Citation(2004) 16 SAcLJ 9
Date01 December 2004
Published date01 December 2004

Part 1: The Separation of Law and Morals

Whenever scientific advancements cause major changes to the world and the way we live, deep questions regarding the necessity of legal and ethical constraints to maintain a harmony of balance will arise. This essay hopes to identify and define the boundaries of law and ethics so that debates as to their respective roles, independently as well as conjunctively, may be carried out with some clarity.

No light, but rather darkness visible

Served only to discover sights of woe 1

1 The rapid and tremendous advancements of bioscience are forcing us into dark and uncertain areas of law and ethics just as they are extending the horizon of what we think is humanly possible. If our lives are going to be vastly influenced by it all, we might need to be comforted that it will be for the better, and that all the nefarious and unwanted features, side effects and consequences are contained, if not eliminated. And so we turn to law as the instrument of control; but we flounder in the search for clear and objective directions as to what is right and wrong, lawful or unlawful, ethical or unethical in bio-scientific research and related activities. Why might that be so? It is generally never easy to determine an objective standard as to what is right and wrong, and often when we think that we had a good answer, we seem to have difficulty relying on it consistently. That difficulty is multiplied when we grapple with bioethical matters. Many such questions are deep, fundamental ones that have no universally acceptable answers. Philosophical and theological opinions are deeply divided over questions such as “When does life begin?” or “Why can’t we clone a human being?” These are some of the kind of questions that entwine issues of morality with law, thus creating a morass of ethical-legal issues in its wake.

2 I shall hope to advance in this essay, the view that legal positivism may provide a plausible philosophical response to

uncertainties arising from legal-moral conflicts. Isaiah Berlin had a clear vision of the purpose of philosophy. He said:2

The perennial task of the philosopher is to examine what seems insusceptible to the methods of the sciences and everyday observation, eg categories, concepts, models, ways of thinking or acting, and particularly ways in which they clash with one another, with a view to constructing other, less internally contradictory, and (though this can never be fully attained) less pervertible metaphors, images, symbols, and systems of categories.

The relevance of legal positivism in the way that I shall be advocating concerns mainly two of its three root doctrines stemming from utilitarianism, namely, the separation of law and morals, and the importance of analysis in respect of legal concepts.3 These doctrines are modular, independent and separate doctrines in themselves such that the falsity of one does not affect the other two. Legal positivism, and utilitarianism as well, are likely to be misunderstood if the independence of each doctrine is not appreciated.4 The questions concerning the minimum moral content of law, for example, may give rise to confusion if issues relating to the separation of law and morals are considered in the context of the sovereign birth of law.

3 Advancements in bio-scientific discoveries have created a deep abrasion between two naturally human inclinations. One is our appreciation of what such discoveries can do to better our lives, and the other, an inexpressible fear of the extent of moral compromises we might be required to make to accommodate scientific progress. The problem is not new. It has only grown more complex. That fear is borne from a cherished belief that society is held together not only by laws but also by normative moral principles. The further we advance into the world of awesome science the more nervous we become. The root of much uncertainty lies in the inability to discern how laws should be shaped in order to keep science, the scientific community, and the beneficiaries within the limits of moral integrity. This is a legitimate and important concern. There are bound to be many responses that one can adopt. It is hoped that this essay will clear one small but significant area so that any position that one chooses to take will at least be unobstructed by the

confusion between what the law is and what it ought to be (the Separation Thesis), that is to say, through appreciation of one of the central doctrines of legal positivism. The statement that what law is and what it ought to be is often referred to as the question of the separation of law and morals. The attraction and convenience of that terminology has been, in fact, the cause of much confusion, as we shall see.5 It bears reminding that legal positivism is not without its critics, but it has a host of eminent scholars among its founders and supporters, the leading light being Herbert Lionel Adolphus Hart. It is essential, therefore, not only to express and simplify the doctrine in question but also to deal with the concerns of its critics.

4 When, in the course of defending a particular school of thought, one has to confront its opponents, conventional wisdom of scholarship dictates that one does not choose the weakest, but the strongest. The most formidable opponents to legal positivism, at least in the area concerning the separation of law and morals, are undoubtedly, Lon Fuller, Patrick Devlin, and Ronald Dworkin. In this short essay I shall focus only on the narrow issues concerning the separation of law and morals. That is an area that Fuller confronted Hart directly in. The Devlin-Hart debate concerned the enforcement of morals, which is a different matter but nonetheless relevant to any discussion on the separation of law and morals. Dworkin’s challenge to Hart will require a commentary on a much larger scale, but I hope to focus on one or two areas of Dworkin’s criticism to show that they do not affect the positivist’s Separation Thesis.

5 It is important first, to establish as much as possible, the perimeters of the ubiquitous word “Law”, which John Austin defined, as “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”.6 He then expounded the great divide. Laws set by men to men he calls “positive law”. Laws set by God to men he calls “natural law”.7 He did not believe that the determination of moral conduct lies solely in the province of natural law; he conceived a third category of law — laws set by men in pursuance of legal rights or generally held by men in regard to human conduct, but unlike positive

law, such laws do not emanate from a monarch or a political superior.8 I shall return to this aspect shortly because it is the primary target of Dworkin’s criticism of Hart.

6 The debate between legal positivists and natural law lawyers (as to whether law requires a moral content) had waxed and waned for a very long time. It had acquired a lasting prominence in the debate between Hart and Fuller. When Hart fired the first of his massive salvos in 1958 he clearly recognised the proponents of natural law (those who adhere to the belief that what the law is and what the law ought to be are somehow indissolubly fused or inseparable) to be the nemesis of legal positivism. Nowadays the debate continues mainly in academic circles. The unrelenting progress of bioscience and biotechnology, in the meantime however, has created a need for clear and careful thinking about the censorship of moral behaviour. There are many who fear that unless legal and moral philosophy can keep pace in shaping the legal and ethical framework for both the research and the researchers and practitioners of bioscience, “the philosophy of science” alone will become the dominant philosophy. They fear that should that happen, philosophy might be “consigned together with theology and other speculative disciplines to the museum of curious antiquities as astrology and alchemy have long ago been relegated”.9 Thus, a study of the proper relationship between law and morals is important not only as a starting point, but will also provide a balanced and comprehensive view of such an extensive subject. Ever so often, the attention of scientists, lawyers, and the public, is diverted from the ethics of the research to the ethics of the researcher. Implicit in the usual expressions of concern for the confidentiality of patient information and the dignity of human subjects, for example, is the assumption that the ethics of the research itself is morally acceptable, and the focus shifts immediately to the ethics of the researcher.

7 The hope that the courts might rely on a general sense of morals or “public morals” to keep scientific research along the straight and narrow is likely to be a futile one. Shaw v Director of Public Prosecution10 illustrates the reluctance of the courts to enforce “public morals” that are not law. Frederick Charles Shaw published a 28-page booklet called “The Ladies Directory”. It was a list of names and contact details of prostitutes. He was charged, inter alia, for conspiracy to corrupt public morals. The House of Lords dismissed his appeal against conviction, rejecting his

argument that there was no common law offence as “conspiracy to corrupt public morals”.11 Viscount Simonds encapsulated the position of the majority in his adoption of Lord Mansfield’s remark in R v Delaval12 that the court of King’s Bench was the custos morum of the people and had the superintendency of offences contra bonos mores. Viscount Simonds asserted that the court had “a residual power, where no statute has yet intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare”.13 Lord Reid was exuding signs of the true legal positivist. While conceding that criminal conspiracy was a known offence, he held, however, that there was no known...

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