As an extension of this, Instrumentalists believe that the law is a tool used to achieve a certain result; it cannot simply say that it should prevent or reduce crime since without criminal law there would be no crimes as no conduct would count as criminal. With no consensus reached, theorists have clearly agreed to disagree, and this sentiment is reflected towards their view of moral principles.
A natural lawyer’s answer to, ‘what are moral principles?’
An intuitive answer would be to ‘follow the natural order of things’; Thomas Jefferson kindly gave an ‘order,’ in this statement,
“we hold these truths to be self evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights that amongst these are life, liberty and the pursuit of happiness”
He has here combined Dicey’s the rule of law with natural law. Life before liberty and taking main priority, the right to equality.
The normative lawyers answer to ‘what are moral principles?’
Other definitions to morality where contained within the Hart v Devlin debate which began as a result of the Wolfenden report in 1957. In support of Stephen, Devlin argued that common morality should be allowed to influence lawmaking, and that the purpose of criminal law should be to punish all behavior, which threatens or undermines this common morality. Even private acts should be subject to legal sanction if they were held to be morally unacceptable by the "reasonable man".
“There is disintegration when no common morality is observed and history shows that the loosening moral bonds are often the first stage of disintegration.”
Devlin’s argument appeared to favour natural law; however, Devlin was not saying Christianity was right; it was simply the current ‘common’ morality.
Hart supported the opposing view, derived from Mill’s, Harm Principle, that the law had no business interfering with private acts that didn’t harm anybody. He argued that even if there was a valid argument for the legal enforcement of morality, Devlin’s common morality was flawed. Hart’s argument was
“No one should think even when popular morality is supported by an 'overwhelming majority' of marked by widespread ' intolerance, indignation, and disgust' that loyalty to democratic principles requires him to admit that its imposition on a minority is justified.”
Bringing this debate into context is the case of R v Brown, were a group of males were privately engaged in various homosexual, sadomasochistic practices using genital torture and inflicting injuries willingly. Clearly unwilling to out rightly condemn or condone the behavior the ruling was based on the unlawful acts of public policy, fear of, corruption, cult of violence and potential for serious harm.
Enforcing morality in Criminal law
Moore argued that morality was enforced in criminal law by judges. He began by defining the two main areas, morality and criminal law. ‘Morality’ was deemed to be that of the individual (the judge) diluted to suit the demands of the Judiciary. Criminal law was defined as that which obligates judges in their role as interpreters. “Obvious law” as Moore phrased it, is the law within statutes and precedent.
Morally justifying the authority of obvious law
The use of criminal law as a punitive tool must be justified. Justification for a judgment is given in the statue and justification for the statue is given by legislative supremacy. This in turn is justified by the notions of democracy, separation of powers and the rule of law, all of which must be justified as being morally correct, as it would otherwise be questioned by the public.
Morality in hard cases
Moore went on to describe the use of morality in ‘hard cases’, and case where the ‘obvious’ law cried out to be “saved from itself” an example of the former is Pretty v The United Kingdom a case which asked for permission to conduct euthanasia. Whilst morality use as a ‘safety valve’ is shown in R v R where 250 year old rule was finally abolished and it was held that a husband can rape his wife.
Is the purpose of criminal law to enforce moral principles?
On proving the fact that morality is currently being used in law Moore raised the very interesting question of whether the morality judges use in their reasoning’s should be seen as part of the law? This questions first of all assumes all judges operate from one morality, nevertheless, on taking each judge as individuals it begs to be asked; are they following the law or going against the law in favor of something else e.g. morality? Is the purpose of criminal law to enforce moral principles?
A natural lawyer would say yes. Through Divine law, they have Romans 7:7 which states “indeed I would not have known what sin was except through the law” in addition, they would completely deny ‘obvious law’ as the law and confer ‘obvious law’ as an interpretation of the law once put in human hands. Therefore, the law, Eternal law, which is morally correct, already exists and awaits interpretation, which is the job of legislation, to interpret and to enforce moral principles.
Positivists would say no. They have argued that a law enacted morally justified, is not valid because it is morally correct, but it is valid because it was enacted following procedure. Although the criminal law does serve a moral purpose, it does not follow that the criminal law's only legitimate purposes are moral ones, and that all moral purposes are equally legitimate as reasons for criminalization.
Throughout this essay, questions of the other purposes of law have not been addressed for example deterrence, retribution, incapacitation, or reformation. Are judges when able/forced to depart from the ‘obvious’ judging in favor of one of these aspects? In addition, whether morality is enforced through other agencies, for example religion, were also not touched upon.
Conclusion
Moore supports the natural lawyer, and in assessing his argument, I am tempted to agree however, Moore’s structure to his article provides more of an answer. In order to answer whether the purpose of criminal law is to enforce moral principles, one must decide which of the many philosophies of criminal law you wish to follow and which of the many notions, of what moral principles you wish to use are. To conclude you must then compare this morality with the other purposes of criminal law to determine its true purpose, that is of course assuming that criminal law has one true purpose.
bibliography
Books
St. Thomas Aquinas (Translated by Fathers of the English Dominican Province) (1947) The Summa Theologica Benziger Bros.
Blom-Cooper, L and Drewry, G (1976) Law and Morality A Reader Gerald Duckworth & Co ltd
Lord Devlin (1965) The Enforcement of Morals (London) Oxford University Press,
The Holy Bible New International Version
Hart, H.L.A, (1961) The Concept of Law Oxford, Oxford University Press,
Hart, H.L.A (1963) Law Liberty and Morality, London, Oxford University Press
Cases
R – v - Brown 1993 2 All ER 75
Pretty – v - United Kingdom App. No. 2346/02 (Eur. Ct. H.R. Apr. 29, 2002)
R – v - R 1991 1 All ER 747
Journals
Moore, M. S (2007) Four reflections on law and morality William and Mary Law Review; Apr Edition
Statutes
The American Declaration of Independence 1776
Websites
Farlex, The Free Dictionary <http://legal-dictionary.thefreedictionary.com/criminal+law> <Accessed January 2008>
Law Library American Law and Legal Information <http://law.jrank.org/pages/7914/Jurisprudence-Realism.html> <Accessed January 2008>
Stanford Encyclopedia of Philosophy <http://www.science.uva.nl/~seop/entries/criminal-law/> <Accessed January 2008>
M Souper <http://sixthformlaw.info/02_cases/mod6/cases_law_morality.htm? <Accessed January 2008>
The Summa Theologica Benziger
<http://www.ccel.org/a/aquinas/summa/FS/FS094.html#FSQ94A2THEP1><accessed January 2008>
Word count
1,492
Blom-Cooper, L and Drewry, G (1976) ‘Law and Morality A Reader’ Gerald Duckworth & Co ltd
<http://legal-dictionary.thefreedictionary.com/criminal+law><accessed January 2008>
The Summa Theologica (Benziger Bros. edition, 1947) http://www.ccel.org/a/aquinas/summa/FS/FS094.html#FSQ94A2THEP1
The Holy Bible new international version the old testament Exodus 20:1-17
H. L. A. Hart (1907-1992) Professor of at and author
H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961)
Ronald Dworkin - professor of at and the
Karl N. Llewellyn (–) jurisprudential scholar
http://law.jrank.org/pages/7914/Jurisprudence-Realism.html
http://www.science.uva.nl/~seop/entries/criminal-law/
Thomas Jefferson ( – ) third principal author of the (1776),
The American Declaration of Independence 1776
Albert Dicey ( – ) and theorist and author of An Introduction to the Study of the Law of the Constitution ().
Patrick Baron Devlin, ( - ) , , and . wrote the in 1957
The recommendations of which eventually led to the passage of the ,
Sir James Stephen ( - ) and ,
Lord Devlin, ‘the enforcement of morals’ (London) 1965 pp12-20
John Stuart Mill ( – ), , , civil servant and ,
The harm principle holds that each individual has the right to act as he wants, so long as these actions do not harm others
Hart, H.L.A (1963) ‘Law Liberty and Morality’, London, Oxford University Press
http://sixthformlaw.info/02_cases/mod6/cases_law_morality.htm#Brown,%20R%20v%20(1993)%20HL
Michael S. Moore author of ‘four reflections on law and morality’
Moore, M. S (2007) Four reflections on law and morality William and Mary Law Review; Apr Edition
App. No. 2346/02 (Eur. Ct. H.R. Apr. 29, 2002)
The Holy Bible, New International Version, The New Testament, Romans Ch 7 V 7