....~)~ P,~?~.S~<:9~...[~!?.'lU;).!.~p'g~__

P

.

y.~~

.

.

_Wr.i!

~

.

~D_

co n-s~~~.};.~~.=.:U!g the co m pet~'.:.s~.._

!?L

~h_e_..~l,I.P.f.C_m~...lcgi~!.a..~\lJ:e. lb:...s~t.r.~;'Lt.Jii~id);Lt.m~Di.Cpr.inciRk:;'~t;:<7.r.IMt_.bc.~brought.int0

~q-..2;_~~.~~S'S?'

..?'r.

~,U.l.'r.~.~!1.~.tc:A~gJhi~,.w;J.y.To assert that this cannot ue 1S not, however, to deny that some conceivable state of affairs is actually the case, as the assertion that human beings 'cannot' alter the climate would be. Instead this assertion points to the following [acts. It is perfectly good sense to say such things as 'As from I January 1960 it will be a criminal

offence to do so-and-so' or 'As from IJanuary 1960 it will be

no longer illegal to do so-and-so' and to support such statements by reference to Iaws which have been enacted or repealed. By con.trast s~'!.~l<;'~£'r:!.!~a.;~ 'As [!:.<?E!09..~~~iIl no 10~£.I' ~~l.~!~I ...!.~~~<?_~.?_-"~~~:~~?!...:g!!._~_.e.~i~~y""'~~~.j.L~~n;te

~..Q1.Ql:.1L~g_st.9-:~.Q.:'~Q~I;;S.P~-(ula:n.UWl

p.l.!i.JJ;L~.\lRJ2grLthese

9'y'

refercnc~_1~._0_~!:!?.Sr.:~.t.<;_<.;.r..~fJP.)..!;nLW9_U.l.dJ~~._a.llQDishiog...p, m:p.-doxes, i£,!I2l.~.S!?:?.s!<;;!~:~Forit is inconsistent with the part played

b,Ymorality in the lives of individuals that moral rules, prin-ciples, orstandarcls should be regarded, as laws arc, as things capable of creation or change by deliberate act. Standards of conduct cannot be endowed with, or deprived of, moral status by humanjial, though the daily use of such concepts as cnactrncn t

.uid l'I:pcal :;!IOWS 111:ltIIIC: ::al1l(:is nol tru c or law.

. Much 1I10l'ai philosophy is devoted to the cxpla n atiori or this lcature of moral it)', and to the elucidation or the sense that mo:ality is something 'there' to be recognized, not made by .;.:.;..;;'~..•' .:..;.' '~~phlbaenraatt.elu:-man choice·I.Bu.t thcffact itlsc1fas dis:inct frhomits "".;.'" ~ IOn IS not a pecu rarity 0 mora rules. ThIS is w y this

....,. . rcatur f }' hi' .

-;l::,:l:.:,.:...

»

,

_ .

co mora lty, t ou~ exceedI11g!Xl!!!p'ortant cannot scrve :gJ11iSTi:;\·:.bi:ltscllto disting!!Jsil morality (rom ,Il! other f~rlll~

Qf

S~

lilii1

j~

:

.

.

.

.

.

~

.

' .

·

Ilt;~l;~!::\!;;'~:\;

,

':.,

r

:

·

u~r~!}i~;'!

;·

n~

~~

:;

:";::·

~:

-

--

·

~~

:

172 JUSTICE AND MORALITY

~~~.:. For in this respect, though not in others, any social tradi tion is like morals: t.!:~~-Eli.g.12.JO.Qjs.i.tlc:aP.'lbk..Qr.cnac: .lIncnt "QE...!_c.r..t;..<J,LRY.-iU11.l).;m.•The story, perhaps.fi.q.(, apocryphal, that

the headmaster of a new English public school announced ...

that, as from the beginning of the next term ,

it

would be a tradition of the school that senior boys should wear a certain dress, depends for its comic effect wholly on the logical in-compatibility of the notion ofa tradition with that of deliberate ena~t,?ent and e~oiee. ~~les

.

,

~~~g,~l

.

~~_.~!,1~

...

~.I

~

.

!

l~....1t~

.

J.c:

~

S

..()C~~~"

tri!i~.~~9~~..l2,y'.S

!

'

:9~.~~g!

.

.

.~

,

~!E!K

;

l?E£~S

~!

.

,~

<;.

r).,

.

.

!;.C ;J~I)!::-.

..

t

Q.b

G.'

px;~c;

tiscd , ~~~SL~!.!;.<:-~)'i.r;~;and" rules brought into being or elimillated otherwise than by these slow, involuntary processes could not thereby acquire or lose the status of tradition.

. h

}2::..J!S~r.~~!!..~~9..r:~IJ~,~R(Ltr..~ght.~9.!l~S._,~~2~~!"'.P'.S

..

,.9j{9.~~ly S...~Dg£~)_~LJ!:..\x.~••ma.:.yJ?~J~g.Y_~.sgL~.~.~i.y_e~.\;,n.~~Jrr.H:;Ulmst.not,be.lJ

P~':;~~j~!!l~~~.~Lf!:o.~ .•.

?~L.[?..:r;:t_~

.

_!?LSIE~

.

r

:

!g~

I

.

nd eed

..

though a moral rule or trad'ltlOll cannot be repealed or changed by deliberate choice or enactment, the enactment or repeal of laws may well be among the causes of a change or decay of some

moral standard or some tradition. If a trudi tionnl practice such as the celebrations on Guy Fawkes night is forbidden by law and

punished, the practice may cease ~~nd the tradition may dis-appear. Conversely, if the laws require military service from certain elasses, this may ultimately develop a tradition among

them which may well outlive the law. So too legal enaetmen~

I

may set standards of honesty and humariity, which ultimately'

I

alter and raise the current morality; conversely legal repression of practices thought morally obligatory may, in the end, cause

the sense or their importance and so their status as morality to

I

be lost; yet, very often, the law loses such battles with ingrained

I

morality, and the moral rule continues in full vigour side by side

with laws which forbid what it enjoins. .

These modes of change of tradition and morality in which I

the law may be a causal factor must be distinguished from I

legislative change or repeal. For though the acquisition or loss of legal status clue to enactment may indeed be 'spoken of as the enacted statute's 'legal effect' this

is

not a contingent causal change, as the statute's eventual effect on morals and tradition is. This difference may be simply seen in the fact that while

it

is always possible to doubt whether a clear, valid, legal

enact-.~·~j:~fi~-;~.. i~.:·

If')I<'1";:/,·I:

\l\!)'th);'';;;,;'

l,i.;l.j,.~.

:i;'!:

...

mcnt

will load

:oU~':~~,:;~~

,~o~

,

~;~::'mila'

doubts co~:~

, ." be entertained as to whether a clear, valid, legal enactment has

;;:

:

.;

;

;i·

changed the law: . . . .

;:i

'

:

:

2!

.

1

;

.

~;:

The incompatlblht~l)f tl~<!.<2..2LIl:lOr~!.iJ.~r..t.radi.tion .w~th

:

."

;<

.

: .

•

that of el!.~~!£:!diy_ckliGW.1c...c.U\ll;.tnl£!lh..!!!'ld.~talso be

dlstlll-.... • .gU@ledjLQ!1LtJ,ldmrrUwil;y_£..cmferr£'~_.2!!....0~~ir: l~ in so:r:r:e ~j!£ll1~._by.~tb.c_1:c.s.ttic.tiy'c_<;).~);!.~esof a constl~~~~uch. Im-munity is not a necessary clement 111the status

01

a law as a law, for this immunity may be removed by constitutional amend-ment. Unlike such legal immunity from legislative change, the incapacity or morals or tradition for similar modes of change is not something which varies from community to community or from time to time. It is incorporated in the meaning of these, terms; the idea of a moral legislature with competence to make anJ change morals, as legal enactments make. and change law, isrepugnant to the whole notion of morality. When we come to consider international law we shall. find it important to distinguish the mere de facto absence of a legislature, which may .be reg-arded as a defect of the system, from the fundamental

inconsistency which, as we have stressed here, islatent in the idea that moral rules or standards could be made or repealed by legislation.

iliil....T!.9

.

.lJ.{!lt.{(T.Y.jjW:';{!.r.W;~SL7JJ..O"r:El2iI!llf!.l:.

Thc old co ncep tion that morals arc exclusively concerned with what is "internal'

while law is concerned only with 'external' behaviour is in part a misstatement of the two features already discussed. But it is most often treated as a reference to certain prominent

charac-teristics of moral responsibility and moral blame. If a person whose...l\~tiolhJ.!:!-.s!g.~A£b....s\'.!!'!.!J.!:.~Loff£Q.decl_Sllmill-~_m.?ralr~.s:;; ~ri ncj.P.le§....1~Lc..s<:.s.sl.LLns~~!~Q~:~~~L9..lb.~. un in ten-tion~:!!sl in~.J?i!~D.L~ l?re£..~~DRnthat it,was possible for_ him to...takc •...h~...is-c..'\.C.l,l.}.CcLfrom..m.ur:.'.\Lr~onsiJ;>i!.i.tY,_andto blame him in these circumstances would itself be considered morally objectionable. Moral blame is therefore excluded

.. because he has done all that he could do. !!1..any developed

.:;;'. legal system the same is true up to a ]?ojllti for the general

;;h./';·;:;

·

"requirement ofmens rea-i~e~ent

in

criminal responsibility Ji;::::.~;':<:;.designcdto secure that those who offend without carelessness,

i!l{~:~;;::;;"·:!unwittingly,or in conditions in which they lacked the bodily

l~ITj(;2\i;iL~~:~r.mentalcapacity to conform to the law, should be.exeused.

~

~~il

~[j

\

'

:

"~'aiiF~;'I,!,:);..~

;

,

~m·r~!ljlIu

:

W[::·.

I

: