The law tries to attain social cohesion by enacting laws to reflect what society believes. Is this possible in today's society?

“What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard”

It is this reason as to why many believe the previous positivist argument to be absurd. How could they (positivists) enforce the law under principles, which neither the judges involved or the public believed in? This proves that even the positivist movement has begun to accept the reality that the law and morals are directly linked and that without morals law ceases to be effective within society.  It’s on this note that I bring to light Hans Kelsen view on the law and morality.

Kelsen is of similar view to that of Hart in that he also believed in a union of primary and secondary norms. There is in society what many would see as cultural or moral norms. Whilst Kelsen does not implicitly state this one can use his theory to back up the presence of a common morality within the law. Kelsens theory revolves around a hierarchy of norms. His model of a legal system is based on each norm being validated from a superior source until a point of origin is reached, the Grundnorm. The Grundnorm is the origin of any chain of legal norms; the apex of all other norms and it’s upon this theory that the idea of a common morality rests.

Kelsen states that the Grundnorm being the highest legal norm regulates and justifies all other norms. Following this theory through you could come to the conclusion that the constitution of a nation must be the Grundnorm. If taken a step further, where does the constitution gain its power? A constitution derives its power from the people, were the people to reject a constitution it would have no validity. Thus it can be said that if power is ultimately derived from the people, surely the norms and therefore law must reflect the will and morals of society?

Potential problems arise under this argument when you take into account nations such as the United Kingdom who have no written constitution but politicians in Parliament lay down law. Despite this the same principle can be used. It is the public at large who vote politicians into parliament and as such their power is derived once again from the people. If Parliament does something that is against public morals they are voted out at the next general election. Thus once again wee see that within the UK at least the law must reflect the common morality of the people to a certain extent or face potential rejection.

Despite these theories holding certain weight towards a common morality within the law there are notable problems arising within legal systems that actively prevent a common morality from ever actually taking hold within the law.

In today’s political climate sadly many laws are not impartial to the needs or morals of the people. In the United Kingdom for example the law is ultimately linked with politics. Sadly politicians are not always the most moral of people. They base policies and legislate on what the majority of the people want in order to get elected. With so many different cultures and religions within a nation such as the United Kingdom pleasing everybody will be all but impossible. Thus in order to please the majority the lawmakers may ignore or even deny minorities their most basic moral rights. The views of the majority cannot discriminate against minority groups, even if moral opinion is against the views or practices of those groups.

“History affords us many instances of the ruin of states ... the ordaining of laws in favor of one part of the nation to the prejudice and oppression of another, is certainly the most erroneous and mistaken policy ... An equal dispensation of protection, right, privilege and advantages, is what every part is entitled to, and ought to enjoy.”

Whilst such problems still exist the courts can attempt to compensate by testing the law for conformity to the fundamental values upon which the society is premised, a shared deeper constitutional morality. Whilst these values may be overlooked they are integral to democracy and thus the courts play a vital role in maintaining the principles of democracy.

“Those individuals or groupings who believe that power is not being exercised in the common interest must be in a position to challenge a government decision.”

This leads on to the views that Dworkin holds on the law and morality. He believes that whilst rules should be used to decide simple cases legal and moral principles should be used to decide hard cases. It was upon this principle that the Palmer case was decided. The court had to decide whether a murderer could inherit the will of his grandfather whom he had murdered. Under statute it was said that he was entitled to the inheritance but the court decided against such action under the general principle that:

“No one shall be permitted to profit by his own… wrong”

Here we can actively see the law being based upon moral principles rather than statute thus reflecting morality within the law. It must be noted however that the statute was clear in the Palmer case and the moral principle overruled it. Thus legal principles are not only there to fill in the gaps in legislation but are also there to prevent injustices which would be against the morals of society as a whole. Dworkin thus believes that the positivist view that legal rights and moral rights are separate is wrong. He believes in community morality based on background moral rights derived from the people and made law by the community’s political structures. Dworkins supporters such as Waluchow share such views:

“ It is not the personal morality of any particular person or institution. Nor is it the morality decreed by God, inherent in the fabric of the universe, or discernible via the exercise of pure practical reason. Rather it consists of the moral norms and convictions to which the community, via its various social forms and practices, has committed itself, …”

Such morality is as such practiced by state institutions and as such is stable as a political morality, which can resist the more vulgar sentiments of the public majority. These institutionalised moral rights aid in the formation of legal rights as seen in the case of Donoghue against Stevenson. The right to claim damages for negligence takes its roots back to moral or Christian principles. In short Dworkin believe that Judges whilst following the legislation - that as discussed above derives much of its power from the moral values of the community - should be used to discern simple cases hard cases should be derived from political morality stemming from a deeper sense of moral values from the community.

Whilst all of the theories aforementioned point towards the law coming from within the community and thus reflecting a shared common morality there are other theories that state that for the law to have any weight it must have a moral commitment to society. If law has no moral commitment it ceases to be part of society. The law is there to maintain social control. For the law to effectively control society it must reflect what society believes.

One such philosopher is Durkheim. He believes that law is directly derived from societies own morality and that law must have a moral commitment to society for it to be valid. Whilst this view is similar to those mentioned above, Durkheim claims that law should have no value if it is not derived from society. Such arguments go to prove that law must reflect a common morality. For the law to work as an instrument of social control it must reflect societies morality.

“Social solidarity is a wholly moral phenomenon... [Its] visible symbol is the law.”

This view is often hard to put into practice. In a large multi-cultural society with many diverse religions and ethnicity disputes are only inevitable if the law attempts to cater for every different sub group. Laws have had to become formalized to deal with such issues and special institutions to enforce them. In this way the law cannot reflect the common morality of society in its entirety, it can only preserve purely the morals that every human being in this world believes in.

My final point in the law reflecting a common morality arises in the form of human rights legislation. Human rights are a form of morals agreed upon by the majority of the people within the world. The right to life, freedom from torture amongst others rights are all basic rights (morals) that we as humans should have. In 1998 the United Kingdom enacted the Human Rights Act. This enshrined the ECHR in statute that institutions and citizens of the United Kingdom had to follow. In short the ECHR was now law. This in turn reflects the common morality of the entire European Community now enshrined within law. Whilst it may not be perfect it does come back to Kelsens theory of norms the people having given the ECHR and the Human Rights Act 1998 validity. Hart also supports as it was in response to social pressures that such legislation was enacted and it also falls into Dworkins theory, as all these rights are general moral principles that must be followed.

All the above viewpoints and theories mentioned whilst pointing towards a common morality within the law always fall short of achieving that goal. No theory lay down by the worlds most enlightened philosopher, jurist or lawyer can find a way to please the whole of society and reflect all their views in law. It’s impossible to accomplish at least in our lifetime. Mankind has not evolved culturally or emotionally yet to attain the levels of wisdom needed to either contemplate a viable theory or for mankind to come together as a world order. As long as mankind fights amongst itself - we can see this happening today more than ever - such a goal is only an ideal. We see this every day; in Iraq there is a constant battle for social control. The law is having little success to bring about order within Iraq. Even in the worlds “civilized” societies such as the USA and the UK we see infringement of human rights under terrorism acts intended to protect the state and its people. Such laws do nothing to reflect a common morality. Most people would consider such laws draconian and outdated but yet they exist. These are only a few of the obstacles stopping the law from reflecting a total common morality.

In conclusion the law attempts to reflect a common morality within a society as diverse as ours today but it constantly falls short. Both Kelsen and Hart agree that whilst the law derives much of its power from the people and their moral values it can never please society as a whole. There will always be a group or sub-group who feels neglected. Whilst the law may protect the minority under anti-discrimination law and human rights it still doesn’t maintain their moral standards. In this respect the law will never be able to achieve its goal of reflecting a common morality. As long as different cultures and religions continue to be at odds with each other no number of moral principles as laid down by Dworkin or methods of social control, – stemming from moral rights – the law will never reflect the entire societies morality. Whilst it may happen one day, that day is many decades away and is unlikely to happen in any of our lifetimes.

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