Philosophy Case Comment: Varieties of Liberalism - Coursework Example

Varieties of Liberalism Summary: The varieties of liberalism that have been suggested by B. Mitchell1 have been ified into three main divisions: (a) a system that insists upon an individual’s unhindered right to choose as conforming to the natural order of life (b) the supreme value of human life lies in the discovery of truth and individual freedom is geared towards this purpose and (c) morality is valid only to the extent that it becomes a necessary condition for the survival of society2. In this context, the author has raised issues of morality and religion which are in general, opposed to the positivist approach to law that requires its existence as a separate framework that cannot be subject to the changing moral standards and religious values of a particular society. Recent trends in globalization have resulted in the development of international law, which is still a relatively new phenomenon, but its existence may be seen in the International Court of Justice for the resolution of inter-state conflicts and the International Criminal Court3. This mandates a globally applicable standard of law that is conditioned by morality, posing a challenge to traditional jurisprudence based upon Hart’s positivist views about legal framework defined by the values and beliefs of a particular society4. Therefore, the question that arises is, how relevant are Mitchell’s propositions – based upon the division of morality into a rational social morality and a non rational personal morality5, in the context of a universal standard of morality that would of nature, be ambiguous and difficult to define? The role of morality in the law: In answering the question “What is law?” Saint Augustine stated: “Lex iniustanon est lex” (Unjust law is not law). In contrasting the views of Mill6 and Lord Devlin7 on the role of liberalism in law, Mitchell highlights the need for complete freedom in order to ensure the exercise of moral decisions by individuals8. Thus it could be contended that the existence of restrictions in the law would itself be evil, although Plato, through his allegory of a democratic society, proposes that a society that has gained knowledge of the truth does not need freedom.9 However, Miller contends that the issue of liberalism is not conditioned by the premise of truth being knowable or unknowable10. He presents the religious perspective wherein the individual’s eternal destiny is conditioned by divine omniscience, thus human freedom and liberalism is limited accordingly as a function of preference for the divine will; however the development of the new liberalism does not presume any reason for preferring one moral standard over another, other than to preserve the bare foundation of law and order. Feldman acknowledges the implicit requirement for unconditional freedom as a constituent of the law in enforcing human rights; “once something has been identified as a good, it must prima facie be made available to all without differentiating with reference to preferred outcomes.”11 Fuller contends that the framing of rules of law is inevitably linked to morality, since (a) it is geared towards achieving the end result of social order and (b) it achieves this social order through a respect for individual autonomy, thus a failure to introduce principles conditioned by morality could produce a bad system of law, one that may be disputed as being law at all.12 According to John Austin who drew inspiration from Bentham13, “a law may be defined as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”14 However, according to Klaus F, the definition of law must be completely free from moral notions15, while Hart questions whether law should be conceptualized as coercive mandates or moral commands and concludes that there may be no moral justification mandated through legal rights and duties16. But he does not completely dismiss the moral aspect, he admits that in certain cases, a determination of the validity of a legal rule may involve its compatibility with moral values.17 The new face of liberalism: Mitchell points out that that there are three primary forms of liberalism that exist today, based upon a varying degree of belief in the metaphysical, religious and moral contributions that are deemed to be important.18 He states that new forms of liberalism are however based upon a fundamental distinction between social and individual morality. But it must be noted that in the new international context of the law, particularly with regard to the development of the UN Charter of Human Rights and the European Convention of Human freedoms,19 it is the rights of the individual and his right to pursue his own morality that are gaining more importance. For example in the case of Karner v Austria, the European Court held that there had been a violation of Article 14 of the Convention taken with Article 8, since the appellant was discriminated on a tenancy issue on the basis of his sexual orientation20. The European Convention mandates that the enjoyment of the individual “rights and freedoms” in the Convention be secured “without discrimination”21 Therefore the mores of social morality were less important in this case. However in regard to the issue of the developing sphere of universal human rights, Feldman has specified that “rights represent a balance between potentially conflicting interests, some individual, some social.” 22 This may be seen in the case of Riggs v Palmer23 as an example of the moral framework that forms the basis of application of principles when deciding hard cases. In this case, a defendant who killed his father due to the fear that he might change his will and disinherit him, was considered to have committed an immoral act that could not be condoned, although from a legal perspective of freedom, the defendant had every right to inherit the property. Dworkin states that the Court decided the case on the basis of “the principle that no man may profit from his own wrong as a background standard against which to read the statute of wills.”24 In this instance, it was the social morality that was the determining factor. In the decision of the House of Lords in the recent case of A and Others v Secretary of State for the Home Department, the House of Lords rejected the use of evidence obtained through torture, and in its judgment stated: “The use of torture is dishonorable. It corrupts and degrades the state which uses it and the legal system which accepts it.”25 By attributing the use of torture to be “dishonorable”, there is a clear indication that it is the moral aspects of the law that are noteworthy in issues of human rights and freedom. In the application of the law, the judges have been guided by the principles of fairness, justice and morality as opposed to the restriction of the issue to the validity of the evidence. According to Dworkin, the rights of minority and oppressed members must “trump” over individual rights of the majorities.26 Hart on the other hand, agrees that all fundamental rights constitute the right to freedom, but an effective legal system cannot be constructed on the basis of individual rights,27 since standards of social morality will not be the same all over the world and as Mitchell states, “no ideal should seek to engross the common social morality”28. Mitchell questions how effective this common standard of morality would be in terms of implementation29, although he acknowledges that this has been the standard upon which laws have been framed and precedents established. As pointed out by Raz, “Many legal systems recognize that both rules and principles can be made into law or lose their status as law through precedent.”30 Thus, although Hart views law and morality as strictly separate, nevertheless he identifies the secondary contexts including the moral and social contexts, within his “rules of recognition” which according to him, help to “specify the way in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.”31 Thus the relevance of a moral standard that would be unacceptable to a majority would have to be determined in terms of the particular individual who’s interests are being served32. Miller highlights the social standard of monogamy, which is based upon a religious principle, yet changing moral standards in society result in questions about what is the right level at which this aspect should be controlled through the instruments of law. He states that the new liberalism is focused upon “promoting the richest possible diversity of individual ideals together with the widest possible range of personal choice.”33 Therefore, various moralities should be allowed to co-exist. In this connection, it may be noted that developing trends in international law and human rights have highlighted these aspects of promoting the highest degree of individual autonomy as a feature of the new liberalism in law, which may sometimes be in opposition to national or regional standards. In 1978, the practice of judicial birching of juveniles34 that was in practice in the Island of Man was deemed to be a breach of the European Convention that prohibits cruel and inhuman punishment35. The practice of Birching was acceptable in the island of Man and was deemed to constitute a reasonable chastisement as established under common law in 1850 by the Chief Justice of England.36 But the European Commission and the Court of Human Rights in Strasbourg deemed it unacceptably cruel to young people37. Therefore in the adjudication of such cases, a universal standard conditioned by natural law was applied, rather than the positivist approach where law is conditioned by the social context. Mitchell thus questions the credentials of the new liberalism on the basis that it gives rise to the view that an individual can be intolerant of another person’s ideals as long as he respects his interests.38 This presents the clash of individual ideals vis a vis the ideals that govern society and give rise to difficulties in the implementation of a common standard of morality for the international context, as pointed out by Hart39. Schabas has also highlighted the conflicts that arise in the effective implementation of the law within an international context.40 There are problems of jurisdiction of the relevant courts and the nature of the law that is to be implemented, which may contravene the national laws that have been established and thereby constitute an encroachment of the sovereignty of national laws. For example, in framing the EC Treaty, the principle of subsidiarity assumed importance primarily in the context of the fears of the member states that their powers would shift from national levels to European levels41. Individuals can now press for the enforcement of their rights although these may be in violation of the standards that exist within the boundaries of the nations they belong to42. Moral issues such as homosexuality for which common moral standards may exist within a particular society are now being challenged by individuals in international Courts.43 Miller points out that some experts such as Hart may justify the law overlooking individual standards of morality when opposed to the common morality standards, on the principle that they do not cause “tangible harm” and may be confined to the area of personal religious and moral standards44. In this context, there may be some instances where personal moral standards that are reprehensible to a majority of society and most importantly, cause tangible harm, may be acceptable or condoned under the common standards of morality of society , yet may not fit into an international standard of morality. This aspect is relevant in the case of dictators who cause pain and harm to their countrymen, in which case, they may be deemed to have violated international society’s moral standards to a degree that constitutes a violation of the international law. In the words of East Timorese Nobel Laureate, Jose Ramos Horta, “in this day and age you cannot kill hundreds of people and then just get fired.”45. For example, while the UN Charter respects national sovereignty and non interference in internal affairs46 it also includes the provision that force is to be used only in self defense47 and that the advancement of Human Rights as spelt out in the Universal Declaration of Human Rights must not be violated. Conclusion: In his article, Miller has highlighted the differing viewpoints of several scholars on the issues of morality and religion, thereby deriving the different kinds of liberalism that exist. Miller raises some important questions about freedom and liberty in the context of morality and religion and the extent to which they can constitute the basis for jurisprudence. He presents divergent views and identifies three salient types of liberalism that exist and the new liberalism that is emerging. Established systems of law as in current practice advocate a Hartian system wherein morality and the law are strictly separated and individual freedoms must be determined in the context of the general, immutable framework laid out by society, although Hart does allow for flexibility in exercise of judicial discretion in establishing precedent and changing the laws. However, the new liberalism, as highlighted by Miller increasingly advocates new standards of liberalism that are strictly conditioned by enhancing individual freedom to its widest possible extent. This raises issues of the rightness and wrongness of individual acts and as Miller points out, there is general agreement that the rights of the individual should assume the greatest degree of importance and he also advocates that a restricted exercise of this freedom could prove to be evil because it detracts from individual choice and freedom in making the right decisions. He points to the existence of differing standards of morality within different societies and the need to permit these different moralities to co-exist with each other within the framework of changing standards of morality as evidenced in the case of marriage as an example. However, the system of checks and balance in the law must be preserved, at least in ensuring that a basal, minimum framework of law and order is ensured while allowing the widest degree of flexibility and latitude in the exercise of individual rights and standards of morality. Miller’s article is a thought provoking one because it highlights the inevitable inclusion of morality standards in a determination of the practice of law. In the context of increasing freedoms for individuals that are being implemented through international treaties and conventions, the moot question that he poses is, where should the borders of societal restraints mandated within the law be drawn, in order that they do not constitute an interference with individual morality and freedom?. There is a clear emergence of two kinds of morality – the morality of society and the morality of the individual. The older utilitarian beliefs of setting standards in accordance with the maximum good for the maximum number of people is not valid when individual freedoms must be cherished in the new global context that mandates a universal morality. In pointing out the limitations of Mill’s morality, Miller explains the need to look to the Kantian requirement of morality that treats people as ends rather than as means. In substance, he argues that individual freedom must acquire precedence at all costs, unless there are considerations that are critical enough to merit a curtailment of that freedom. It is only in such an atmosphere of freedom that man may fully explore and exercise his freedom of choice to turn to good or evil. The recent trends in law to ascribe highest value to the rights of the individual, over the rights of states and institutions, is therefore an encouraging trend, although it presents inherent dangers in the determination of the limitations that must be set. In general Miller appears to support the theory that individual freedoms can be permitted to the extent that do not harm the rights of others and to the extent that is required to maintain a minimum framework of law and order. As spelt out by Dowrkin, who suggested that every legal action has a moral dimension: “According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness and procedural due process that provide the best constructive interpretation of the community’s legal practice.”48 Bibliography * A and Others v Secretary of State for the Home Department, December 8, 2005. UKHL 71 * A v The United Kingdom (100/1997/884/1096) [Online] Available at: http://hudoc/echr.coe.int/hudoc/, application no: 25599/94 * Austin, John, 1977. Lectures on jurisprudence and the philosophy of positive law. MI: Scholarly Press. * A. Estella, The EU Principle of Subsidiarity and its Critique Oxford University Press, 2002: Chapter 3 * Andrea Francovich et al v The Italian Republic, Joined cases C 6/90 and 9/90 (1991) ECR I – 5357 * Bentham, Jeremy, 1970. Of Laws in general. London: Athlone Press * Devlin Conscience and its right to freedom , pp 107-108 * Dworkin, Ronald, 1984. Rights as Trumps In Jeremy Waldron ed. Theories of Rights. Oxford: Oxford University Press. * Dworkin, Ronald, 1986. Law’s Empire London: Fontana, pp 225 * Dworkin, Ronald, 1977. Taking Rights Seriously. Cambridge: Harvard University Press, pp 29 * Fuller, Lon L, 1964 . The Morality of Law. New Haven: Yale University Press, pp 39 * Feldman, David, 2000. Civil Liberties and Human Rights in England and Wales. 2nd edn. Oxford: Oxford University Press, pp 6 * Ghaidan v Godin Mendoza (2004) UKHL 30 * Klaus, F Per, 1996. Farewell to legal Positivism: The separation thesis unraveling In George, Robert P. The autonomy of law: Essays on legal Positivism Oxford: Clarendon Press, pp 321-334 * Hart, H.L.A., 1994. The concept of law. 2nd edn. Oxford: Clarendon Press * Karner v Austria (2003) 2 FLR 623 [Online] Available at: http://www.coe.int/t/e/legal_affairs/legal_co-operation/Family_law_and_children%27s_rights/ Judgments/karner%20-%2040016jv.chb1%2024072003e.asp#TopOfPage * Mill, J.S., 1962. On liberty In M Warnock (edn) Utilitarianism” London: Fontana, pp 126-250 * Mitchell, B, 1967. Varieties of Liberalism In Law, Morality and Religion in a secular society London, Oxford University Press, pp 87-102 * Plato’s Republic. * Power, Jonathan, 2005. Dictators Beware! International Herald Tribune. [online] available at: http://www.globalpolicy.org/intljustice/general/2005/0113dictators.htm * Raz, Joseph, 1972. Legal Principles and the limits of law 81, Yale Law Review, 823, pp 848 * Report of the Committee on the Rights of the Child. Violence against children in the family and in schools , pp 3. [Online] Available at: http://www.crin.org/docs/resources/treaties/crc.28/Childrenareunbeatable.pdf * Riggs v Palmer (1889) 115 NY 506 * Schabas, William A, 2001. International Law and response to Conflict In Turbulent Peace: the challenges of managing International Conflict edn Crocker, Chester A, Hampson, Fen Osler and Aall, Pamela. Washington D.C.: United States Institute of peace Press, pp 603-618 * Tyrer v UK 2 EHRR 1 (25/4/1978) #28 . Read More