'Should Law Improve Morality?' (Oxford Legal Studies Research Paper No. 73/2013, forthcoming in
Criminal Law and Philosophy) by Leslie Green
notes that
Legal theorists have long debated whether law should enforce social morality. This paper explores a different problem: should law (try to) improve social morality? I argue that it should. First, against conceptual and empirical doubts, I argue that it is possible for law to improve morality. Second, against certain moral objections, I argue that it is often proper for law to try to improve it. Third, I offer an example: law should try to improve our social morality of sex, by trying to re-shape what we regard as valid consent to sexual activity. Along the way, the ideas of H. L. A. Hart and Patrick Devlin are examined, as are the empirical and policy claims of Paul Robinson and his collaborators.
Green comments that
Lawyers and philosophers have long debated whether law
should enforce social morality. No, says J. S. Mill, unless doing
so prevents harm to others. Yes, says James Fitzjames
Stephen, so that intentionally inflicted suffering can affirm and
validate the community’s moral judgments. H. L. A. Hart
replies: never, unless doing so attains some good that
outweighs the loss of liberty and happiness that come with
enforcement. Patrick Devlin rejoins: on the contrary,
provided what is at issue is a moral standard whose breach an
average person would regard with intolerance, indignation, and
disgust, we should enforce it. Ronald Dworkin dissents: but
that would be to give force to mere hostilities and prejudices,
and those do not even count as moral views. Joseph Raz
mediates: it is permissible to uphold social morality when the
morality enforced helps constitute a valuable form of life and
the ‘enforcement’ makes no or minimal use of coercion.
The debate about the enforcement of morality represented
in these well-known arguments is far from settled. Disputes
continue at the theoretical level, for none of the above
doctrines is entirely satisfying and, as with all philosophical
arguments, when debate progresses it transforms the questions
and our sense of the conditions an adequate answer must
meet. And the enforcement of morals is not just a problem
that persists for theory; it continues to be controversial in
practice. In Anglo-American political cultures, the appetite for
enforcing social morality remains healthy and on some issues
is ravenous. It is an obstacle to reform of unjust and
ineffective systems of criminal punishment. How to address
this confounds even sophisticated legal actors. In the law of
obscenity, for example, courts can in one breath disown
moralistic interpretations of what is obscene, declaring that it
is to be defined not by violations of community standards but
instead by reference to harmfulness, but then in the next
breath affirm that what counts as ‘harm’ is whatever the
community regards as harmful. The controversies also spill
across national boundaries. Moral views that were once an
unremarkable part of our own cultures and then became as
minority, even pariah, outlooks, are being given new life. It
was not so long ago that our societies held it morally
unproblematic that men should be entitled to control women’s
lives; that family honour should trump individual well-being;
that children are vassals of their parents; and that law should
support the true religion. Our moral consensus against such
attitudes is destabilized by the mobility and migration of
peoples who take a different view. Liberal societies have not
always reacted well to such fresh encounters with their moral
pasts. Much of the backlash against 1980s-style
‘multiculturalism’ is bound up with frustration, or perhaps
weariness, at having to confront these views all over again, and
now not as philosophical hypotheticals but as the actually-held
values of neighbours and co-workers.
So the theoretical and practical issues about the
enforcement of morality remain hugely important. Here, I
poach a few ideas and arguments from that debate, but only in
service of a different project. I focus instead on a problem
that has been almost entirely neglected by legal theorists. The
issue of the enforcement of morals begins on the footing that
a society’s morality is already established—no doubt including
diversity and complexity and open to interpretation—but
nonetheless in a relatively stable existence. The enforcement
question asks how law should respond to that actually-existing
morality. But that image is inaccurate if it is anything other
than a freeze-frame, artificially holding things constant while
we inspect various details in the picture. This can mislead,
because social morality is not fixed or given; it is fluid and
dynamic. Like any set of customary norms—for example, the
rules of grammar, or fashion, or etiquette—a society’s morality
is in flux. What is more, one of the forces that moves and
shapes that morality is its law. Or so I shall argue. And if that
is correct we have a further issue to consider: how, if at all
should law attempt to shape our morality?
In contrast to the very rich literature on the enforcement of
morality, contemporary legal philosophy has almost nothing
offer us on this question. Here, I try to make a start on it,
looking to some recent work in legal sociology for help. I
begin with some general observations about social morality.
Next, I consider how such a thing could change, and—what is
different—how it could be changed, including through the
instrumentality of law. If morality can be changed, we need to
consider whether it should be changed, and if so how. There is,
obviously, no general answer to this last question, save the
formally correct but empty one: law should attempt to change
social morality for the better. But to exemplify the sort of
analysis I think worth pursuing, I conclude with some less
empty, but more conjectural, reflections on a case for changing
aspects of our social morality about sex. I choose the example
because it is the area in which the debates about the
enforcement of morals were fought out, and also because it is
where we now find some of the sharpest conflicts between
liberal and more ‘traditional’ moralities.
