When Is Immorality Not Enough to Cause Harm - Essay Example

In today's free society, morality and the principle of "harm" continue to be major considerations in the promulgation of criminal law, but they are no longer the sole factor. The need for society to protect itself from potential destruction or disintegration is increasingly becoming the primary issue in the enactment of the new criminal law that is hinged on morality as espoused by the church despite today's prevailing policy in the separation of church and state. The survival of society holds primacy over individual freedom and liberty. While it is the responsibility of society to protect and secure its individual members, society's bigger accountability is to secure its own survival over and above anything else, including the individual liberties of its members. It is necessarily a selfish principle, one that negates individual rights and demands sacrifice from its members. It views morality from an experiential perspective, not from the light of faith and enlightenment, and adopts the utilitarian principle in the determination of right and wrong. Nevertheless, society has survived and continues to gain strength through centuries of tumultuous policy shifts, providing the much need stability and moral ground to survive amoral assaults. The law it adopts is a tapestry of many shades of gray. It cannot always be a solid set of rules written in tablets, but rather an amalgam of lessons, reflections and paradigms unique to a given era and specific to a particular people caught in a convoluted web of situations from which it draws its strength through reason. The imperative that faces courts in these times, therefore, is to strike a balance between fulfilling the moral duty of the judiciary to "give everyone his due" and to come up with learned and scholarly decisions that look back to the lessons of the past to deal with new and changing situations and circumstances of the present and the future. "For practice to be subject to the criminal sanctions, it is not enough in our submission that it is regarded as immoral. Nor it is not enough it should cause harm. Both of these are minimal conditions for actions by means of the criminal law." When is immorality not enough to cause harm For centuries, criminal law was primarily grounded on moral principles, with kings using the moral strength of the church, if not gods, to elicit submission and respect from their subjects. In most ancient cultures, the political ruler was also the highest religious leader and sometimes considered divine. Under republican government, religious officials were appointed just like political ones. MORALITY Morality refers to the concept of human ethics which pertains to matters of right and wrong used within individual conscience. It is systems of principles and judgments shared within a cultural, religious, secular or philosophical community; and codes of behavior or conduct morality. Issues arising from morality used to be resolved by the church or religious leaders until this was assailed in the wake of widespread abuse (Gert, 2005). With the introduction of the concept of separation of church and state, the role of religion in legal matters has been part of a long debate throughout much of history, especially since the Age of Enlightenment. Religious opponents of secular government contend that while the state should not establish a particular state religion or require religious observance, it still must be infused with spiritual ethics and values in order to operate "properly." They argue that the teachings of religion are the basis of law and civil society, and that a society which discourages the promulgation of those beliefs cannot function. Furthermore, they submit that religious groups ought to be involved in politics to assure that laws are passed which reflect what they perceive as universal truths (Gert, 2005). SEPARATION OF CHURCH AND STATE On the other hand, some people desire the legal separation of church and state to keep "superstition" out of government. For example, many atheists, agnostics and freethinkers believe it is inappropriate for a government to be controlled by a religion, claiming the church might harm the state. Moreover, they believe religious conviction might cause the state to become involved in a disastrous war, or to remain pacifist when force is necessary for the preservation of the state. It may also influence public policies in a manner detrimental to those who do not follow all the church's teachings. While many countries, including England, have established a clear distinction and unmistakable demarcation line between state and religion, a good number of them continue to acknowledge the role of religion and consult with religious leaders about the affairs of the state, particularly in the area of retributive justice. Some states of the USA have abandoned capital punishment in the light of the arguments and pressure exerted by religious groups. Many states in the Middle East are still controlled by their religious leaders and observe the same criminal justice system that has been in place for centuries. Despite their open support for religious freedom and unwavering commitment to church-state separation, many Western lawmakers continue to use Christian-based moral principles in the creation of criminal laws. In the absence of a church that has lost much of its power and influence as a result of the emergence of more free thinkers, lawmakers often find themselves defending the need of society to survive to pass certain criminal laws. Consequently, in the absence of clerics to defend morality issues on the basis of biblical teachings, more new issues are being raised and left unanswered. Some of these are: Where does society get its authority to do this and how does it settle the moral principles which it enforces Some thinkers believe there is certain standards of behaviour or moral principles which society requires to be observed. Inability to comply with them or willful disregard of them is an offence not merely against the person who is injured but against society as a whole. Government leaders and lawmakers, representing society, cannot afford not to adopt these laws to ensure the survival of society. If they are to bar this concept, then the laws against euthanasia, suicide, abortion, and incest, to name a few, would have to be repealed to the detriment of society as a whole (Beneke, 2006). While many people think that the law on some of these subjects is in need of reform, no one has suggested that they should all be left outside the criminal law as matters of private morality and are harmless to the public at large. (Beneke, 2006). While indeed immorality and harmfulness are minimum components for a crime, they do not constitute the sole bases. In fact, an ever more compelling component is the effect of an act on society, necessitating the establishment of a wall of defense against consensual, private crimes which may seem harmless at first glance, but could in fact threaten society in general. Adultery, at first glance, may be just a private crime between a philandering husband and his wife. But when taken in the context of an assault to the institution of marriage, then it becomes a threat to the basic institution that keeps society intact and, therefore, is a cause for alarm for society in general. WOLFENDEN REPORT This argument was also used to assail the Wolfenden Committee Report that recommended, among others, that "homosexual behaviour between consenting adults in private should no longer be a criminal offence." Disregarding the conventional ideas of the day, the committee stressed that "the law's function is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others ... It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern" In the public debate that ensued following the publication of the Wolfenden Report, the heart of the controversy centered on making a distinction between "public and private" and, broadly speaking, the relationship between law, liberty, and morality. The report's publication was a turning point in the legalization of homosexuality in Western countries and the passage of the Sexual Offences Act of 1967 in the United States (Chesser, 1958) and the end of widely held perception that homosexuality is a form of disease that threatens the concept of man, woman, and child as foundation of family. Lord Patrick Devlin, a major critic of the Wolfenden Report, argued that popular morality should be allowed to influence lawmaking, and that even private acts should be subject to legal sanction if they were held to be morally unacceptable by the "reasonable man," in order to preserve the moral fabric of society. Devlin (Chesser, 1958) asserts that society's existence depends on the maintenance of shared political and moral values. Violation of the shared morality loosens one of the bonds which hold a society together, thereby threatening it with disintegration. Devlin proposed a public morality that, in certain situations, would override matters of personal or private judgment. Devlin believes that "the limits of tolerance" are reached when the feelings of the ordinary person towards a particular form of conduct reaches a certain intensity of "intolerance, indignation and disgust". If, for example, it is the genuine feeling of society that homosexuality is "a vice so abominable that its mere presence is an offence," then society may eradicate it. The Wolfenden Report and the open debate that ensued following its publication unlocked a floodgate of ideas relative to the treatment of homosexuality not just as a moral issue, but as legitimate legal subject whose dynamics have been discussed beyond the limits of morality as well as perception of place and time. SIGNIFICANT INROADS To date, significant inroads have been made with regard to protecting the rights of homosexuals. In other jurisdictions, the legal principle has been laid down that "protection from discrimination on the basis of gender" extends to "protection from discrimination on the basis of gender identity." This has led to the creation of the "gender non-conformance" legal theory -a theory that essentially states that "discrimination because one fails to act in the way expected of a man or woman is forbidden". In another case applying the same theory, a bank was held liable for refusing credit to a cross-dressing applicant, and the Court held that the laws protecting human rights and prohibiting discrimination prevail over private regulations and company policies. [Rosa v. Park W. Bank and Trust Co., 214 F. 3d 213 (1st Cir. 2000)]. However, it would seem that in English law, legal gymnastics is resorted to to deny the "duty of care" when the claimant is a homosexual alleging discrimination based on gender orientation. A good example of this is the "heterosexual comparator" argument. In the language of Robert Wintemute,1977: If a man complains that he has been treated differently because he has a male partner, the usual response is that there is no direct sex discrimination because a woman who has a female partner would be treated in the same way. This comparison avoids finding of direct sex discrimination by changing not only the sex of the man, but also the sex of his partner. Yet for a valid sex discrimination analysis, the comparison must change only the sex of the complaining individual, and must hold all other circumstances constant. Otherwise, a change in some other circumstance (such as the complaining individual's qualifications, their choice of job or the sex of their partner) could hide the sex discrimination. In relation to this case, there are two important cases from which the decisions appear troublesome because they reveal the unwillingness of the legal system to rethink its traditional paradigms, particularly with regard the issue of gender. The case of Lisa Grant -v- South-West Trains Ltd [Case C-249/96], decided by the European Court of Justice, makes a good study. Lisa Grant was employed by SWT whose employees were entitled to travel concessions. "Privilege tickets" were granted for one legal spouse of an employee and also to "one common law opposite sex spouse (emphasis provided)... subject to a statutory declaration being made that a meaningful relationship has existed for a period of two years or more..." That travel concession was an aspect of pay within the meaning of Article 119 of the Treaty. The important question raised in this case was whether that provision conferring the benefit on an employee who lived with a person of the opposite sex constituted discrimination based directly on the sex of the worker. The court held in the negative. By the simple expedient of pointing out that a man living in with another man would be refused too, the court justified the act of refusing travel privileges to a woman living in with another woman. In the same year as the Lisa Grant case is the case of P -v- S & Cornwall County Council [1996] ECR 1-2143, where the Court ruled in the same tenor. It found that the provisions of the directive prohibiting discrimination between men and women were simply the expression of the principle of equality which argued in favor of applying it to discrimination based on the workers' gender assignment. Hence, while a transsexual may rightfully invoke it, having switched gender assignment, a homosexual still biologically male, may not. To quote the Court: "...the scope of that article (Article 119) ...is to be determined only by having regard to its wording and purpose, its place in the scheme of the Treaty and its legal context. It follows from the considerations set out above that Community Law as it stands at present does not cover discrimination based on sexual orientation". Comes now the case of Smith v Gardner Merchant Ltd [1998] EWCA Civ 1207 (14 July 1998). The appellant, a homosexual man was hired as a barman at a Theatre, where a co-worker constantly taunted him and made personal remarks about his being gay, going to the extent of saying that gay people carry "all sorts of diseases and should all be placed in one island." The co-worker fabricated stories about the conduct of appellant to management, and as it was her version that management believed, appellant was found to be guilty of gross misconduct. In the decision, this categorical statement could be found: The Industrial Tribunal and the Appeal Tribunal were, therefore, correct to conclude that there is a difference between discrimination on the ground of sex and discrimination on the ground of sexual orientation and that a person's sexual orientation is not an aspect of his or her sex. What is obvious in the light of cases cited is that there is both tolerance and resistance to the idea of homosexuality and accommodating it as a concept in the discussion of gender discourse as it impacts on law and breach of duty. This demonstrates a legal history that seeks to preserve antiquated paradigms and belief systems based on traditional moral beliefs, and openness to a culture of diversity and pluralism as originally invoked by the Wolfenden Report. Society, not individuals, has a right to self-determination, to provide its own ideals for its preservation, to define the boundaries of good and evil to ensure its survival. It has to have an invisible bond to keep its parts intact; otherwise, they would drift apart and disintegrate. According to Devlin, "Society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price." SOVEREIGN IDEAS John Stuart Mills, one of the most highly regarded thinkers of our time, is a staunch advocate of the harm principle "which holds that each individual has the right to act as he wants, so long as these actions do not harm others." However, Mills believes that if the action only directly affects the person undertaking the action, then society has no right to intervene. This principle continues to hold sway in many legal arguments. The Wolfenden Commission quoted Mill liberally to defend its report. A person has a right to self-expression and free speech as long as such expression and speech do not cause harm to others. Moreover, Mill believes society cannot dictate on the individual what is good for him. "Over himself, over his own body and mind, the individual is sovereign," he insisted (Mill, 2002). Mill's Essay on Liberty is grounded on the principle of utilitarianism, not on natural rights. While many of his ideas are enshrined in government policies, his thought-provoking concepts continue to divide many of his interpreters. For one, they sometimes run in conflict with some of the principles advanced by lawmakers who give more bearing to society's need to regulate its members than conceding to their "individual sovereignty." For Mill, however, this conflict poses no problem and is, in fact, essential in the quest for truth. . He is a passionate defender of free speech. He argues that free discourse is a necessary condition for intellectual and social progress. As a matter principle and in response to the two questions raised earlier, society has a right and a responsibility to make a judgment on moral issues and preserve morality accordingly to preserve itself. It must use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential to its survival. It is a dangerous proposition, to say the least, a flawed principle that could make tyrants out of government leaders, mindless inquisitors that could pounce on ordinary citizens, deprive them of their basic human rights, and criminalize "jaywalking" in the guise of protecting society. Nevertheless, it is an essential defense mechanism, a "great stabilizer" in this day and age of pragmatism, with hardly any regard, if at all, for moral boundaries. The law, criminal or otherwise, is a better-than-nothing moral institution to remind everyone about his responsibility to someone greater than himself, who may not be god, but someone close enough - his neighbors or society - as ideas are tested in the agora of free speech. REFERENCES Allen, George & Unwin. Fear, Punishment, Anxiety and the Wolfenden Report. Altman, A. (1986) Legal Realism, Critical Legal Studies and Working. Philosophy and Public Affairs, vol. 15, no. 2. 217-244. Beneke, Chris, 2006. . Law and Religion. Ashgate. ISBN 978-0-7546-2494-3 Charles Berg, 1959. More easily readable versions of On Liberty, Utilitarianism, and Three Essays on Religion Clark, James R. (1965). Messages of the First Presidency. Brigham Young University, Department of Educational Leadership & Foundations. Retrieved on 2006-11-30. Chesser, Eustace, 1958. Live and Let Live: The Moral of the Wolfenden Report. Taylor Garnett & Evans. Church and State in America to the Passage of the First Amendment. Oxford University Press; Reprint edition (December 19, 1989). ISBN 0-19-505181-5. Collective Moral Responsibility from the Internet Encyclopedia of Philosophy. Aristotle on Moral Responsibility, Book Review, T.D.J. Chappell, Mind Journal, Oxford University Press Curry, Thomas J.,1989. Beyond Toleration: The Religious Origins of American Pluralism. Oxford University Press, USA Davis, Derek H.. The Evolution of Religious Liberty as a Universal Human Right. Retrieved on 2006-12-05. Frost, J. William,1990. A Perfect Freedom: Religious Liberty in Pennsylvania (Cambridge, England: Cambridge University Press). Green, W. (1929) Greek and Roman Law in the Trinummus of Plautus. Classical Philology, Vol. 24, No. 2, pp. 183-192 Gert, Bernard. 2005. Morality: Its Nature and Justification: Revised Edition, New York: Oxford University Press. Hedley, S. (1995) Unjust Enrichment. Cambridge Law Journal. Vol. 54, No. 3, p. 578. Jensen, Robert and Allen, David S. (Eds.). 1995. Freeing the First Amendment: Critical Perspectives on Freedom of Expression, New York: University Press, pp. 31-53. Mill, John Stuart, A System of Logic, University Press of the Pacific, Honolulu, 2002, ISBN 1-4102-0252-6 O'Connell, D.P. "Unjust Enrichment." American Journal of Comparative Law. Vol. 5, No. 1. (Winter, 1956). Pp. 10. Tony Honor, 'Devlin, Patrick Arthur, Baron Devlin (1905-1992)', first published Sept 2004, 3000 words. Spurgeon, Charles H. (August 1988). "The Inquisition". Sword and Trowel. Retrieved on 2006-12-20. Streeter, T.. Some Thoughts on Free Speech, Language and the Rule of Law. 1995. Wintemute, R. "Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes" [1977] 60 Modern Law Review 334. Streeter, T.. Some Thoughts on Free Speech, Language and the Rule of Law. 1995. Read More