SEMINAR THREE

LAW AND MORALITY

What is Morality?
According to Caron:
Morality implies a basic reference to the distinction of what is right from what is
wrong. Various moralities differ as to the extent of what is right and what is
wrong, or good and bad, and therefore, each community, nation or society may
have its own morality, according to the local beliefs, whether social, political,
religious or other.1

Morality and the Law Generally

Although not all morality is part of law, moral standards may be an external criterion through
which the validity and acceptability of law may be evaluated. Morality has been taken to be part
of the higher law through which the law of man, or positive law, is validated. Further, obedience
to law are some of the moral judgments people make. Law itself may be regarded to form part of
societal morals that should not be violated. Law does have moral weight. It has been stated that:
We take it for granted that the laws and the legal system under which we live can
be criticized on moral grounds, that there are standards against which legal norms
can be compared and sometimes found wanting. The standards against which law
is judged have sometimes been described as “a (the) higher law”.(fn) For some,
this is meant literally: that there are law-like standards that have been stated in or
can be derived from divine revelation, religious texts, a careful study of human
nature, or consideration of nature. For others, the reference to “higher law” is
meant metaphorically, in which case it at least reflects our mixed institutions
about the moral status of law: on one hand, that not everything properly enacted
as law is binding morally; on the other hand, that the law, as law, does have moral
weight – it should not be simply ignored in determining what is the right thing to
do. (To clarify this last point: if the law had no intrinsic moral weight, we would

1
Yves Caron, „The Legal Enforcement of Morals and the So-Called Hart-Devlin Controversy‟ (1969) 15(1) McGill
Law Journal 9, 9.
1
 feel no need to point to a “higher law” as a justification for ignoring the
requirements for our society‟s laws.)2

Morality and Common Law

The foundation of common law seems to be moral and cultural judgments of judges that have
evolved through legal precedents over a period of time. Common law, to an extent, developed
through the English community‟s moral experiences and has then been transplanted to other
societies, for instance, the Kenyan one. It has been noted:
The judge, according to the classical common law conception, expresses the
essence of the community's moral experience, distilling it in the form of 'wise'
decisions. Wisdom here does not refer specifically to capability in the logical
elaboration of concepts. It is rather a matter of being able to reflect accurately
popular moral intuitions and draw from them general principles to provide
reliable, coherently elaborated, and, above all, practical guidance for the future as
well as a meaningful interpretation of the concrete case to be decided. The wise
decision would be one that would satisfy the popular sense of justice of the
community, and would be capable of being understood as rational, principled and
consistent in the light of prior decisions and predictable future cases.3

…Law [including common law] must be understood as having the function of

reflecting and expressing society's most prominent unifying moral norms.4

…Traditional common law method might be thought of as taking as its task, in part, that
of translating the particularity of community moral experience into legal form. Thus the
judge is the primary forger of links between law and morality in the common law
conception because the essential task of common law practice is to create legal principle
out of diverse moral and social experience, reflected in the unpredictability and never-

2
Brian Bix, Jurisprudence: Theory and Context (5 edn Sweet and Maxwell 2009 London) 67.
3
Roger Cotterrell, „Common Law Approaches to the Relationship between Law and Morality‟ (2000) 3(1) Ethical
Theory and Moral Practice 9-26, 11.
4
Roger Cotterrell, „Common Law Approaches to the Relationship between Law and Morality‟ (2000) 3(1) Ethical
Theory and Moral Practice 9-26, 12.
2
 ending variety of the cases that come before the court. Historically, the jury perhaps had
some role in this process too with its obligation and entitlement to give its 'verdict
according to conscience.‟5

…The old common law image of law distilled from community experience and morality,
brought to the court in litigation, has to co-exist with the modern - and, in many ways,
much more powerful - image of enacted positive law, handed down 'from above', in the
form of statutes and other law produced from non-judicial sources. Certain fields of law
in common law systems are now extensively systematised in code-like form, though with
a continuing emphasis on the piecemeal detailing of technicalities.6

Morality as Central to Natural Law Theorists Perceptions on the Nature of Law

Morality is central to the ideas postulated by the natural law theorists. Morality is broad and
touches on matters related to ethical and value judgments within the society. According to
natural law theorists, moral factors are central to legal issues. Unlike positivists, natural law
theorists argue that the law of man can only be valid if it is consistent with the law of God, law
of nature or law of reason. These three criteria by which natural law theorists argue as the basis
for the validation of the law of man involve fundamental moral and ethical issues. One of the
theorists who postulated natural law ideas was John Locke. Concerning Locke‟s ideas, it has
been observed that:
In the Essays on the Law of Nature, Locke writes that “all the requisites of a law
are found in natural law” (Locke 1663–4, 82). But, what, for Locke, is required
for something to be a law? Locke takes stock of what constitutes law in order to
establish the legalistic framework for morality: First, law must be founded on the
will of a superior. Second, it must perform the function of establishing rules of
behavior. Third, it must be binding on humans, since there is a duty of compliance
owed to the superior authority that institutes the laws (Locke 1663–4, 83). Natural

5
Roger Cotterrell, „Common Law Approaches to the Relationship between Law and Morality‟ (2000) 3(1) Ethical
Theory and Moral Practice 9-26, 13.
6
Roger Cotterrell, „Common Law Approaches to the Relationship between Law and Morality‟ (2000) 3(1) Ethical
Theory and Moral Practice 9-26, 14.

3
 law is rightly called law because it satisfies these conditions. For Locke, the
concept of morality is best understood by reference to a law-like authority
structure, for without this, he argues, moral rules would be indistinguishable from
social conventions…For Locke, then, moral law is, by definition, an obligatory
set of rules, because it is reflects the will of a superior authority.
Moral rules are obligatory because of the authority structure out of which they
arise. But, this is not the only story Locke has to tell regarding the nature of our
obligation to divine moral dictates. The set of moral rules that reason deduces are
taken by Locke to be reflective of human nature. The rules that govern human
conduct are specifically tailored to human nature, and our duty to God involves
realizing our natures to the fullest degree.7

The Nuremburg Trials Dilemma and the Value of Natural Law Perspectives
The contributions of the ideas generated under the concept of natural law were helpful in
addressing the dilemmas of prosecuting Nazi Germany and Japanese citizens accused of
the crime of aggression and war crimes in the Nuremberg and Tokyo tribunals. The
solution to the dilemma was not in positive law as it was then, but in natural law theory.
Though positivism can offer some explanation for the trials, it cannot provide a sufficient
justification. The Tribunals formed the foundation for what is today referred to as
international criminal law. It has been observed that:

The persons known as major German war criminals were tried in 1945 for
offenses specified in an agreement (“the London Agreement and Charter of 8
August 1945”) made between the states governing Germany since its surrender to
them. The judges held that the defendants had at all relevant times been bound by
(and in many instances had acted in violation of) the principles or rules specified
in the London Charter, such obligations being derived not, of course, from the
agreement (which was made subsequent to the acts in question), but rather, as to
some of the crimes alleged, from international law and, as to the alleged “crimes

7
Stanford Encyclopedia of Philosophy, „Locke's Moral Philosophy‟ (2011) <http://plato.stanford.edu/entries/locke-
moral/#MorNatLaw> accessed 8 September 2012.
4
 against humanity,” from the “elementary dictates of humanity.” To hold the
defendants responsible for violating these rules and dictates, and reject any
argument that their acts' compliance with German law could make them lawful
acts, was not (so the tribunal ruled) to violate the principle of law and justice that
no one should be punished except for violation of law. The result of these rulings
might be accounted for …[by] natural law theory's account [which] seems the
most explanatory: the moral rules applied were also rules of the “higher law”
applicable in all times and places (and thus in Germany and its territories, before
as after the Charter)‟ which included everyone's obligation to behave with
elementary humanity, in addition to the judicial obligation (incumbent upon the
Nuremberg and Tokyo tribunals) to do justice after the alleged crimes had been
committed.8

Revision Question
With practical examples, explain whether moral standards influence the making and
implementation of law. Was the trial of people of Nazi German and Japan citizenship
accused of having committed the crime of aggression and war crimes appropriate and
proper based on the fact that there was no crimes known as such at the time they were
alleged to have been committed? Did natural law concepts offer a legitimate and valid
basis for such trials?

Reference Materials
Leslie Green, „Positivism and the Inseparability of Law and Morals‟ (2008) 83 New York
University Law Review 1035-1058
Roger Cotterrell, „Common Law Approaches to the Relationship between Law and
Morality‟ (2000) 3(1) Ethical Theory and Moral Practice 9-26
Stanford Encyclopedia of Philosophy, „Natural Law Theories‟
<http://plato.stanford.edu/entries/natural-law-theories/> accessed 8 September 2012

8
Stanford Encyclopedia of Philosophy, „Natural Law Theories‟ <http://plato.stanford.edu/entries/natural-law-
theories/> accessed 8 September 2012.
5