Are Morality and Law Connected?

In the early sixth century, Athenian statesman and lawmaker Solon developed a set of reforms in Ancient Greece to overcome aristocratic exclusivity by enabling all subjects to access justice. Known as Solon’s Laws, the aim was to mediate the conflict growing between the aristocracy and peasantry. How did Solon decide this moral reformation? Revealed in his poetry, he saw the threat to Athenian culture and social order caused by legal codes previously enacted by ancient legislator Draco that was characterised by inequity, brutality and fear.

“By great men is a city destroyed, and into monarchy’s slavery.

The people through ignorance fall.

Once raised to great heights such me are easy to restrain.

Then after it is befitting now to heed al noble deeds.”[1]

Morality can be defined both descriptively, that is to refer to codes of conduct expected by society or institutions that are accepted by individuals as a means to regulate behaviour, or normatively that, where a person meets certain intellectual and cognitive conditions, is able to regulate their behaviour rationally.[2] What connections exist, if any, between law and morality?

H.L.A. Hart made indirect but necessary connections between law and morality, namely that of law to legality, legality to justice, and then finally justice to morality.”[3] He nevertheless denied any direct relationship between law and morality, and this separability thesis regards morality as having merely a contingent connection with the law,[4] and therefore while morality may be consistent with the law, it does not hold any possible legal systems and do not affect the law itself. Hart’s legal positivism, which is a school of analytical jurisprudence, is grounded in empiricism where, according to David Hume in the Treatise, virtue is not natural and while it may produce feelings of pleasure that may itself be a natural part of our human disposition, it nevertheless arises artificially.[5]

Frederick Nietzsche notes that positive law or Gesetz is law that exists after being thought of and firmly set by the will (Wille) to power.[6] In Kantian philosophy of law ‘positive’ is positional and therefore set by “the will of the legislator.”[7] For Hart, the normative foundations of legal systems are social[8] and rejects the Kantian view in favour of an empirical view where the rule of law exists because it is practiced socially.[9] Three secondary rules follow as procedural remedies to generate methods, changes or alternatives within societies, which are the rules of recognition, rules of change, and rules of adjudication[10] and become the criteria that validates the practice of regulating through rules of guided behaviour, duties and obligations within social interactions.

Ronald Dworkin had another view and critiqued Hart’s legal positivism. He presented in The Concept of Law that legal facts ultimately depend on social positions alone. Using an interpretative theory of law, Dworkin has rejected both schools of reasoning – namely natural law theorists and positivism – but instead adopted a balance between the two; that the law is both social and moral. His comprehensive theory of adjudication argues that judicial interpretation is a process of both discovery (conventionalism) and creation (legal pragmatism), which is that principles of rights and responsibilities can be explicitly discovered in past decisions and where creation is to take those principles and apply it to what we ought to do with consideration of who would benefit most from the community.[11]

This can be seen by his response to hard cases, which is a reference to cases where judges are confronted with the problem where there is no existing rule that would govern the outcome of a case. Judges can adjudicate and make new laws that can be enforced on the parties involved. As these judges are unelected, the system must be undemocratic and rejected the idea of judicial discretion.[12] He notes that judges instead use distinctions between rules and principles as part of their judicial reasoning during hard cases, deciding through legal principles including justice and fairness.

Common law in Australia is made and developed by judges, and according to Sir Owen Dixon in his public lecture Concerning Judicial Method that court decisions conforms to “ascertained legal principles and applies them according to a standard of reasoning which is not personal to the judges themselves.”[13] Dixon noted the High Court of Australia could not refer back to precedents and where no appeal can be made to the final decision, which challenges the process of declaratory reasoning.[14]

This raises the issue of authority and according to Joseph Raz, the nature of authority should rest on the Sources Thesis, which is grounded in social rather than moral facts.[15] “Raz teats the moral considerations as extra-legal”[16] and that is to say, must think beyond and apply standards to resolve the hard case. In the case of Mabo,[17] the high court overturned a discriminatory doctrine that flagrantly ignored the rights of indigenous peoples and this doctrine – which was legislative at the time – did not assume authority over the separation of powers (between the judicial and legislative functions) but rather applied its very purpose of justice. It was a shift from the declaratory theory to what was noted by the Hon Justice Kirby as a “present tendency toward judicial creativity”[18] and an exercise of judicial function.

Legal reasoning is the decision making process where new laws can be justified through a coherent system of principles, and in Harris v Digital Pulse Pty Ltd[19] Mason P articulates that the outcome or scope of a judicial decision and the responsibility of that decision when becoming a precedent requires robust thinking and must include the implicit values of that decision.[20] Dworkin would agree. Accordingly, when a judge is required to decide a ‘hard’ case, s/he does not make law in the strictest sense but rather, using principles implicit in other legal practices, determines novel or interpretative proposal of new rights and responsibilities and therefore a balance between declaratory and interpretative.

“When a judge declares that a particular principle is instinct in law, he reports not a simple-minded claim about the motives of past statesmen, a claim a wise cynic can easily refute, but an interpretive proposal: that the principle both fits and justifies some complex part of legal practice, that it provides an attractive way to see, in the structure of that practice, the consistency of principle integrity requires.”[21]

The Blackstonian view that the role of the judge is to determine not by “his own private judgement, but according to the known laws and customs of the land”[22] had long established the declaratory theory as the primary method of applied judicial decisions. Kirby notes that a mature common law system is a balance between the strict legalism and judicial consideration, where the latter includes both principle and policy.[23] Principles include an exercise of moral reasoning and from a Humean perspective, a general sense of common interest as interpreted by the community. The Australian Constitution enables a sense of continuity and sustainability as society progresses and evolves and ultimately changes their moral position, however whether the law itself is naturally bound to morality remains debatable.

[1] Ron Owens, Solon of Athens: poet, philosopher, soldier, statesman, Oregon: Sussex Academic Press (Fragment 9) (2010) p173

[2] Bernard Gert and Joshua Gert, “The Definition of Morality“, The Stanford Encyclopedia of Philosophy (Fall 2020 Edition)

[3] J. Gardner, “Hart on Legality, Justice, and Morality”, in: J. Gardner, Law as a Leap of Faith, OUP, 2012

[4] Leslie Green and Thomas Adams, “Legal Positivism”, The Stanford Encyclopedia of Philosophy (Winter 2019 Edition)

[5] Cottle, Charles E. “Justice as Artificial Virtue in Hume’s Treatise,” Journal of the History of Ideas (40:3) 1979, pp. 457–466

[6] Siemens, Herman. “The Problem of Law and Life in Nietzsche’s Thought.” CR: The New Centennial Review (10:3) 2010, pp. 189–216

[7] Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right, trans. W. Hastie (Edinburgh: Clark, 1887), p55

[8] Stephen Perry, “Hart on Social Rules and the Foundations of Law: Liberating the Internal Point of View,” Fordham L. Rev. (2006) 1171

[9] Op. Cit., “Legal Positivism”

[10] Hart, H. L. A. The Law as a Union of Primary and Secondary Rules. Oxford University Press (1961) 76-77

[11] Ronald Dworkin, Law’s Empire. Cambridge, MA: Harvard University Press (1986) 93

[12] Noting that there is a difference between ‘strong’ and ‘weak’ discretion.

[13] The Right Honourable Sir Owen Dixon, G.C.M.G, “Concerning Judicial Method,” [1956] 29 ALJ 468, p4

[14] The Hon. Justice K.M. Hayne AC ‘”Concerning Judicial Method” – Fifty Years on,” Fourteen Lucinda Lecture, Monash University Law School (17 October 2006)

[15] J. Raz, “Authority, Law, and Morality”, in: J. Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics, OUP, 1995

[16] Ten, L. C. Mind, vol. 90, no. 359, 1981, pp. 441–443 (Book Review)

[17] Mabo & Ors v The State of Queensland (1992) 175 CLR 1

[18] The Hon Justice Michael Kirby AC CMG , “The High Court and the Creative Role of the Common Law Judge” Warrigal Publications, 1993

[19] (2003) 56 NSWLR 298.

[20] Darryn Jensen, “Theories, Principles, Policies and Common Law Adjudication,” Australian Journal of Legal Philosophy (2011) 42

[21] Op cit., Law’s Empire p228

[22] William Blackstone, Commentaries on the Laws of England, vol 1 (Cavendesh, 1766) 69

[23] In Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad  Stephen J warns the use of policy when determining hard cases, noting that, “[t]o apply generalised policy considerations directly, in each case, instead of formulating principles from policy and applying those principles, derived from policy, to the case in hand, is, in my view, to invite uncertainty and judicial diversity.”