The Law, Politics and Morality
The Right. Hon. Lord Hailsham of Marylebone*

The object of this article is to explore some of the difficulties involved in the
complex relationship between morality, politics, the law, and, where and if it is
relevant, religion. The answer proposed is that the question depends on a correct
analysis of the nature of each of these interrelated but conceptually different
intellectual and philosophical disciplines.

There are all too many people who talk as if it is only necessary to establish that
conduct of a particular kind is either morally a duty or morally wrong in order to be
able to assert that either action by the Government or the law to encourage,
discourage, prohibit, or enforce such conduct more than usually with a criminal
sanction behind it, is not only permissible but necessary. I believe this belief to be
both misguided and demonstrably false.

On the other side of the fence there are just as many reputable characters who
suggest that morality, law and political action by governments have very little or
perhaps even nothing in common with the result that no one of these disciplines of
thought and action ought to have any influence on decision making in any of the
other spheres. Whilst I have more sympathy with the second view than the first, I
believe it to be equally demonstrably false and quite as dangerous if it be allowed to
become a guide to conduct or policy.

In both cases the error lies, partly at least, in a false analysis of the subject. But
the subject is also confused by a tendency on the part of those on either side of the
controversy who seek to argue from first principles to neglect the fact that to found
a valid conclusion all syllogisms require a minor premise as well as a major, and
that the conclusion must logically flow, according to the modes of the syllogism, as
a correct synthesis inferred from both. Admittedly I do not believe in the
Aristotelian basis or technical phraseology of this proposition, but as a mental
corrective to muddled thinking I find it invaluable. It is also a good discipline for
the clergy and hierarchy at least of my own denomination, and perhaps of others,
to reflect that, whilst their first principles in morality (where they have any) may be
impeccable, as judges and analysts of disputed questions of fact (which has to
inform their minor premises) their credentials and qualifications are at least open
to question.

"KG, Chancellor of the University of Buckingham.

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It is, I believe, rather easier to demolish the case of those who seek to exclude
moral issues from politics and law than for those who seek to affirm a one for one
correspondence. As the late Professor H. A. Prichard divined at least as long ago
as 1905 the history of Western moral and political philosophy has very largely
proceeded on the demonstrably false basis of seeking to define the requirements of
law and political authority in terms other than those of the categories of value
judgments to which they are properly applicable. Thus the sophist Thrasymachus
at the beginning of Plato's Republic, Austin the Liberal writer on jurisprudence in
the nineteenth century, and the late Adolf Hitler in the twentieth, all founded
law on a positivist basis by saying respectively that Law is the interest of the
stronger, the command of the ruler, or "das is Recht was der Fuhrer gefiillt." I do not
find legal positivism either in that form or in the more sophisticated language of
Professor Hart who, I believe, propounds the view that law is what the Courts will
decide, at all attractive. The first three at least confuse all law with its relatively
minor component, criminal law, and, in defiance of Montesquieu, confuse the
executive and legislative branches of Government. All four make the error of
seeking a purely formal definition of the subject without reference to its purpose or
content.

More attractive, but equally fallacious, both in its original and in its more
modern forms, is the specious doctrine of utilitarianism, which seeks to find the
justification for law and policy in terms of the greatest happiness of the greatest
number or the common good or the interest of the majority. This at least makes
some effort to establish some criterion of what law ought to be as distinct from
what it is, and to set up a bench mark to distinguish good laws and good policies
from bad. The Alternative Seroice Book of the Church of England rather fatuously
embraces this philosophical heresy by enjoining us all to pray that we may seek the
common good rather than any particular interest.

But, apart from the fact that the philosophical concept of a good which is at the
same time good and common to an entire community and all embracing can be an
ignis fatuus, the whole utilitarian concept breaks down when one reflects that both
individuals and minorities have rights as well as duties, and that one at least of the
functions of law is to protect these against the rest of the world, the weak against
the strong, the less numerous minorities against the more numerous majorities,
the poor against the rich, the vulnerable rich against depredation by the poor and
even occasionally the individual against the rest of the world. Numbers do not
necessarily enter into it, and, so far as the common good is concerned, one of the
functions of law in a civilised society is to protect the interests of the individual
against the state. Attempts to explain law or policy in terms of anything else except
justice (which is indefinable) or virtue (which is equally indefinable) have thus
failed, and, I believe, in principle are bound to fail.

Is there anything to be said on the other side? Is law or its policy simply
concerned with morality and nothing else? Is there, as some would seem to
suppose, a one for one correspondence between the one and the other?

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Clearly this is not so. Some law, and criminal law in particular, has some
secondary concern with states of mind (mens rea as it is called in the jargon as
distinct from external acts, the actus reus as lawyers have illiterately labelled it). But
in the main this is the exception rather than the rule. Law is primarily concerned
with conduct rather than states of mind, and in particular with conduct considered
to have socially desirable or undesirable consequences. In particular law is
primarily concerned with past conduct, with situations which have arisen and come
up for decision even when one is constrained to admit that one of the objects of
legal policy must be to encourage socially desirable conduct and discourage its
opposite. Despite the late Lord Atkin's reference to the lawyer's question in the
Good Samaritan parable, there is no law which says that thou shalt love thy
neighbour as thyself. In Donoghue v. Stevenson I the more modest proposition
achieved by Atkin's judgment was that if a manufacturer was so negligent as to put
a snail in a bottle of ginger beer he might be just as liable in damages to the
ultimate purchaser as the retailer of the same bottle caught by the provisions of the
Sale of Goods Act in so far as these involve a warranty of quality.

Neverthless, though one may reject the general positivist thesis that law is what
the Courts will decide, one may readily embrace the theory, which is not positivist,
that law is concerned exclusivelywith that body of doctrine which the Courts must
apply and with the matters which are brought before the Courts to which they are
bound to apply it and the methodology or procedure they adopt to set about their
business. The qualification is that the body of doctrine itself is to be seen as a
coherent whole and cannot be defined except in terms of a set of moral values
which can neither be argued away nor defined out of existence, but nevertheless
are not to be supposed to correspond on a one for one basis with the precepts laid
down for the individual conscience by, say, the Ten Commandments or either of
the Two Great Commandments said to constitute the Golden Rule. This is
because Courts are concerned with the practical questions of enforceability, the
existing body of doctrine established, in the case of common law by precedent, in
the case of statute law by the words on the Statute book; whereas morality is
concerned with the exercise of what we choose to believe is our free will.

So far, I have endeavoured to show that morality and law, though
interconnected, have no one for one correspondence with one another. But there
are now two other interconnected components to this quadrilateral, the policy of
Governments and the legislation of Parliaments. Despite Montesquieu and the
valiant, though partly unsuccessful, attempts on the part of the Founding Fathers
of the American Constitution to separate the two entirely, in countries, like our
own, equipped with a fully developed Cabinet system, these two arms of
government are inextricably intertwined, even though in theory they remain
conceptually distinct.

1. [1932] A.C. 562.

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It would, I think, be morally repugnant even to suggest that the policy of
Government or the enactments of the legislature can or should be wholly
disconnected from moral imperatives or prohibitions. But I would at least claim
that it is equally absurd to argue that there could be a one for one correspondence
between the actions of Government (internationally or internally) or legislatures
and the private morality of individuals. In part, of course, what I have already said
about the relationship between law as administered in the Courts and private
morality applies equally in this sphere. There is a fundamental philosphical
distinction between what is imposed voluntarily as the result of the dictates of
conscience and the exercise of free will from within and what is imposed externally
by the implied threat of physical coercion or sanctions by the will of third parties,
in this case political authority. It is this which explains much of the debate which
has occurred over a wide range of subjects between Ministers, prelates and priests
on the one hand and practising politicians on the other. It is also at the root of
much debate within Parliament between the rival political factions there
represented. It is quite one thing for a preacher to ask his congregation to put their
hands in their own pockets and contribute more generously to Christian Aid, the
Church of England Children's Society, the friends of the local hospital or the
repair of the heating apparatus in the Church. But, although some or all of these
may be entitled to some support from public funds, quite different moral and
practical considerations arise when a debate takes place as to whether and to what
extent each or any is to be supported by contributions from taxes, public
borrowing, or local rates under threat that if the component of such taxes is not
paid, the tax or ratepayer will be sold up or put in gaol. Still less is it appropriate to
employ the language of "generosity" or "meanness" to officials or Ministers
whose duty it is to spend not their own but other people's money.

There is another factor, also of a practical nature which politicans have to take
into account, and that is the relationship between the global total of public monies
they expend, and the national capacity to generate new wealth upon which
ultimately all public expenditure has to draw. Clearly this is not simply a question
of quantity. A new road may actually assist the generation of new wealth. The same
is not true, at least over the same time scale, of money spent on transporting grain
by air to Ethiopia, or a good many other, even when wholly laudable, ways of
spending public money.

The difference is even more stark when one enters the field of international
relations. Subject to treaty and convention (in which I include the Charter of the
United Nations) international law is still based on the sovereign independence of
international legal persons, that is states, primarily as regards their internal affairs,
and, to a limited extent, even as regards their international obligations, and there
are no more determined upholders of this principle than the members of the
Eastern bloc and the Chinese Peoples' Republic. The demand for independence
of former colonial territories against their former imperial sovereigns was based on
precisely the same theories.

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Now it so happens that the great majority of the human race live under regimes
morally, socially or politically repugnant to the morality of others. A system of
"sanctions", economic or overtly military, designed to prevent the outbreak of
aggressive war with an apparatus for invoking them was instituted by the Charter
of the United Nations, and with good reason after the outbreak of two world wars
and the failure to prevent the second after the failure of the milk and water regime
of the old League. But a habit has grown up of States or groups of states (often
themselves not beyond reproach) imposing unilaterally or demanding the
imposition by others of "sanctions" of doubtful efficacy against regimes the
internal or external policies of which they disapprove. I myself doubt the efficacy of
most such measures, but I question still more strongly the principle of selectivity
either of the proposed victims or the proposed authors of such sanctions, and the
morality or legality of the basis for their imposing them. I may be right about this,
or wrong. I do not pretend that the argument is an easy one or that there are not
considerations to be weighed on both sides. But this is irrelevant for my present
purpose. My present purpose is simply to claim it as obvious that the kind of
considerations, ethical, or practical, to be weighed on either side are not identical
either with the dictates of private morality on the individual conscience, or with the
considerations which should weigh with governments or Parliaments in the
determination of their internal policies or their domestic legislation, and that both
differ in principle from the sort of policy considerations which should weigh with
states or groups of states which constitute the international community.

Hitherto I have spoken of a quadrilateral, consisting of private morality, the law
as administered by a system of courts, the public policies of Governments, and
legislatures, in relation both to their own peoples, and to other members of the
international community of which they are part. The moral I have sought to draw
is that, though ethical considerations and morality are not to be divorced from any
of these, their application to the different fields to which I have referred is in each
case quite different, and any attempt to apply a one for one correspondence
between any two of them is doomed from the start to failure.

I now come to the fifth, and all pervasive element, namely religion or the
absence of it. This is a much more difficult discussion and for two reasons. The
first is that, if one believes, as I personally do, in "natural law" , a most difficult and
controversial idea, both its constraints and imperatives are as apparent to an
intelligent and sensitive agnostic or a theist as they may be to a devout and
practising Christian. The second is that religion is not primarily about morality at
all, but about the private and public worship of God, or gods, whether Jehovah,
Apollo, Kali, Shiva, Priapus, Cloacina, Hathor or whatever. Nonetheless no
religion has been able wholly to distance itself from some aspects of morality. Old
Father Zeus, who was really a horrible old reprobate who killed or castrated his
father, turned himself into a bull or a swan to satisfY his sexual inclinations, and
played a wholly irresponsible part in the siege of Troy, none the less protected
suppliants, and punished breakers of oaths, and those who abused the laws of

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hospitality. As pagan religion developed, more and more reflective pagans came to
think in terms of religious sanctions behind moral laws, and this has happened all
over the world in apparently disconnected religious cultures. But, of course, as a
Christian, I am primarily concerned with the monotheistic religion attributed to
Abraham, and still embodied in the three world religions of Judaism, Islam, and
Christianity, the peoples of the Book as the Moslems call them. To them at least
religion is all pervasive, and all absorbing, and all three lay down different, but
closely related, moral codes designed as a pattern for human life, and for every
human society to a greater or less extent a pattern of social behaviour, and even
jurisprudence. It is of these that I mostly refer when I talk about the relationship
between religion and my quadrilateral of private morality, law as administered in
the courts, the policy of governments, and Parliamentary legislation. It is indeed
against the professional casuists and clergy of established Churches, synagogues,
mosques, and the like that I direct my criticisms. The most serious of these is their
fundamental and all too common error of identifYing themselves and other
members of their cloth with the religious community itself in which they, with an
important but, nonetheless, very highly specialised, function of their own, are
numerically an extremely insignificant minority. There is no gainsaying the fact
that most Christians, Moslems, and Jews are what one would describe as laymen
and not pastors, priests, rabbis, Ayatollahs or whatever, and though no one in a
free society would deny the legal right of these specialists of limited function to
express their own opinions (however foolish or perverse) on whatever subject they
choose, the idea that they have some special access to infallibilityin areas of which
they have no special access to truth, such as those in which their laymen have and
they have not specialised experience, is too ridiculous to merit serious
consideration. To begin with, it ignores the simple proposition with which I began,
that in order to found a credible opinion on any contentious matter, it is necessary
to make a correct analysis of the practical and factual basis in order to form a
reliable minor premise. In the second place, I wish that, in practice, they would
understand that their primary function is to carry out their specialised duties, and
contentious activities and opinions, especially when intemperately expressed may
actually interfere with these. It is generally accepted that Royal persons, judges,
civilservants, and officers in the armed forces must put some professional restraint
on their right of self expression and curb their tongues and actions in order to
perform their several functions in society. Might one not also plead for a certain
degree of self discipline in the same direction on the part of religious dignitaries if
they are to maintain the loyalty and coherence of their various flocks? There is, I
believe, a sound philosophical and historical reason for expressing this hope. The
religions of the Book have aptly been described as the salt in the dish, and the
leaven in the lump of dough. It may, and should, be all pervasive, but, being all
pervasive, it performs a similar function in the separate parts of the same whole. In
a primitive state of society it may be difficult to discern whether a Moses was
Commander in Chief of the Armed Forces, Prime Minister, Archbishop of

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Canterbury (or even Pope or Ayatollah), Lord Chief Justice, Chancellor of the
Exchequer or even, for a period, leader of the Opposition. Indeed there were
phases in the career of Moses when he appeared to occupy each one of these
several posts. In a more sophisticated political, social, economic, and religious
community it may be that these several functions are better performed by different
sets of people. However this may be, I hope to have established that, though ethical
and moral considerations can never be disconnected from policy, domestic or
international, law or legislation the relationship betwen each and all the others
differs both as to the principles involved and as to the facts, and that the functions
of those concerned with each to some extent disentitle them from claiming to
speak with authority on the specialised functions of the other.

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