Law cannot be understood, and certainly ought not to be studied, in a way which fails to take account of the social, economic and political contexts out of which the law arises and in which it operates.
We may be born with a “mating instinct,” but it is through social rules that the attempt is made to channel this “instinct” into the most commonly socially-sanctioned form of relationship — heterosexual marriage.
There are, in any social group, various “systems of rules” apart from law. How do we distinguish, for example, between a legal rule and a moral rule? In our society, though we consider it immoral to tell lies, it is not generally against the law to do so.
For Austin, the hallmark of a legal rule lies in the manner of its creation. He defined law as the command of the sovereign body in a society, and these commands were backed up by threats of sanctions, to be applied in the event of disobedience.
Every such social group must have certain rules which impose duties upon the members of the group concerning standards of behavior.
However their terminology may differ, anthropologists, legal philosophers, and sociologists are in general agreement that a legal order must, at the very least, provide for the authorization and recognition of legitimate authority, provide means of resolving disputes, and provide mechanisms for facilitating interpersonal relationships, including adaptation to change.
This example illustrates not only the reflection in the law of these developments, but also the way law may be, at least partially, used as an educative instrument. Road safety and motor-vehicle law may be viewed as a means of inculcating public awareness of the dangers of modern road conditions, thus encouraging the development of attitudes of safety-consciousness.
The dispute-settlement systems of simple societies tend toward compromise, or “give-a-little, get-a-little”; the official dispute-settlement systems of most complex societies tend toward “winner-takes-all.” Simple societies tend to be community-based, relatively self-sufficient, and with low degrees of technology and division of labor.
When a person gets injured in an automobile accident, usually he had no prior relationship with the other party and anticipates no future relationship. In such cases, the parties typically expect in the end that if necessary they will settle the dispute in court on a “winner-takes-all” basis. Nevertheless, in such situations negotiations and compromise may well take place. Bargaining and negotiations through insurance companies, and between the parties’ lawyers, will more often than not result in the settlement of disputes outside courts of law. But such negotiation is mainly to save time, trouble and, in particular, expense. Only in cases where the parties do anticipate future relations is there any genuine attempt to “give a little, take a little.”
Another supremely important factor was the existence of a free market in labor. This refers to a situation in which workers “sell” their labor in exchange for wages, as opposed to being “tied” to farms, estates and small, family-run manufacturing concerns.
Such class formations brought tensions. Not only did the middle classes make demands for a greater political voice in Parliament (something they felt was their due, given their developing key role in the country’s economic affairs), bringing them at times into conflict with the established landowning class, but also many of the working classes, conscious of the iniquities of the factory system (low wages, appalling working conditions, long hours, bad housing and the systematic exploitation of women and children), were beginning to make demands for improvements in their working conditions, and for a political voice. Hence, we see many cases of attempts by workers to form themselves into associations — what we would now recognize as trade unions — in order to press collectively for better pay and conditions.
In 1563, the Statute of Artificers gave power to justices of the peace to fix wages; in 1698 a body of journeymen were successfully prosecuted for having “combined” to negotiate with their employers over wages; the Master and Servant laws of 1823 provided for the imprisonment of any workers who “broke their contracts of employment” by going on strike; and various statuses outlawed “combinations of workers” throughout the 18th century.
Then, as now, recurrent unemployment was a problem for many, and if people wished to work for an employer, they had little choice but to accept employment on the terms dictated by that employer. Workers were in no position to argue or negotiate, for they had little or no bargaining power. The strike (that is, collective withdrawal of labor) was one of the few means of bringing any kind of pressure to bear on employers for improvements in pay and conditions, and it is not altogether surprising that the law was one of the principal weapons used to try to prevent any such disruptions which might damage employers’ business, and perhaps ultimately the whole fabric of trade and industry upon which the national economy had come to depend.
The former position perceives law as protecting social values to which everyone subscribes; the latter holds that there is no such single, universally agreed set of social values, but rather a whole variety of different social values, certain of which are protected by a less-than-neutral legal system in order to protect some interests as against others.
The very creation of a legal rule implies that some people may well be inclined to engage in the behavior it prohibits, suggesting that those persons may well disagree with the content of the rule.
How, then, did Marx explain the continued exploitation by one social class of another? Marx recognized that exploitation could continue only as long as bitter revolutionary confrontation could be avoided, and the most effective way of avoiding this was for the capitalist classes to maintain control of the official state institutions. For Marx, the state was “the form in which the individuals of a ruling class assert their common interests”; by control of state apparatus (government, law, police and so on), the interests of the dominant classes could be protected and perpetuated through the continued oppression of the working class.
In terms of capitalist ideology as expressed through law, private property is regarded as fundamental to social and economic stability; the values of justice and legal neutrality are presented as endemic in our legal system (obscuring the “reality” that law is in fact operated for the protection of the interests of powerful capitalism), and the legal system is presented by lawyers and politicians as providing justice for all.
In technologically undeveloped societies, there tends to be a single, consensually held moral code (the “collective conscience”) to which all members of the group subscribe. In a technologically advanced society such as our own, however, with immense differentiation in terms of social status, income, occupation, ethnic background and so on, it is unlikely that we will find such a monolithic moral code. Rather, there is diversity of moral attitudes on all kinds of social and personal issues.
Though having much in common, law and morality have important points of divergence. Legal rules, for instance, are backed by official state sanctions and procedures, whereas moral rules, if they involve any sanctions at all, rest upon more diffuse and generalized informal sanctions — we might call this “social disapproval” — as where, for example, neighbors may shun a person whom they have discovered to be engaging in prostitution.
Over the centuries, and certainly by the Middle Ages, the notion of the “law of God” came to replace the Aristotelian conception of the “law of nature” as the ultimate criterion whereby society, law and human existence might be evaluated.
But natural-law arguments were by no means always limited to attempted justifications for the social or political status quo. The idea that there existed a body of values higher than those contained in the practical social arrangements of a society contained the potentialities for revolutionary arguments, used to justify radical change in social and political structures, through the notion of universal and inalienable human rights. Here the argument is, at its simplest, that everyone has, or should have, certain basic human rights which civil government should respect. In the event of particular social and and political arrangements which do not respect and guarantee these “human rights,” people are justified in struggling against such regimes in order that their human rights may be recognized.
Nevertheless, the notion that states — or their political leaders — may be guilty of “crimes against humanity” has persisted, with arguments based on such notions being used, for example, against the US over its involvement in South East Asia in the 1960s, and against Israel over its treatment — political and military — of the Palestinian people.
This level of ratification was achieved in April 2002, although a number of major countries had at that time either failed to sign up to the original treaty (including China, India and Pakistan) or failed to ratify despite being a signatory (including Israel and Russia). The position of the US is that, although it signed the 1998 treaty during the Clinton administration, the Bush administration is wholly opposed to the Court, partly on the ground that an international court would undermine America’s own sovereignty over judicial matters potentially affecting its subjects, and partly on the bass of apprehension that US soldiers might potentially be brought before the court as a result of US military action.
The hold which the Church once had over political life has long ceased to grip very strongly: the age of religious supremacy gave way in which the period of the industrial revolution to an era of scientific rationality, in which the dominant philosophers of the 18th and 19th centuries, such as Jeremy Bentham, scorned natural law for its metaphysical, unprovable principles. In today’s secular, technologically advanced society where the role of the Church has decreased considerably in the lives of many people, natural law and its premises appear to many to be strangely irrelevant and too far distanced from the material and political claims and needs of the majority of the population.
Fuller argued that in order to create and maintain a system which can be properly be called a “legal system,” certain procedural requirements should be satisfied:
- There should be rules in the first place, as opposed to a series of ad hoc judgments.
- Those rules must be made known to all those affected by them.
- Rules should not have retrospective effect.
- The rules should be understandable and consistent.
- The rules should not require the impossible of people.
- The rules should not be changed so frequently that people cannot orient their actions by them.
- The rules as announced should coincide with the actual administration of those rules.
The “natural law” element in Fuller’s writings tends to be reflected in this concern with legality, or due process, rather than in a concern with the substance, or content, of laws.
It must be admitted that at the end of the day Finnis’ conclusions may seem rather vague: it may be thought that his list of 7 basic goods is highly subjective, in that other thinkers might offer a longer, a shorter or a quite different list; and as Lloyd says, “as with much natural law theorizing, we are left not with a blueprint for legal and political action, but with hints, no more, of how to better ourselves an the communities within which we live.”
The idea of “invisible bonds of common thought” is not susceptible to any empirical or rational analysis of morality and law: which bonds of thought? How “common” must they be? Exactly how would this “drifting apart” take place?
Both “classical” natural-law ideas, based upon religious doctrine, and modern variants based upon more “secularized” criteria, suffer from the fact that it is not possible to demonstrate empirically and scientifically the existence of such values. More than this, there is little agreement among natural-law scholars about the precise content of any absolute moral code.
In the law of torts which governs civil liability in such cases, there is no legal duty to rescue a person in peril, regardless of any moral imperative which may exist; and generally speaking there is no duty to act positively for the benefit of another.
Moral arguments in areas such as this — as well as those surrounding issues such as cloning, embryological research, and in-vitro fertilization — follow inexorably from advances in scientific knowledge and techniques. Not too many years ago, the limitations of medial knowledge and surgical techniques might well have prevented such a tragic dilemma as the one discussed above.
Despite what Lord Devlin would like to believe, there is very little consensus in our society over particular moral issues, or over the extent to which law should be used to enforce moral principles other than the basic prohibitions on violence which are clearly necessary for any social group to survive.
The argument which is put forward here is that both law and morality, far from having their origins in mysterious revelations through religious visionaries or other mystical sources, are firmly rooted in social conditions and practices. Law and morality are human constructs, having their foundations in scriptures as written and interpreted at various times, in traditions or cultural patterns, or in the conditions of social life prevailing at different periods, which are informed and underpinned by historically specific economic and political formations. The diversity of moral values which we observe in discussions of law and morality is therefore to be seen as a reflection of the diversity of economic and political interests existing in a society at any given time. In matters in which the state intervenes to prohibit or control moral behavior through law, we find that such intervention is usually the outcome of the workings of an intricate complex of pressure-groups, political parties and other interested individuals and groups who possess the power to influence the creation of legal rules.
An example of the social origin of moral and legal values and rules is the position in Western societies of the social institution of property. Private property is so basic to our society that we readily condemn any infringement of our rights — legal and moral — to acquire, possess and enjoy our personal property. But in a society where property is held communally, such a value as the “sanctity of private property” can have little or no meaning. In such a social setting, any attempt by one individual to treat property as his or her own “private” possession would be regarded as an affront to the entire community.
The elevation of property and wealth to one of the highest social and moral values belongs only in a society based on material gain; it certainly has little place in the more traditional and orthodox sources of our moral code: “It is easier for a camel to go through the eye of a needle, than for a rich man to enter the kingdom of God.”
Schur used the term “crimes without victims” to refer to certain activities which were all, at the time of this writing, criminal offenses. The examples he discussed were drug use, homosexuality and abortion.
Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government. The suppression of vice is as much the law’s business as the suppression of subversive activities.