Law And Morality: To Consider Morals Undermines The Law

‘It is totally unnatural, it’s not morally right!’ I can imagine that this is the kind of argument and statement that one will hear on many an occasion when discussing controversial topics, such as same-sex marriage or whether it is right or not for women to have an abortion. The question one must ask oneself is, is there actually an accurate measure for what is or is not morally right? When we as humans attempt to understand what the law should and shouldn’t be, we have a nature that makes us think about what is ‘good.’ ‘A theorist cannot give a theoretical description and analysis of social facts, unless he also participates in the work of evaluation, of understanding what is really good for human persons, and what is really required by practical reasonableness.’ What this is arguing is that ‘if we are to understand the nature and impact of the natural law project, we must recognize that it yields a different logic.’ Cicero, a Roman lawyer, summed up natural law particularly well stating that, ‘The law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting… It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely…. [God] is the author of this law, its promulgator, and its enforcing judge.’ This is outlining natural law as having a universality, a ‘higher law’, and a discoverability by reason. It is through this outline that natural law thinkers believe that that morals cannot undermine the law, and in fact it is morals that make the law just and fair. Indeed, this is summed up by the controversial argument made by Thomas Aquinas where he expressed lex iniusta non est lex, in other words, an unjust law is not law or a ‘corruption of law’. Aquinas is associated with a fairly conservative view of natural law. However, the arguments used in regard to natural law, are ones that have been used to justify the likes of both the American and French revolutions respectively. For example, the American revolution was based upon the idea of natural rights for all Americans, as the Declaration of Independence put it through the words of ‘life, liberty and the pursuit of happiness.’ It is through this one can again look at the question of morality undermining the law – Americans in their revolution believed they had certain natural rights, and that was their own moral thought. Natural law thinkers would generally argue that this inclusion of the thought of morality bought about ‘good’ law and law that is functionable and moral at the same time. This differs greatly from Thomas Hobbes and his argument about natural law. Hobbes does believe in natural law but has a distinctly different view from Aquinas. He argues that people have a morality, but it is formed upon three basic laws of nature. The first is that of peace, second is that we mutually divest ourselves of certain rights to achieve peace, and thirdly, the mutual transferring of rights is a contract and is the basis of moral duty. This is where other natural law thinkers agree with Hobbes and believe it is necessary to consider morality in order to ensure internal peace and common defence.

Natural law and the idea of considering morality in law obviously throws up some contentious issues – so called ‘moral dilemmas.’ Roe v Wade it at the core of the issue, indeed it was a legendary decision of the United States Supreme Court. The judgement established the right of states to prohibit abortion to protect the life of the foetus only in the third trimester. The issue that comes with abortion is of course, how can the sanctity of life be evaluated? ‘If a human life is sacred, does a foetus count as a person capable of suffering harm? If so, how is ending its life distinguished from the humane killing of a living human?’ This is just a couple of the questions that are asked, it is an issue that could be debated on moral grounds for generations, as indeed it already has been. Similarly, to this, euthanasia and the legality of it, again brings into light the crossover between law and morality and whether or not to consider morals in the law is effective. Does an individual have a ‘right to die’? It is a complex issue obviously, especially when one considers the effective two strands of euthanasia, i.e. the acceleration of a person’s life through the likes of an injection of potassium chloride, or a withdrawal of life support. The latter example being one that is has generally been acceptable in modern western society. Though even this comes with its moral dilemmas. What if the patient is in a persistent vegetative state (PVS)? What it comes down to, particularly in the case of natural law thinkers, are what are the circumstances of the particular case? And are the courts really the most appropriate arbiters of cases in these particular instances? Take the famous case of Anthony Bland, who sustained hypoxic brain damage after an accident at a crowded football stadium in 1989, that left him in a PVC. Essentially, he was ‘legally alive’ though he could not function as his cerebral cortex in his brain was damaged through a lack of oxygen. The judge in the case described him as follows:

He lies in… hospital… fed liquid food by a pump through a tube passing through his nose and down the back of his throat into his stomach. His bladder is emptied through a catheter inserted through his penis, which from time to time has caused infections requiring dressing and antibiotic treatment. His stiffened joints have caused his limbs to be rigidly contracted so that his arms are tightly flexed across his chest and his legs unnaturally contorted. Reflex movements in his throat cause him to vomit and dribble. Of all of this, and the presence of members of his family who take turns to visit him, Anthony Bland has no consciousness at all… The darkness and oblivion… will never depart.

The doctors had applied to the courts for the chance to withdraw life support, but to treat him so that he would die with dignity and minimal pain. However, the Official Solicitor argued that this would constitute a breach of a doctor’s duty to the patient and would therefore make this a criminal offence to do so. In the end, the judges ruled that Bland’s life should be allowed to end through the withdrawal of life support – but it is not clear precisely what the law should be or ought to be surrounding this issue as all five judges had no clear consensus on such. In this case instructions had been given by Bland and family to end his life. But what if no instructions were available and the patient was in a PVC? This still remains unanswered, furthering the point of are the courts the best arbiters in cases such as these? Courts cannot escape these agonizing quandaries. ‘Their burden is, however, significantly alleviated by the existence of a “living will.”’ However, the general claims made by natural law thinkers are dismissed by legal positivists ‘who deny that the legal validity of a norm necessarily depends on its substantive moral qualities.’