The Significance that Moral Views in the Development of English Law - Essay Example

Introduction The role that morals play, or should play, in the development of laws has been a long debated In this respect, both morals and the law are integral to the development of a society, such that the extent that moral views interact and are given consideration in the development of laws is of crucial importance. This is due to the fact that while laws are meant to objectively govern a society by imposing rules and obligations on its people, hence calling for objectivity and impartiality in its precepts; laws are also the embodiment of "a defensible conception of the common good" (Allan 2001, p. 123), which calls upon a legal community's moral judgment in determining what is aptly, the common good. Moreover, within the context of English Law, this relationship is further emphasised in the role that judges play in the development of precedents embodied within case law. Thus, it is within this context that this essay aims to analyse the significance that moral views have played, if they did, in the development of English Law. As this essay will argue, moral views have played a significant role in the development of English laws, due to the consideration that the legal community has given to the collective standards of morality accepted by the English society in creating legislations, statutes, and EC (European Council) Directives; and the discretion of judges in developing precedents in common law. To prove this point, the essay will begin by presenting the sources of English Law. It will then illustrate the manner that legislations, statutes, and EC Directives are reflective of societal perceptions of morality; and the extent of judges' discretion in case law. Lastly, the essay will illustrate the role morals have played in the development of English law, as well as the effect it has had the law's legal development, before ending with concluding statements. The Development and Sources of English Law Under English Law, legal development proceeds through a number of instruments such as precedent through courts, legislation through the UK parliament, and as a result of European legislation through directives and decisions of the European Union court adopted by the government. What is apparent among these sources is the degree of discretionary power given both to the individual judges under common law in terms of interpretation, such that disputes can be resolved in a manner that can be either just or unjust; and to the legal community in terms of legislation, which is affected by the individual judgment of each member, as well - both of which will be discussed in following sections. What is imperative as this point, however, is the need to distinguish between morality and moral views, such that while morality refers to some conventional conception of right or wrong; moral views, which is the topic of this essay, refers to the individual standards adhered to by individual judges and members of the parliament, as well as legislators of Community law. Thus, in order to illustrate that moral views are significant in the development of laws, one must simply illustrate that discretion is evident in the legal development of English Law, regardless if this legal development is moral or not. In this respect, this essay argues that the significance of moral views are evident in the way that English Law can both either be just or unjust, depending on the consensus of legislators' moral views regarding the common good; and the moral judgment of case law judges in interpreting these rules. English Law and the Common Good The Parliament consists of the Crown, the elected House of Common and the Unelected House of Lords. As Sir E. Coke claims, it is "the highest and most honourable and absolute Court of Justice in England,' and its 'jurisdiction' is 'so transcendent' that it can make and repeal laws on any subject matter and its honour and justice cannot be doubted" (cited in Walters 2003). This is also echoed by Austin, claiming that "the sovereign, or supreme legislator, is the author of all law" (cited in Duxburry 2004, p. 57); which places "the full dignity of the term 'source'" on the Parliament (cited in Duxburry 2004, p. 57). This in turn creates upon citizens an obligation to follow the laws. Given the obligatory nature however, which confers upon citizens a certain sense of obligation in following the rules of the sovereign, a need for protection, on the part of the citizens is imperative to ensure that their rights, as conferred to them are achieved. As Allan claims, Acts of the Parliament, as a formal conception of the law have ethical and moral implications, such that it must ensure individual rights and expectations, as well as a moral responsibility on citizens (Allan 2001, p. 312-313). In this respect, Acts of Parliament is characterised in its ability to advance the common good and secure human rights, such that moral reasons have become crucial motivations in establishing and reforming rules of law (Finnis 1996, p. 204). Moral views, therefore plays a large part in the manner that legislators determine what is to be considered as moral. In this regard, legislators, by virtue of their reason are obliged to make laws, which they consider as moral, and acceptable to the public. As Goodhart claims, "the strength of English law' depends in large part on the fact that the people of this country recognise that they are under an obligation to obey the law, and that this sense of obligation is based, not on force or fear, but on reason, morality, religion, and the inherited traditions of the nation. It is for this reason that we can truly say that our common law is our common heritage." (cited in Duxburry 2004, p. 58) However, since reason varies from one individual to the next, such that as Sir E. Coke claims, there are "as many several Reasons, as there are several men" (cited in Walters 2003), law comes not from universal reason, but from the reason of those who make the law. Thus, lawmakers, inasmuch as there is consensus among them, properly instil unto Acts of the Parliament their own moral views, by virtue of their distinct reason, illustrating discretion. This is further expresses in Madzimbamuto v Lardner-Burke [1968] PC, which states that: It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did those things. But that does not mean that it is beyond the power of Parliament to do those things. If Parliament chose to do any of them, the court could not hold the Act of Parliament invalid. Hence, the fact that legislators can come up with laws that are not necessarily moral illustrates that laws, by virtue of discretion, are necessarily the product of legislators exercising, or in this sense either exercising poorly or not exercising at all, their moral views. Parliament, however, "does not legislate in a vacuum", instead, it "legislates for a European liberal democracy based upon the principles and traditions of the common law" (R v Home Secretary ex parte Pierson [1998] AC 575). Moral Judgment and the Interpretation of the Rule of Law In addition to the manner that legislation proceeds through Parliament, it is important to understand that law application and law creation are not separate activities, such that as Kelsen argued, legal decisions are determined partly by the laws in discussion, as well as their interpretation, such that "[t]he higher norm cannot bind in every direction the act by which it is applied. There must always be more or less room for discretion, so that the higher norm in relation to the lower one can only have the character of a frame to be filled by this act" (1967, p. 349). In this respect, it is imperative to look at the manner that the moral views of those who make judgements regarding the law, as well. As James Bryce claims, "[l]aw everywhere begins with custom" (cited in Duxburry 2004, p. 59). In this respect, one can trace the development of English Law with the customs originating from the Anglo-Saxon society. These customs, which "are not set down in writing, as acts of parliament are, but' receive their binding power, and force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom" (cited in Duxburry 2004, p. 60). In 1066, King William I upon the Conquest of Normandy insisted that all lands are held by his grace, beginning an attempt to administer the country through the law changing both its character and the legal institutions that governs it (Pollock & Maitland 1923). As a result, the king's court, together with its judges became the most important lawmaking body of the land, distinguishing its decisions from customs under Common Law, where decisions are made either by recognitions of generally accepted customs, where appropriate, and forming new laws, where general customs are lacking. During this time, the English legal system is characterised with rigidity, such that the king's courts are only obliged to hear disputes provided that the petitioners purchase a writ, carrying the royal seal and consequently representing a form of action from the sovereign. However, since writs cover only certain disputes, ubi remedium ibi jus, it has been said to cause several problems and hardships for petitioners, especially in cases where individuals involved in the dispute sees themselves as victims of injustice in the hands of the common law judges. In this respect, Court of Chancery, presided over by the Lord Chancellor was created to apply the rules of equity, which are to prevail over common law. The court, however, as observed by Allen is "one of the least creditable in our legal records"; such that instead of promoting liberal justice, and a certain sense of morality, "it was for long corrupt, obstructive, and reactionary, prolonging litigation for the most unworthy motives and obstinately resisting all efforts at reform" (Allen 1958, p. 403). Thus, he claims, Charles Dickens did not exaggerate the desolation which the cold hand of the old Court of Chancery could spread among those who came to it for the love of God and in the way of charity. (Allen 1958, p. 403). What is evident from common law, however, is the extent of discretionary power given to judges, particularly in their interpretation of the law. This discretion is evident in the manner that judges choose the laws and precedents applicable to particular cases, the interpretation of the original intent for these laws and precedents, and the manner that judges are compelled to make new laws when current law does not apply to cases. First, judges in making decisions are compelled to look into the current laws applicable to certain cases. In this regard, there is a plethora of laws that judges must choose from to determine which is applicable to a given case. Moral views therefore play a significant role in the decision-making process of these judges, such that they determine the criteria, which judges consider in making choices. While these judges must make decisions objectively, however, it is impossible to prevent them from making subjective decisions necessary to ensure that the appropriate laws are considered, such that "the judge must be free to choose that precedent which he believes will lead to a desirable result" (cited in Duxburry 2004, p. 65) In this respect, a judge "[will be guided by his views on morals, economics, politics, in the best sense philosophy" (cited in Duxburry 2004, p. 65). Second, aside from choosing applicable laws, moral views also play a part in the manner that judges will interpret the original intent of laws and precedents that he chooses applicable. Thus, moral judgment can affect the interpretation and use of the law, such that "the interpretation of law depends on the moral principle that best justify past decisions. A statute or judicial precedent' is to be interpreted so that its application best serves the principles that justify the original legislative or judicial decision" (Lyons 2000, p. 14).This is because "[w]hen legislation is enacted in the absence of an intentional consensus, the doctrine of original intent implies that the enacted statute has no proper interpretation or application" (Lyons 2000, p. 12). In this respect, Lyons argues that if a judge, by virtue of his own moral view sees a law or precedent as morally justifiable, it can lead to a morally justifiable application of the law, regardless if the original intent was not meant to be so (Lyons 2000, p. 14). Lastly, since the application of the law depends largely in the manner that judges interpret them, judges can aptly be a source of law as well, such that in cases where the current law does not apply, they can create new laws by virtue of precedents. This view, however, was not readily accepted, such that Lord Asher in Willis v Baddeley (1892) 2 QB 324, 326 notes that: "[t]here is in fact no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances to which it has not previously been authoritatively laid down that such law is applicable." However, as Hart argues, when judges exercise moral judgment in the penumbra of legal rules to suppose that their results were already part of existing law is 'in effect, an invitation to revise our concept of what a legal rule is ''" (1958, p. 72). Thus, the moral views judges apply when they deciding that modification of the rules are in order is in effect contributing to the legal development of English law. As Wright argues, it is difficult for judges to approach legal disputes "except by first turning to the authorities, though in the end he may find that justice requires some modification of the rules apparently settled by the cases", because "[a] good judge is the one who is the master, not the slave, of the cases" (cited in Duxburry 2004, p. 65). The aforementioned significance of moral views in the interpretation of laws by judges can be illustrated in the case between Esso Petroleum Co v Southport Corp (1956) 218 CA, where Lord Devlin, the then trial judge, declared that "[t]he safety of human lives belong to a different scale of values from the safety of property' and the necessity of saving a human life has at all times been considered a proper ground for inflicting such damage as may be necessary on another's property". In this regard, one can see how Lord Devlin makes use of his moral views in dismissing the claims for negligence, strengthening the precedent that it is just to place harm on property to save human lives. Community Law and English Law By virtue of the UK's membership in the EC, Community law is now part of the laws of the land, where according to Lord Denning, "whenever there is inconsistency, Community law has priority", such that "[i]t is not supplanting English law. It is part of our law which overrides any part which is inconsistent with it" (Macartys Ltd v Smith [1979] [Case 127/79] ECJ and CA). In this respect, Community law, by virtue of conventions such as the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as others where the United Kingdom is a party to, has compelled legal professionals to exercise greater care ensuring that moral standards are given due attention in the development and interpretation of laws. An example is the Declaration of the Rights of the Child, ratified in 1991, which has affected the manner that children must be treated under English law. Conclusion Thus, moral views play a significant role in the development of English Law. On one hand, it has affected the manner that legislators consider the objective standards at which laws must be made to ensure compliance with the public. As illustrated by this essay, it is this community standard, which the public identifies with, that has made English law both enduring, and in a way aptly "common" to citizens. On the other hand, moral views, as part of individual judges reasoning process has also affected the manner that these judges interpret, choose, and modify rules and precedents for a just application of the law, as well as modification of it. This is also evident in the manner that Community law is part of English law, such that the moral views advocated within Community law, are in turn taken into consideration both in the interpretation and legislation of English Common Law. Furthermore, as illustrated by this essay, English Law provides room for discretion on the part of legal professionals, such that regardless if laws are created to have a moral or immoral intention, these intentions are only as effective as the understanding and interpretation judges give them. References Cases Cited Esso Petroleum Co v Southport Corp (1956) 218 CA. Macartys Ltd v Smith [1979] [Case 127/79] ECJ and CA. Madzimbamuto v Lardner-Burke [1968] PC. R v Home Secretary ex parte Pierson [1998] AC 575. Willis v Baddeley (1892) 2 QB 324, 326. Secondary Sources Allan, T 1993, Constitutional Justice: The Legal Foundations of British Constitutionalism, Oxford, London. Allen, C K 1958, Law in the Making 6th ed., Oxford University Press, Oxford. Duxburry, N 2004, 'English Jurisprudence between Austin and Hart', University of Virginia Law School Public Law and Legal Theory Working Paper Series, no. 9, [available online] http://law.bepress.com/uvalwps/uva publiclaw/art9; accessed 18 November 2005. Finnis, J 1996, "The Truth in Legal Positivism," in The Autonomy of Law, ed. George, R P, Clarendon Press, Oxford, pp. 195-214. Hart, H L A 1958, 'Positivism and Separation of Law and Morals', Harvard Law Review, vol. 71, no. 593, p. 72. Kelsen, H 1967, Pure Theory of Law, trans. Knight, M. University of California Press, Berkeley. Lyons, D 2000, 'Moral Judgement and the Legal theory', Working Paper Series, Public Law and Legal Theory, no. 00-11, Boston University School of Law, Boston. Pollock, F. & Maitland, F W 1923, History of English Law 2nd ed., Cambridge University Press, Cambridge. Walters, M D 2003, 'Common Law, Reason, and Sovereign Will', vol. 53, no. 1, [available online] http://www.utpjournals.com/product/utlj/531/531_walters.html; accessed 18 November 2005. Read More