Natural Law Theory / Legal Positivism

St. Thomas AquinasThe adherents of Natural Law Theory (NLT) accept as a truth that there is a direct relationship between God given morality and natural law. St. Thomas Aquinas one of NLT principal thinkers believed that natural law was the result of God’s grand concept for the universe being translated into a legal moral framework, a moral code for the benefit of mankind to live and base their society around. Aquinas stated that should this divine code come into conflict with manmade laws then the Gods natural law should naturally take precedence.

Natural laws according to Aquinas were designed to promote the common good with in a society to the detriment of manmade corruption and as a consequence any law which does not work to the benefit of the common good is by default a bad law, by this rational Aquinas was echoing the words of St. Augustine of Hippo “an unjust law is no law at all." [1] 

Jeremy BenthamRunning contrary to the belief of NLT is the concept of Legal positivism, (LP) which is opposes the belief that there is no connection with morality and ethics and the formation of a legal theories, instead they argue that laws and the judicial system are made by man for man as a result of developing customs and convention into a quantifiable legal code. LP does not seek to justify or endorse any particular legal system it only seeks to make the distinction that legal institutions are manmade concepts and as such are neither good nor bad in terms of morality or ethics, in short and using modern terminology legal systems are social constructs. One of the pioneers of early Legal Positivist thinking was the English philosopher Jeremy Bentham (1748-1832) who famously remarked that natural law was "nonsense upon stilts." His ideas were picked and modified by John Austin (1790-1859), largely though their ideas were in agreement principally that laws were constructed by sophisticated societies dominated by figures or figures such as a sovereign or parliament that have absolute power over the rest of society, these figures will often impose legislation through the threat of force or sanctions on the rest of society whilst themselves appearing not to be subject to the same rules. Other noticeable students of Bentham included James Mill and his son John Stuart Mill.

What actually makes this system a Legal Positive approach as opposed to a Naturalist approach is that it recognises the model of command and compliance within the society, commands by the sovereign and compliance by the masses without the sovereign first having to secure the legitimate moral authority from the people. It does not make any difference if the sovereign makes good laws or bad laws the subject of the laws will generally comply because of the threat of sanctions in the form of punishment.

Like most theories both Natural law theory and Legal positivism can be interpreted and appropriated in many different ways for whatever advantage. For example both the Soviet Union and the Nazis had legal systems that in retrospect were unjust; however the Positivist would have recognised the dictatorial nature of both regimes and even heralded by them as they considered themselves to be legally valid and thus vindicated. The natural law theory could have been easily used by both regimes to justify their policies, as in the Soviets considering themselves to be the only party of the religion of communism and the Nazis making associations of natural selection being part of God’s forward motion.

If we look at the Hart v Devlin debate of the 1960’s it brings into focus how different theories can be used to condemn or justify any type of behaviour.

In 1954 a report was commissioned by Winston Churchill’s Home Secretary Sir David Maxwell Fyfe called ‘The Report of the Departmental Committee on Homosexual Offences and Prostitution,’ more commonly referred to as the Wolfenden Report as the chairman of the committee was John Frederick Wolfenden, (Baron Wolfenden, CBE (1906– 1985)). [2] The report was commissioned after a string of high profile cases and subsequent convictions of celebrity homosexuals and prostitutes including Lord Montagu, Michael Pitt-Rivers and Peter Wildeblood, all were tried for various homosexual offences, the events were subsequently dramatised in the television programme ‘A Very British Sex Scandal’ (TV 2007) [3] .

A very British sex scandalPrior to the Wolfenden report a homosexual offence brought before the courts could incur anything from a £5 fine to life imprisonment, faced with the accusation that the law on homosexuality being archaic the government wanted to find out if the law on this matter was indeed outdated and was in need of revision.

The report was published on September 4th 1957 and included evidence from different parties including the police, probation officers, health experts, religious bodies, and also homosexuals who believed their lives had been adversely affected by the legislation as it was at the time.

The report took three years to complete and after it was published it came to the unpalatable conclusion for the government that the law should be changed to adopt a more liberal approach [4] , the report when on to state that the criminalising of homosexual activity was impinging upon civil liberties of those involved, after all there was no law against women’s self sex only men.

It went on to say the law should respect "individual freedom of actions in matters of private morality" but emphasised the report neither approved or condemned homosexuality. In short it stated that morals or immorals were "not the law's business". Advocating a decriminalising of homosexual activity over the age of 21 and as long as it was ‘in private and consensual’

When the report was published it attracted considerable debate in the media and also amongst legal ethicists including a well-known exchange of opinions between two of Britain’s leading legal scholars Lord Devlin (Patrick Arthur Devlin, Baron Devlin, PC, (1905 - 1992) who also gave evidence for the report committee and was a prominent judge who strenuously opposed the findings of the final report and Herbert Lionel Adolphus Hart (H.L.A. Hart) 1907-1992)) a leading legal scholar, who argued in favour of the report’s findings.

Hart, was greatly influenced by the NLT theories of Bentham and his protégé John Stuart Mill, he argued that trying to impose a moral code on society was unacceptable as it was an attack on the liberties of the individual and also that even if the state tried to impose such a moral constraint on society then it would make no difference as it would have no effect on changing attitudes.

H.L.A. HartDevlin countered declaring that society had to have a moral standard which it had to maintain through legislation if necessary without it society would decay from within, he argued it should be based on something similar to the tort standard of the ‘reasonable man test’ only in the moral debate it would be the ‘right minded man test’. He went on to state that with morality it was necessary to have three fundamental principles: freedom and privacy should not be compromised as long as it does not compromise morality, there should be a reticence in changing laws concerning morality to suit the whims of the time, and that infractions of moral decency set by ‘right-minded people’ should be punishable by law. He also declared that society has a duty to set a high moral standard so as to set an example to others.

Hart publically made a stand against this position, begging the question who can judge what a ‘right minded’ opinion was anyway. He went on to state that opposition to the proposed changes were based on prejudice and ignorance rather than any sensible appreciation of the facts. He argued that to punish someone with jail which he considered to be emotionally damaging when no one had been actually been hurt by the alleged crime was disproportionate.

Also forcing someone to suppress their sexuality under the threat of punishment was a violation of their freewill, freewill which Hart argued was in its self moral so to deliberately undermine free will was therefore immoral. He also emphasised that learning through experimentation of the law could have beneficial effects for society.

Today one could still argue that the current foundation for British morality continues to be the right-minded man approach as championed by Lord Devlin, not much appears to have changed this argument could be supported by the case of R v Brown (1993) 2 All ER 75. The Lords rejected the defense of consent on the grounds of public policy and this decision was reaffirmed in Laskey v United Kingdom (1997) 24 EHRR 39 (ECtHR) [5] 

The convictions were also upheld on appeal to the ECHR on the grounds that despite the prosecution being an interference of the personal freedoms of the individual, it was justifiable on the grounds public protection. Like the homosexual trials of the 1950’s all the participants were consenting, no one participating had made a complaint to the police, yet despite this they were all successfully prosecuted all the way to the ECHR on the basis of protecting public morality. [6] 

Other people could argue that society’s attitude has changed tremendously and this change has been reflected by judgement in the courts. In R. v Wilson (1996) 2 Cr App Rep 241 it was decided that a deliberate act of branding between heterosexuals causing severe pain and permanent scaring was a non-criminal act because of the consent of the victim, this was reaffirmed in R. v Slingsby (1995) Crim LR 570 (CA) [7] 

However, both of these cases contrast with R v Boyea (1992) 156 JPR 505 (CA) [8] in which the appellant was convicted on the grounds that despite having consent of the victim, it must an act that causes no harm.

The same debate that Devlin and Hart were engaged in during the 1960’s concerning morality still continues today; however as the above cases show it is hard to judge where the moral threshold lays, what were once regarded as taboo subjects or those of a delicate disposition are today practically de rigueur and seemingly permeate almost every aspect of British popular culture.

Homosexual culture; once regarded as closet behaviour is now well and truly out of the closet and almost socially obligatory, one only has to look at the obsequious endorsement by institutions like the Anglican Church, parliament, BBC to see that the statement Devlin made about society setting a higher moral standard does not bear any relevance anymore.

We only have to look at the new icons of our age to gauge society, the addition of video and computer generated violence, the proliferation of hardcore internet pornography and the grossly sick torture porn subgenre of the film industry. Even media megastars like Madonna, Amy Winehouse and Lady Gaga the new influences for millions of young people and yet their looks and behaviour is worse than what we would expect from common street prostitutes.

When we look at society today one cannot help but ask has society really benefited from the raising of the moral bar?

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