The following are short papers originally delivered orally at a series of seminars which began in November 2001 and is still continuing.
Recent decades have witnessed enormous shifts in people’s attitudes towards morality, and these shifts have often been accompanied by changes in our laws. We are still undergoing such changes today, particularly in areas touching upon our most profound convictions about human life. Recent advances in biotechnology have only served to accelerate the process of change. In the last 35 years, we have seen the advent of in vitro fertilisation and, if this week’s newspapers are to be believed, human cloning is already with us.
Are we happy about this situation? And if not, are we – particularly those of us who are lawyers – doing enough about it? Whether we like it or not, the law is directly involved. Less than a fortnight ago, the High Court had to decide whether the product of CNR (cloning) is an “embryo” within the meaning of Section 1 of the Human Fertilisation and Embryology Act 1990. Do we, as lawyers, have a particular responsibility to try to maintain the moral integrity of our laws? We cannot begin to answer such questions without first clarifying the nature of the relationship between law and ethics, which is the purpose of this meeting.
We all know that in constitutional theory, the will of Parliament is sovereign. But does that mean that the will of the majority, as expressed by Parliament, is supreme and unfettered? What about right reason? Surely there is a link between freedom and truth, and that link, which is provided by ethics, should guide our laws. Otherwise, won’t our cherished democratic ideals degenerate into totalitarianism?
The deep, innate human yearning for freedom is obvious to all. Nowadays, there is a tendency to elevate freedom into an absolute, indeed in some quarters the only absolute. But freedom cannot be an end in its own right, or it becomes self-defeating. If there are no constraints of any kind, freedom ceases to have any content or meaning. As Burke put it: “Liberty must be limited in order to be possessed.” If we turn individual freedom into an end in its own right, then the private conscience becomes the autonomous source of moral values. Truth itself is then completely subjective, and so it too ceases to have any content or meaning, except in the mind of the individual: “you have your truth, and I have mine”. Ethics in turn becomes relative, declaring that each member of society must pursue the behaviour he thinks best, without restraint from law, provided only that his activity doesn’t inhibit the freedom and actions of others. This is ethical relativism, which denies any objectively knowable moral truth.
But surely freedom must be ordered to truth in some way? There can indeed be no morality without human freedom, but mustn’t that freedom be a truthful freedom, one that respects the nature and dignity of the human person? It cannot be enough to say that the only constraint on freedom is that one must not harm the freedom of another. That is a meagre and impoverished view of the human person precisely because, by elevating freedom into an absolute, it insulates each individual from his fellows. If each individual has absolute autonomy, “people inevitably reach the point of rejecting one another. Everyone else is considered an enemy from whom one has to defend oneself. Thus society becomes a mass of individuals placed side by side but without any mutual bonds.
But the truth about the human person is surely that we find ourselves precisely in our relationship with others, in helping them, even serving them and giving ourselves to others. We have rights precisely because we have duties. In the words of John Donne: “No man is an island, entire of itself.”
Ethics, therefore, links freedom with truth, and especially the truth about the human person. Truth, though, is precisely what some will say is in dispute. In a pluralist and democratic society, the argument runs, there is no agreement on morals and the best the law can do is to accommodate the widest possible range of ethical points of view. It is asserted that an objective truth shared by all is unattainable. Hence, respect for the freedom of citizens, who in a democratic system are considered the true rulers, requires that the absolute autonomy of individual consciences be recognised. Consequently, when establishing the norms which are absolutely necessary for social coexistence, the only determining factor will be the will of the majority. “As a result, we have what appear to be two diametrically opposed tendencies. On the one hand, individuals claim for themselves in the moral sphere the most complete freedom of choice and demand that the State should not adopt or impose any ethical position but limit itself to guaranteeing maximum space for the freedom of each individual, with the sole limitation of not infringing on the freedom and rights of any other citizen. On the other hand, it is held that, in the exercise of public and professional duties, respect for other people’s freedom of choice requires that each one should set aside his or her own convictions in order to satisfy every demand of the citizens which is recognised and guaranteed by law; in carrying out one’s duties the only moral criterion should be what is laid down by the law itself. Individual responsibility is thus turned over to the civil law, with a renouncing of personal conscience, at least in the public sphere.”
We can see something of all this in the currently widespread assumption that because something is lawful, it must necessarily also be morally acceptable. It is a common attitude at all levels of society. Some doctors, for example, regard the law as little more than an extension of their professional code of conduct – a convenient substitute for their own judgment of conscience. It operates even at the level of government decision-making. I recall asking Ruth Deech, then chairman of the Human Fertilisation and Embryology Authority, what were the sources of morality applied by the Authority in advising the government. Among other things, she mentioned “existing statutory law”, from which it appears to follow that their starting point was that anything already legal must indeed be assumed for that reason alone to be morally good.
What, then, is the true nature of democracy? Is politics merely, in the famous words of Bismarck, “the art of the possible”? Or is it the art of upholding the common good? Democracy surely cannot be an absolute, an end in itself, any more than individual freedom. Is it really nothing more than a head count – “one man, one vote”, in which a bare majority has the right to assert its will over a whole people, whatever that will may be?
It was, of course, such inadequate notions of democracy which enabled the likes of Lenin, Hitler, Stalin and Mussolini to foist their monstrous systems on the world. But a sound democracy recognises that it must operate within an ethical framework that precedes it and provides its justification and basis. The late Lord Hailsham stated this principle in his book The Dilemma of Democracy, published in 1978:-
In other words, democracy is not just the will of the majority, or the principle that everyone must have a say. Democracy must uphold the dignity of each person, and it can do that only by guaranteeing the fundamental rights to life, religious freedom and conscience, the right to grow up in the secure environment of a loving family and so on.
If such fundamental human rights are indeed prior to democracy, they must have their origin outside the State, in the nature and dignity of the human person. Since they are not conceded or conferred by the State, or merited or earned by the individual, they must be equal, universal, irrevocable and inalienable. Thus, they cannot be dependent on the individual’s ability to exercise his rights or the State’s willingness to respect them. In a democratic system, for example, they are not confined to those who have the vote. Equally, they do not depend on a person having a particular level of physical or intellectual integrity. The disabled and elderly must have exactly the same right to life as the fit and youthful. And the same also applies to non-viable foetuses and patients suffering from PVS.
From this we can see that we can guarantee basic human rights only if we recognise and understand the true nature of the human person, and this we will find in the Christian tradition. It’s an important matter, because the moment we move away from the rule of law, even in an apparently slight and inconsequential area, democracy ends and dictatorship has already begun. As Lord Hailsham pointed out, this totalitarian dictatorship can emerge from a democratically elected parliament just as much as from an individual tyrant. It can lead to a situation in which the strong (i.e. the majority) discriminate against the weak – for example the unborn, the disabled or the elderly.
But although the dignity of the human person is a Christian idea, it is not unique to Christianity. Even terms such as ‘the sanctity of life’ have found strong support among non-believers. As an example, consider this from Jenny Teichman, a secular agnostic:
From this we can see that the notion that the human person has an intrinsic dignity is not an exclusively Christian idea. Of course, if that dignity is the source of fundamental human rights, then it is the person and not freedom or democracy which is ultimately the true absolute, the true end. And that being so, it can never be ethically right to use a human person as a means to an end. One does not have to be a Christian to appreciate this. Anyone can see that without some moral absolutes there can be no freedom, no democracy and no inalienable human rights. We must have the right to life, so that we do not risk gas chambers, the right not to be sexually abused so we can defend the young against paedophilia, the right to be treated equally and not discriminated against on grounds of sex, creed, illness, old age and so on. For all those reasons we need to recognise a moral truth that guides law, a moral truth which is independent of purely personal opinions and hence of ethical relativism.
What, then, is the true nature of the relationship between law and ethics, between the moral law and State law? They clearly have different ends. The purpose of ethics is to make people good. The purpose of law, on the other hand, is to maintain order in society by upholding human rights and the common good. So law is not there to enforce ethics, but to make it possible for people to live ethically. This has led some to say that the law has no business or connection with morality at all. Yet that is to ignore the law’s pedagogic function, in helping to guide the individual in his morality. And the state’s function in maintaining the common good must include upholding by law certain basic human rights. So it cannot be right to insist, as some do, that the law must simply reflect the standards of behaviour actually practised by people, rather than setting standards, for that is to deny its pedagogic function altogether.
So state law and moral law are not conterminous. Equally, they can’t be mutually exclusive. State law may tolerate things which the moral law condemns. But true tolerance permits without condoning. It may be conducive to the common good for the state to refrain from intervening in certain areas of morality. For example, most people still disapprove of adultery, but it is not a crime. One can easily envisage further examples.
Nevertheless, there must be some things that State law will not even permit, let alone condone. There are certain human rights in respect of which no public good can ever justify any violation or infringement. Indeed, we can go further and say that in some areas, to tolerate any infringement of a particular right would profoundly harm the public good. Even those who say that the will of the majority is the guide to ethics accept this principle. Who, for example, is agnostic about the sexual abuse of young children? No one says “I am against it personally, but I regard it as a matter of individual choice and am prepared to tolerate it for the sake of the public good”. Quite apart from their effects upon the victims, these things do untold damage to the rest of society. Criminal and family lawyers are familiar with the fact that one effect of child abuse is that it is a self-perpetuating form of behaviour, in that the abused all too frequently grows up to be an abuser himself.
There is nothing strange or unfamiliar to lawyers in this notion that certain rights are so fundamental that no violation can ever be permitted, whatever the circumstances. The European Convention recognises it by qualifying some rights but not others. Indeed, as we know, the Convention provides that certain rights cannot be derogated from even in time of war or other public emergency – specifically the right to life (Article 2), the right not to be tortured or subjected to inhuman or degrading treatment or punishment (Article 3) and the right not to be held in slavery or servitude or required to perform forced or compulsory labour (Article 4).
We can reach several conclusions from all this. The first is that although law and ethics are separate, the law must be guided and informed by morality. Any law which is not so guided and informed will be unjust, and hence invalid.
Another conclusion, which follows from the first, is that the will of the majority cannot be the true source of morality. In our own system, therefore, an objectively based morality sets a limit to the authority of Parliament, which in so far as it exceeds that limit is acting ultra vires.
We can go further, and say that freedom and democracy themselves depend on the guaranteeing by the State of certain fundamental human rights which have their origin in the nature and dignity of the human person, not in any man-made code or law. As soon as we tinker with those basic rights, therefore, we are on the road to totalitarianism, and both freedom and democracy are imperilled. Without an absolute right to life, for example, how can we have true democracy or freedom? It follows that we cannot suspend the rule of law in the area of human life under any circumstances, however compelling or heart-rending they may appear to be, since to do so would be to attack democracy itself.
Tom Teague Q.C.