VIII. JUSTICE AND MORALITY

We have found it necessary, in order to elucidate features distinctive of law as a means of social control, to introduce elements which cannot be constructed out of the ideas of an order, a threat, obedience, habits, and generality. Too much that is characteristic of law is distorted by the effort to explain it in these simple terms. Thus we found it necessary to distinguish from the idea of a general habit that of a social rule, and to emphasize the internal aspect of rules manifested in their use as guiding and critical standards of conduct. We then distinguished among rules between primary rules of obligation and secondary rules of recognition, change, and adjudication. The main theme of this book is that so many of the distinctive operations of the law, and so many of the ideas which constitute the framework of legal thought, require for their elucidation reference to one or both of these two types of rule, that their union may be justly regarded as the ‘essence’ of law, though they may not always be found together wherever the word ‘law’ is correctly used. Our justification for assigning to the union of primary and secondary rules this central place is not that they will there do the work of a dictionary, but that they have great explanatory power.

We must now turn our attention to the claim which, in the perennial discussion of the ‘essence’ or the ‘nature’ or ‘the definition’ of law, has been most frequently opposed to the simple imperative theory which we have found inadequate. This is the general contention that between law and morality there is a connection which is in some sense ‘necessary’, and that it is this which deserves to be taken as central, in any attempt to analyse or elucidate the notion of law. Advocates of this view might not be concerned to dispute our criticisms of the simple imperative theory. They might even concede that it was a useful advance; and that the union of primary and secondary rules was indeed more important than orders backed by threats as a starting-point for the understanding of (p. 156) law. Their argument would, however, be that this is not enough: that even these elements are of subordinate importance, and that until the ‘necessary’ relationship with morality is made explicit and its central importance seen, the mists which have so long clouded the understanding of law cannot be dissipated. From this point of view the questionable or challengeable cases of law would not merely be the law of primitive societies or international law, which have been considered doubtful because of their lack of a legislature, courts with compulsory jurisdiction, and centrally organized sanctions. Far more questionable from this point of view is the title to be treated as law of those municipal systems which exhibit the full complement of juge, gendarme et legislateur but fail to conform to certain fundamental requirements of justice or morality. In the words of St Augustine¹ ‘What are states without justice but robber-bands enlarged?’

The claim that between law and morality there is a necessary connection has many important variants, not all of them conspicuous for their clarity. There are many possible interpretations of the key terms ‘necessary’ and ‘morality’ and these have not always been distinguished and separately considered by either advocates or critics. The clearest, perhaps, because it is the most extreme form of expression of this point of view, is that associated with the Thomist tradition of Natural Law. This comprises a twofold contention: first, that there are certain principles of true morality or justice, discoverable by human reason without the aid of revelation even though they have a divine origin; secondly, that man-made laws which conflict with these principles are not valid law, ‘Lex iniusta non est lex.’ Other variants of this general point of view take a different view of both the status of principles of morality and of the consequences of conflict between law and morality. Some conceive morality not as immutable principles of conduct or as discoverable by reason, but as expressions of human attitudes to conduct which may vary from society to society or from individual to individual. Theories of this form usually also hold that conflict between law and even the most fundamental requirements of morality is not sufficient to (p. 157) deprive a rule of its status as law; they interpret the ‘necessary’ connection between law and morality in a different way. They claim that for a legal system to exist there must be a widely diffused, though not necessarily universal, recognition of a moral obligation to obey the law, even though this may be overriden in particular cases by a stronger moral obligation not to obey particular morally iniquitous laws.

The full assessment of the different varieties of theory asserting a necessary connection between law and morals would take us far into moral philosophy. But something less than this may provide any thoughtful reader with enough to form a reasoned view of the truth and importance of such claims. For this purpose what is most needed is a separation and identification of some long-entangled issues, which we consider in this chapter and the next. The first of these issues concerns the distinction within the general sphere of morality of the specific idea of justice and the special features which account for its peculiarly intimate connection with law. The second concerns the characteristics which distinguish moral rules and principles not only from legal rules but from all other forms of social rule or standards of conduct. These two issues are the subject of this chapter; the third, which is the subject of the next, concerns the many different senses and ways in which legal rules and morals may be said to be related.

1. PRINCIPLES OF JUSTICE

The terms most frequently used by lawyers in the praise or condemnation of law or its administration are the words ‘just’ and ‘unjust’ and very often they write as if the ideas of justice and morality were coextensive. There are indeed very good reasons why justice should have a most prominent place in the criticism of legal arrangements; yet it is important to see that it is a distinct segment of morality, and that laws and the administration of laws may have or lack excellences of different kinds. Very little reflection on some common types of moral judgment is enough to show this special character of justice. A man guilty of gross cruelty to his child would often be judged to have done something morally wrong, bad, or even wicked or to have disregarded his moral obligation or duty to (p. 158) his child. But it would be strange to criticize his conduct as unjust. This is not because the word ‘unjust’ is too weak in condemnatory force, but because the point of moral criticism in terms of justice or injustice is usually different from, and more specific than, the other types of general moral criticism which are appropriate in this particular case and are expressed by words like ‘wrong’, ‘bad’, or ‘wicked’. ‘Unjust’ would become appropriate if the man had arbitrarily selected one of his children for severer punishment than those given to others guilty of the same fault, or if he had punished the child for some offence without taking steps to see that he really was the wrongdoer. Similarly, when we turn from the criticism of individual conduct to the criticism of law, we might express our approval of a law requiring parents to send their children to school, by saying that it was a good law and our disapproval of a law forbidding the criticism of the Government, as by calling it a bad law. Such criticisms would not normally be couched in terms of ‘justice’ and ‘injustice’. ‘Just’, on the other hand, would be the appropriate expression of approval of a law distributing the burden of taxation according to wealth; so ‘unjust’ would be appropriate for the expression of disapproval of a law which forbade coloured people to use the public means of transport or the parks. That just and unjust are more specific forms of moral criticism than good and bad or right and wrong, is plain from the fact that we might intelligibly claim that a law was good because it was just, or that it was bad because it was unjust, but not that it was just because good, or unjust because bad.

The distinctive features of justice and their special connection with law begin to emerge if it is observed that most of the criticisms made in terms of just and unjust could almost equally well be conveyed by the words ‘fair’ and ‘unfair’. Fairness is plainly not coextensive with morality in general; references to it are mainly relevant in two situations in social life. One is when we are concerned not with a single individual’s conduct but with the way in which classes of individuals are treated, when some burden or benefit falls to be distributed among them. Hence what is typically fair or unfair is a ‘share’. The second situation is when some injury has been done and compensation or redress is claimed. These are not the only (p. 159) contexts where appraisals in terms of justice or fairness are made. We speak not only of distributions or compensations as just or fair but also of a judge as just or unjust; a trial as fair or unfair; and a person as justly or unjustly convicted. These are derivative applications of the notion of justice which are explicable once the primary application of justice to matters of distribution and compensation is understood.

The general principle latent in these diverse applications of the idea of justice is that individuals are entitled in respect of each other to a certain relative position of equality or inequality. This is something to be respected in the vicissitudes of social life when burdens or benefits fall to be distributed; it is also something to be restored when it is disturbed. Hence justice is traditionally thought of as maintaining or restoring a balance or proportion, and its leading precept is often formulated as ‘Treat like cases alike’; though we need to add to the latter ‘and treat different cases differently’. So when, in the name of justice, we protest against a law forbidding coloured people the use of the public parks, the point of such criticism is that such a law is bad, because in distributing the benefits of public amenities among the population it discriminates between persons who are, in all relevant respects, alike. Conversely, if a law is praised as just because it withdraws from some special section some privilege or immunity, e.g. in taxation, the guiding thought is that there is no such relevant difference between the privileged class and the rest of the community as to entitle them to the special treatment. These simple examples are, however, enough to show that, though ‘Treat like cases alike and different cases differently’ is a central element in the idea of justice, it is by itself incomplete and, until supplemented, cannot afford any determinate guide to conduct. This is so because any set of human beings will resemble each other in some respects and differ from each other in others and, until it is established what resemblance and differences are relevant, ‘Treat like cases alike’ must remain an empty form. To fill it we must know when, for the purposes in hand, cases are to be regarded as alike and what differences are relevant. Without this further supplement we cannot proceed to criticize laws or other social arrangements as unjust. It is not unjust for the law when it forbids homicide (p. 160) to treat the red-haired murderers in the same way as others; indeed it would be as unjust if it treated them differently, as it would be if it refused to treat differently the sane and the insane.

There is therefore a certain complexity in the structure of the idea of justice. We may say that it consists of two parts: a uniform or constant feature, summarized in the precept ‘Treat like cases alike’ and a shifting or varying criterion used in determining when, for any given purpose, cases are alike or different. In this respect justice is like the notions of what is genuine, or tall, or warm, which contain an implicit reference to a standard which varies with the classification of the thing to which they are applied. A tall child may be the same height as a short man, a warm winter the same temperature as a cold summer, and a fake diamond may be a genuine antique. But justice is far more complicated than these notions because the shifting standard of relevant resemblance between different cases incorporated in it not only varies with the type of subject to which it is applied, but may often be open to challenge even in relation to a single type of subject.

In certain cases, indeed, the resemblances and differences between human beings which are relevant for the criticism of legal arrangements as just or unjust are quite obvious. This is pre-eminently the case when we are concerned not with the justice or injustice of the law but of its application in particular cases. For here the relevant resemblances and differences between individuals, to which the person who administers the law must attend, are determined by the law itself. To say that the law against murder is justly applied is to say that it is impartially applied to all those and only those who are alike in having done what the law forbids; no prejudice or interest has deflected the administrator from treating them ‘equally’. Consistently with this the procedural standards such as ‘audi alteram partem’ ‘let no one be a judge in his own cause’ are thought of as requirements of justice, and in England and America are often referred to as principles of Natural Justice. This is so because they are guarantees of impartiality or objectivity, designed to secure that the law is applied to all those and only to those who are alike in the relevant respect marked out by the law itself.

(p. 161) The connection between this aspect of justice and the very notion of proceeding by rule is obviously very close. Indeed, it might be said that to apply a law justly to different cases is simply to take seriously the assertion that what is to be applied in different cases is the same general rule, without prejudice, interest, or caprice. This close connection between justice in the administration of the law and the very notion of a rule has tempted some famous thinkers to identify justice with conformity to law. Yet plainly this is an error unless ‘law’ is given some specially wide meaning; for such an account of justice leaves unexplained the fact that criticism in the name of justice is not confined to the administration of the law in particular cases, but the laws themselves are often criticized as just or unjust. Indeed there is no absurdity in conceding that an unjust law forbidding the access of coloured persons to the parks has been justly administered, in that only persons genuinely guilty of breaking the law were punished under it and then only after a fair trial.

When we turn from the justice or injustice of the administration of the law to the criticism of the law itself in these terms, it is plain that the law itself cannot now determine what resemblances and differences among individuals the law must recognize if its rules are to treat like cases alike and so be just. Here accordingly there is much room for doubt and dispute. Fundamental differences, in general moral and political outlook, may lead to irreconcilable differences and disagreement as to what characteristics of human beings are to be taken as relevant for the criticism of law as unjust. Thus, when in the previous example we stigmatized as unjust a law forbidding coloured people access to the parks, this was on the footing that, at least in the distribution of such amenities, differences of colour are irrelevant. Certainly in the modern world, the fact that human beings, of whatever colour, are capable of thought, feeling, and self-control, would be generally though not universally accepted as constituting crucial resemblances between them to which the law should attend. Hence, in most civilized countries there is a great measure of agreement that both the criminal law (conceived not only as restricting liberty but as providing protection from various sorts of harm) and the civil law (conceived as offering (p. 162) redress for harm), would be unjust if in the distribution of these burdens and benefits they discriminated between persons, by reference to such characteristics as colour or religious belief. And if, instead of these well-known foci of human prejudice, the law discriminated by reference to such obvious irrelevancies as height, weight, or beauty it would be both unjust and ludicrous. If murderers belonging to the established church were exempt from capital punishment, if only members of the peerage could sue for libel, if assaults on coloured persons were punished less severely than those on whites, the laws would in most modern communities be condemned as unjust on the footing that prima facie human beings should be treated alike and these privileges and immunities rested on no relevant ground.

Indeed so deeply embedded in modern man is the principle that prima facie human beings are entitled to be treated alike that almost universally where the laws do discriminate by reference to such matters as colour and race, lip-service at least is still widely paid to this principle. If such discriminations are attacked they are often defended by the assertion that the class discriminated against lack, or have not yet developed, certain essential human attributes; or it may be said that, regrettable though it is, the demands of justice requiring their equal treatment must be overridden in order to preserve something held to be of greater value, which would be jeopardized if such discriminations were not made. Yet though lip-service is now general, it is certainly possible to conceive of a morality which did not resort to these often disingenuous devices to justify discrimination and inequalities, but openly rejected the principle that prima facie human beings were to be treated alike. Instead, human beings might be thought of as falling naturally and unalterably into certain classes, so that some were naturally fitted to be free and others to be their slaves or, as Aristotle expressed it, the living instruments of others. Here the sense of prima-facie equality among men would be absent. Something of this view is to be found in Aristotle and Plato, though even there, there is more than a hint that any full defence of slavery would involve showing that those enslaved lacked the capacity for independent existence or differed from the free in their capacity to realize some ideal of the good life.

(p. 163) It is therefore clear that the criteria of relevant resemblances and differences may often vary with the fundamental moral outlook of a given person or society. Where this is so, assessments of the justice or injustice of the law may be met with counter-assertions inspired by a different morality. But sometimes a consideration of the object which the law in question is admittedly designed to realize may make clear the resemblances and differences which a just law should recognize and they may then be scarcely open to dispute. If a law provides for the relief of poverty then the requirement of the principle that ‘Like cases be treated alike’ would surely involve attention to the need of different claimants for relief. A similar criterion of need is implicitly recognized when the burden of taxation is adjusted by a graded income tax to the wealth of the individuals taxed. Sometimes what is relevant are the capacities of persons for a specific function with which the exercise of the law in question may be concerned. Laws which exclude from the franchise, or withhold the power to make wills or contracts from children, or the insane, are regarded as just because such persons lack the capacity, which sane adults are presumed to have, to make a rational use of these facilities. Such discriminations are made on grounds which are obviously relevant, whereas discriminations in these matters between the sexes or between persons of different colour are not; though of course it has been argued in defence of the subjection of women, or coloured people, that women or coloured people lack the white male’s capacity for rational thought and decision. To argue thus is of course to admit that equal capacity for a particular function is the criterion of justice in the case of such law, though in the absence of any evidence that such capacity is lacking in women or coloured persons, again only lip-service is paid to this principle.

So far we have considered the justice or injustice of laws which may be viewed as distributing among individuals burdens and benefits. Some of the benefits are tangible, like poor relief, or food rations; others are intangible, like the protection from bodily harm given by the criminal law, or the facilities afforded by laws relating to testamentary or contractual capacity, or the right to vote. From distribution in this wide sense, we must distinguish compensation for injury done by one person to another. Here the connection between what is just (p. 164) and the central precept of justice ‘Treat like cases alike and different cases differently’ is certainly less direct. Yet it is not too indirect to be traced and may be seen in the following way. The laws which provide for the compensation by one person of another for torts or civil injuries might be considered unjust for two different reasons. They might, on the one hand, establish unfair privileges or immunities. This would be so if only peers could sue for libel, or if no white person were liable to a coloured person for trespass or assault. Such laws would violate, in a straightforward way, principles of fair distribution of the rights and duties of compensation. But such laws might also be unjust in a quite different way: for while making no unfair discriminations they might fail altogether to provide a remedy for certain types of injury inflicted by one person on another, even though morally compensation would be thought due. In this matter the law might be unjust while treating all alike.

The vice of such laws would then not be the maldistribution, but the refusal, to all alike, of compensation for injuries which it was morally wrong to inflict on others. The crudest case of such unjust refusal of redress would be a system in which no one could obtain damages for physical harm wantonly inflicted. It is worth observing that this injustice would still remain even if the criminal law prohibited such assaults under penalty. Few instances of anything so crude can be found, but the failure of English law to provide compensation for invasions of privacy, often found profitable by advertisers, has often been criticized in this way. Failure to provide compensation where morally it is held due is, however, also the gravamen of the charge of injustice against technicalities of the law of tort or contract which permit ‘unjust enrichment’ at the expense of another by some action considered morally wrong.

The connection between the justice and injustice of compensation for injury, and the principle ‘Treat like cases alike and different cases differently’, lies in the fact that outside the law there is a moral conviction that those with whom the law is concerned have a right to mutual forbearance from certain kinds of harmful conduct. Such a structure of reciprocal rights and obligations proscribing at least the grosser (p. 165) sorts of harm, constitutes the basis, though not the whole, of the morality of every social group. Its effect is to create among individuals a moral and, in a sense, an artificial equality to offset the inequalities of nature. For when the moral code forbids one man to rob or use violence on another even when superior strength or cunning would enable him to do so with impunity, the strong and cunning are put on a level with the weak and simple. Their cases are made morally alike. Hence the strong man who disregards morality and takes advantage of his strength to injure another is conceived as upsetting this equilibrium, or order of equality, established by morals; justice then requires that this moral status quo should as far as possible be restored by the wrongdoer. In simple cases of theft this would simply involve giving back the thing taken; and compensation for other injuries is an extension of this primitive notion. One who has physically injured another either intentionally or through negligence is thought of as having taken something from his victim; and though he has not literally done this, the figure is not too farfetched: for he has profited at his victim’s expense, even if it is only by indulging his wish to injure him or not sacrificing his ease to the duty of taking adequate precautions. Thus when laws provide compensation where justice demands it, they recognize indirectly the principle ‘Treat like cases alike’ by providing for the restoration, after disturbance, of the moral status quo in which victim and wrongdoer are on a footing of equality and so alike. Again, it is conceivable that there might be a moral outlook which did not put individuals on a footing of reciprocal equality in these matters. The moral code might forbid Barbarians to assault Greeks but allow Greeks to assault Barbarians. In such cases a Barbarian may be thought morally bound to compensate a Greek for injuries done though entitled to no such compensation himself. The moral order here would be one of inequality in which victim and wrongdoer were treated differently. For such an outlook, repellent though it may be to us, the law would be just only if it reflected this difference and treated different cases differently.

In this brief outline of justice we have considered only some of its simpler applications in order to show the specific form of excellence attributed to laws which are appraised as just. (p. 166) Not only is this distinct from other values which laws may have or lack, but sometimes the demands of justice may conflict with other values. This may occur, when a court, in sentencing a particular offender for a crime which has become prevalent, passes a severer sentence than that passed in other similar cases, and avowedly does this ‘as a warning’. There is here a sacrifice of the principle ‘Treat like cases alike’ to the general security or welfare of society. In civil cases, a similar conflict between justice and the general good is resolved in favour of the latter, when the law provides no remedy for some moral wrong because to enforce compensation in such cases might involve great difficulties of proof, or overburden the courts, or unduly hamper enterprise. There is a limit to the amount of law enforcement which any society can afford, even when moral wrong has been done. Conversely the law, in the name of the general welfare of society, may enforce compensation from one who has injured another, even where morally, as a matter of justice, it might not be thought due. This is often said to be the case when liability in tort is strict, i.e. independent of the intention to injure or failure to take care. This form of liability is sometimes defended on the ground that it is in the interest of ‘society’ that those accidentally injured should be compensated; and it is claimed that the easiest way of doing this is to place the burden on those whose activities, however carefully controlled, result in such accidents. They commonly have deep pockets and opportunities to insure. When this defence is made, there is in it an implicit appeal to the general welfare of society which, though it may be morally acceptable and sometimes even called ‘social justice’, differs from the primary forms of justice which are concerned simply to redress, as far as possible, the status quo as between two individuals.

An important juncture point between ideas of justice and social good or welfare should be noticed. Very few social changes or laws are agreeable to or advance the welfare of all individuals alike. Only laws which provide for the most elementary needs, such as police protection or roads, come near to this. In most cases the law provides benefits for one class of the population only at the cost of depriving others of what they prefer. Provision for the poor can be made only out (p. 167) of the goods of others; compulsory school education for all may mean not only loss of liberty for those who wish to educate their children privately, but may be financed only at the cost of reducing or sacrificing capital investment in industry or old-age pensions or free medical services. When a choice has been made between such competing alternatives it may be defended as proper on the ground that it was for the ‘public good’ or the ‘common good’. It is not clear what these phrases mean, since there seems to be no scale by which contributions of the various alternatives to the common good can be measured and the greater identified. It is, however, clear that a choice, made without prior consideration of the interests of all sections of the community would be open to criticism as merely partisan and unjust. It would, however, be rescued from this imputation if the claims of all had been impartially considered before legislation, even though in the result the claims of one section were subordinated to those of others.

Some might indeed argue that all that in fact could be meant by the claim that a choice between the competing claims of different classes or interests was made ‘for the common good’, was that the claims of all had been thus impartially surveyed before decision. Whether this is true or not, it seems clear that justice in this sense is at least a necessary condition to be satisfied by any legislative choice which purports to be for the common good. We have here a further aspect of distributive justice, differing from those simple forms which we have discussed. For here what is justly ‘distributed’ is not some specific benefit among a class of claimants to it, but impartial attention to and consideration of competing claims to different benefits.

2. MORAL AND LEGAL OBLIGATION

Justice constitutes one segment of morality primarily concerned not with individual conduct but with the ways in which classes of individuals are treated. It is this which gives justice its special relevance in the criticism of law and of other public or social institutions. It is the most public and the most legal of the virtues. But principles of justice do not exhaust the idea of morality; and not all criticism of law made on moral (p. 168) grounds is made in the name of justice. Laws may be condemned as morally bad simply because they require men to do particular actions which morality forbids individuals to do, or because they require men to abstain from doing those which are morally obligatory.

It is therefore necessary to characterize, in general terms, those principles, rules, and standards relating to the conduct of individuals which belong to morality and make conduct morally obligatory. Two related difficulties confront us here. The first is that the word ‘morality’ and all other associated or nearly synonymous terms like ‘ethics’, have their own considerable area of vagueness or ‘open texture’. There are certain forms of principle or rule which some would rank as moral and which others would not. Secondly, even where there is agreement on this point and certain rules or principles are accepted as indisputably belonging to morality, there may still be great philosophical disagreement as to their status or relation to the rest of human knowledge and experience. Are they immutable principles which constitute part of the fabric of the Universe, not made by man, but awaiting discovery by the human intellect? Or are they expressions of changing human attitudes, choices, demands, or feelings? These are crude formulations of two extremes in moral philosophy. Between them lie many complicated and subtle variants, which philosophers have developed in the effort to elucidate the nature of morality.

In what follows we shall seek to evade these philosophical difficulties. We shall later² identify under the heads of ‘Importance’, ‘Immunity from deliberate change’, ‘Voluntary character of moral offences’, and ‘The form of moral pressure’ four cardinal features which are constantly found together in those principles, rules, and standards of conduct which are most commonly accounted ‘moral’. These four features reflect different aspects of a characteristic and important function which such standards perform in social life or in the life of individuals. This alone would justify us in marking off whatever has these four features for separate consideration, and above all, for contrast and comparison with law. (p. 169) Moreover, the claim that morality has these four features is neutral between rival philosophical theories as to its status or ‘fundamental’ character. Certainly most, if not all, philosophers would agree that these four features were necessary in any moral rule or principle, though they would offer very different interpretations or explanations of the fact that morality possesses them. It may indeed be objected that these features though necessary are only necessary and not sufficient to distinguish morality from certain rules or principles of conduct which would be excluded from morality by a more stringent test. We shall refer to the facts on which such objections are based but we shall adhere to the wider sense of ‘morality’. Our justification for this is both that this accords with much usage and that what the word in this wide sense designates, performs an important, distinguishable function in social and individual life.

We shall consider first the social phenomenon often referred to as ‘the morality’ of a given society or the ‘accepted’ or ‘conventional’ morality of an actual social group. These phrases refer to standards of conduct which are widely shared in a particular society, and are to be contrasted with the moral principles or moral ideals which may govern an individual’s life, but which he does not share with any considerable number of those with whom he lives. The basic element in the shared or accepted morality of a social group consists of rules of the kind which we have already described in Chapter V when we were concerned to elucidate the general idea of obligation, and which we there called primary rules of obligation. These rules are distinguished from others both by the serious social pressure by which they are supported, and by the considerable sacrifice of individual interest or inclination which compliance with them involves. In the same chapter we also drew a picture of a society at a stage in which such rules were the only means of social control. We noticed that at that stage there might be nothing corresponding to the clear distinction made, in more developed societies, between legal and moral rules. Possibly some embryonic form of this distinction might be present if there were some rules which were primarily maintained by threats of punishment for disobedience, and others maintained by appeals to presumed (p. 170) respect for the rules or to feelings of guilt or remorse. When this early stage is passed, and the step from the pre-legal into the legal world is taken, so that the means of social control now includes a system of rules containing rules of recognition, adjudication, and change, this contrast between legal and other rules hardens into something definite. The primary rules of obligation identified through the official system are now set apart from other rules, which continue to exist side by side with those officially recognized. In fact in our own, and indeed in all communities which reach this stage, there are many types of social rule and standard lying outside the legal system; only some of these are usually thought and spoken of as moral, though certain legal theorists have used the word ‘moral’ to designate all non-legal rules.

Such non-legal rules may be distinguished and classified in many different ways. Some are rules of very limited scope concerning only a particular sphere of conduct (e.g. dress) or activities for which there are only intermittent opportunities, deliberately created (ceremonies and games). Some rules are conceived as applying to the social group in general; others to special subgroups within it, either marked off by certain characteristics as a distinct social class, or by their own choice to meet or combine for limited purposes. Some rules are considered to be binding by virtue of agreement and may allow for voluntary withdrawal: others are thought not to have their origin in agreement or any other form of deliberate choice. Some rules when broken may meet with no more than an assertion or reminder of the ‘right’ thing to do (e.g. etiquette or rules of correct speech), others with serious blame or contempt or more or less protracted exclusion from the association concerned. Though no precise scale could be constructed, a conception of the relative importance attributed to these different types of rules is reflected both in the measure of sacrifice of private interest which they demand, and the weight of social pressure for conformity.

In all societies which have developed a legal system there are, among its non-legal rules, some to which supreme importance is attached, and which in spite of crucial differences have many similarities to its law. Very often the vocabulary of ‘rights’, ‘obligations’, and ‘duties’ used to express the (p. 171) requirements of legal rules is used with the addition of ‘moral’, to express the acts or forbearances required by these rules. In all communities there is a partial overlap in content between legal and moral obligation; though the requirements of legal rules are more specific and are hedged round with more detailed exceptions than their moral counterparts. Characteristically, moral obligation and duty, like many legal rules, concern what is to be done or not to be done in circumstances constantly recurring in the life of the group, rather than in rare or intermittent activities on deliberately selected occasions. What such rules require are either forbearances, or actions which are simple in the sense that no special skill or intellect is required for their performance. Moral obligations, like most legal obligations, are within the capacity of any normal adult. Compliance with these moral rules, as with legal rules, is taken as a matter of course, so that while breach attracts serious censure, conformity to moral obligation, again, like obedience to the law, is not a matter for praise except when marked by exceptional conscientiousness, endurance, or resistance to special temptation. Various classifications of moral obligations and duties may be made. Some belong to relatively distinct, enduring functions or roles, which not all members of society occupy. Such are the duties of a father or husband to care for his family. On the other hand, there are both general obligations which all normal adults are conceived as having throughout life (e.g. to abstain from violence) and special obligations which any such member may incur by entering into special relations with others (e.g. obligations to keep promises or return services rendered).

The obligations and duties recognized in moral rules of this most fundamental kind may vary from society to society or within a single society at different times. Some of them may reflect quite erroneous or even superstitious beliefs as to what is required for the health or safety of the group; in one society it may be a wife’s duty to throw herself on her husband’s funeral pyre, and in another, suicide may be an offence against common morality. There is a diversity among moral codes which may spring either from the peculiar but real needs of a given society, or from superstition or ignorance. Yet the social morality of societies which have reached the stage where (p. 172) this can be distinguished from its law, always includes certain obligations and duties, requiring the sacrifice of private inclination or interest which is essential to the survival of any society, so long as men and the world in which they live retain some of their most familiar and obvious characteristics. Among such rules obviously required for social life are those forbidding, or at least restricting, the free use of violence, rules requiring certain forms of honesty and truthfulness in dealings with others, and rules forbidding the destruction of tangible things or their seizure from others. If conformity with these most elementary rules were not thought a matter of course among any group of individuals, living in close proximity to each other, we should be doubtful of the description of the group as a society, and certain that it could not endure for long.

Moral and legal rules of obligation and duty have therefore certain striking similarities enough to show that their common vocabulary is no accident. These may be summarized as follows. They are alike in that they are conceived as binding independently of the consent of the individual bound and are supported by serious social pressure for conformity; compliance with both legal and moral obligations is regarded not as a matter for praise but as a minimum contribution to social life to be taken as a matter of course. Further both law and morals include rules governing the behaviour of individuals in situations constantly recurring throughout life rather than special activities or occasions, and though both may include much that is peculiar to the real or fancied needs of a particular society, both make demands which must obviously be satisfied by any group of human beings who are to succeed in living together. Hence some forms of prohibition of violence to person or property, and some requirements of honesty and truthfulness will be found in both alike. Yet, in spite of these similarities, it has seemed obvious to many that there are certain characteristics which law and morals cannot share, though in the history of jurisprudence these have proved most difficult to formulate.

The most famous attempt to convey in summary fashion their essential difference is the theory which asserts that, while legal rules only require ‘external’ behaviour and are indifferent (p. 173) to the motives, intentions, or other ‘internal’ accompaniments of conduct, morals on the other hand do not require any specific external actions but only a good will or proper intentions or motive. This really amounts to the surprising assertion that legal and moral rules properly understood could not ever have the same content; and though it does contain a hint of the truth it is, as it stands, profoundly misleading. It is in fact an inference, though a mistaken one, from certain important characteristics of morals, and particularly from certain differences between moral blame and legal punishment. If someone does something forbidden by moral rules or fails to do what they require, the fact that he did so unintentionally and in spite of every care is an excuse from moral blame; whereas a legal system or custom may have rules of ‘strict liability’ under which those who have broken the rules unintentionally and without ‘fault’ may be liable to punishment. So it is indeed true that while the notion of ‘strict liability’ in morals comes as near to being a contradiction in terms as anything in this sphere, it is something which may be merely open to criticism when found in a legal system. But this does not mean that morals require only good intention, will, or motives. Indeed to argue thus is, as we show later, to confuse the idea of an excuse with that of a justification for conduct.

None the less there is something of importance caricatured in this confused argument; the vague sense that the difference between law and morals is connected with a contrast between the ‘internality’ of the one and the ‘externality’ of the other is too recurrent a theme in speculation about law and morals to be altogether baseless. Rather than dismiss it, we shall treat it as a compendious statement of four cardinal related features which collectively serve to distinguish morality not only from legal rules but from other forms of social rule.

(i) Importance. To say that an essential feature of any moral rule or standard is that it is regarded as something of great importance to maintain may appear both truistic and vague. Yet this feature cannot be omitted in any faithful account of the morality of any social group or individual, nor can it be made more precise. It is manifested in many ways: first, in the simple fact that moral standards are maintained against (p. 174) the drive of strong passions which they restrict, and at the cost of sacrificing considerable personal interest; secondly, in the serious forms of social pressure exerted not only to obtain conformity in individual cases, but to secure that moral standards are taught or communicated as a matter of course to all in society; thirdly, in the general recognition that, if moral standards were not generally accepted, far-reaching and distasteful changes in the life of individuals would occur. In contrast with morals, the rules of deportment, manners, dress, and some, though not all, rules of law, occupy a relatively low place in the scale of serious importance. They may be tiresome to follow, but they do not demand great sacrifice: no great pressure is exerted to obtain conformity and no great alterations in other areas of social life would follow if they were not observed or changed. Much of the importance thus ascribed to the maintenance of moral rules may be very simply explained on agreeably rationalistic lines; for even though they demand sacrifice of private interests on the part of the person bound, compliance with them secures vital interests which all share alike. It does so either by directly protecting persons from obvious harm or by maintaining the fabric of a tolerable, orderly society. But though the rationality of much social morality, as a protection from obvious harms, may be defended in this way, this simple utilitarian approach is not always possible; nor, where it is, should it be taken to represent the point of view of those who live by a morality. After all, a most prominent part of the morality of any society consists of rules concerning sexual behaviour, and it is far from clear that the importance attached to them is connected with the belief that the conduct they forbid is harmful to others; nor could such rules always be shown in fact to have this justification. Even in a modern society which has ceased to look on its morality as divinely ordained, calculations of harmfulness to others do not account for the importance attached to moral regulation of sexual behaviour such as the common veto on homosexuality. Sexual functions and feelings are matter of such moment and emotional concern to all, that deviations from the accepted or normal forms of their expression easily become invested with an intrinsic ‘pudor’ or importance. They are abhorred, not out of conviction of their (p. 175) social harmfulness but simply as ‘unnatural’ or in themselves repugnant. Yet it would be absurd to deny the title of morality to emphatic social vetoes of this sort; indeed, sexual morality is perhaps the most prominent aspect of what plain men think morality to be. Of course the fact that society may view its own morality in this ‘non-utilitarian’ way does not mean that its rules are immune from criticism or condemnation, where their maintenance is judged useless or purchased at the cost of great suffering.

Legal rules, as we have seen, may correspond with moral rules in the sense of requiring or forbidding the same behaviour. Those that do so are no doubt felt to be as important as their moral counterparts. Yet importance is not essential to the status of all legal rules as it is to that of morals. A legal rule may be generally thought quite unimportant to maintain; indeed it may generally be agreed that it should be repealed: yet it remains a legal rule until it is repealed. It would, on the other hand, be absurd to think of a rule as part of the morality of a society even though no one thought it any longer important or worth maintaining. Old customs and traditions now maintained merely for old time’s sake may, indeed, once have had the status of moral rules, but their status as part of morality has evaporated together with the importance attached to their observance and breach.

(ii) Immunity from deliberate change. It is characteristic of a legal system that new legal rules can be introduced and old ones changed or repealed by deliberate enactment, even though some laws may be protected from change by a written constitution limiting the competence of the supreme legislature. By contrast moral rules or principles cannot be brought into being or changed or eliminated in this way. To assert that this ‘cannot’ be is not, however, to deny that some conceivable state of affairs is actually the case, as the assertion that human beings ‘cannot’ alter the climate would be. Instead this assertion points to the following facts. It is perfectly good sense to say such things as ‘As from 1 January 1960 it will be a criminal offence to do so-and-so’ or ‘As from 1 January 1960 it will be no longer illegal to do so-and-so’ and to support such statements by reference to laws which have been enacted or repealed. By contrast such statements as ‘As from (p. 176) tomorrow it will no longer be immoral to do so-and-so’ or ‘On 1 January last it became immoral to do so-and-so’ and attempts to support these by reference to deliberate enactment would be astonishing paradoxes, if not senseless. For it is inconsistent with the part played by morality in the lives of individuals that moral rules, principles, or standards should be regarded, as laws are, as things capable of creation or change by deliberate act. Standards of conduct cannot be endowed with, or deprived of, moral status by human fiat, though the daily use of such concepts as enactment and repeal shows that the same is not true of law.

Much moral philosophy is devoted to the explanation of this feature of morality, and to the elucidation of the sense that morality is something ‘there’ to be recognized, not made by deliberate human choice. But the fact itself as distinct from its explanation is not a peculiarity of moral rules. This is why this feature of morality, though exceedingly important, cannot serve by itself to distinguish morality from all other forms of social norms. For in this respect, though not in others, any social tradition is like morals: tradition too is incapable of enactment or repeal by human fiat. The story, perhaps apocryphal, that the headmaster of a new English public school announced that, as from the beginning of the next term, it would be a tradition of the school that senior boys should wear a certain dress, depends for its comic effect wholly on the logical incompatibility of the notion of a tradition with that of deliberate enactment and choice. Rules acquire and lose the status of traditions by growing, being practised, ceasing to be practised, and decaying; and rules brought into being or eliminated otherwise than by these slow, involuntary processes could not thereby acquire or lose the status of tradition.

The fact that morals and traditions cannot be directly changed, as laws may be, by legislative enactment must not be mistaken for immunity from other forms of change. Indeed though a moral rule or tradition cannot be repealed or changed by deliberate choice or enactment, the enactment or repeal of laws may well be among the causes of a change or decay of some moral standard or some tradition. If a traditional practice such as the celebrations on Guy Fawkes night is forbidden by (p. 177) law and punished, the practice may cease and the tradition may disappear. Conversely, if the laws require military service from certain classes, this may ultimately develop a tradition among them which may well outlive the law. So too legal enactments may set standards of honesty and humanity, which ultimately alter and raise the current morality; conversely, legal repression of practices thought morally obligatory may, in the end, cause the sense of their importance and so their status as morality to be lost; yet, very often, the law loses such battles with ingrained morality, and the moral rule continues in full vigour side by side with laws which forbid what it enjoins.

These modes of change of tradition and morality in which the law may be a causal factor must be distinguished from legislative change or repeal. For though the acquisition or loss of legal status due to enactment may indeed be spoken of as the enacted statute’s ‘legal effect’ this is not a contingent causal change, as the statute’s eventual effect on morals and tradition is. This difference may be simply seen in the fact that while it is always possible to doubt whether a clear, valid, legal enactment will lead to a change in morals, no similar doubts could be entertained as to whether a clear, valid, legal enactment has changed the law.

The incompatibility of the idea of morality or tradition with that of change by deliberate enactment, must also be distinguished from the immunity conferred on certain laws in some systems by the restrictive clauses of a constitution. Such immunity is not a necessary element in the status of a law as a law, for this immunity may be removed by constitutional amendment. Unlike such legal immunity from legislative change, the incapacity of morals or tradition for similar modes of change is not something which varies from community to community or from time to time. It is incorporated in the meaning of these terms; the idea of a moral legislature with competence to make and change morals, as legal enactments make and change law, is repugnant to the whole notion of morality. When we come to consider international law we shall find it important to distinguish the mere de facto absence of a legislature, which may be regarded as a defect of the system, from the fundamental inconsistency which, as we have (p. 178) stressed here, is latent in the idea that moral rules or standards could be made or repealed by legislation.

(iii) Voluntary character of moral offences. The old conception that morals are exclusively concerned with what is ‘internal’ while law is concerned only with ‘external’ behaviour is in part a misstatement of the two features already discussed. But it is most often treated as a reference to certain prominent characteristics of moral responsibility and moral blame. If a person whose action, judged ab extra, has offended against moral rules or principles, succeeds in establishing that he did this unintentionally and in spite of every precaution that it was possible for him to take, he is excused from moral responsibility, and to blame him in these circumstances would itself be considered morally objectionable. Moral blame is excluded because he has done all that he could do. In any developed legal system the same is true up to a point; for the general requirement of mens rea is an element in criminal responsibility designed to secure that those who offend without carelessness, unwittingly, or in conditions in which they lacked the bodily or mental capacity to conform to the law, should be excused. A legal system would be open to serious moral condemnation if this were not so, at any rate in cases of serious crimes carrying severe punishments.

None the less admission of such excuses in all legal systems is qualified in many different ways. The real or alleged difficulties of proof of psychological facts may lead a legal system to refuse to investigate the actual mental states or capacities of particular individuals, and, instead, to use ‘objective tests’, whereby the individual charged with an offence is taken to have the capacities for control or ability to take precautions that a normal or ‘reasonable’ man would have. Some systems may refuse to consider ‘volitional’ as distinct from ‘cognitive’ disabilities; if so they confine the range of excuses to lack of intention or defects of knowledge. Again, the legal system may, for certain types of offence, impose ‘strict liability’ and make responsibility independent of mens rea altogether, except perhaps for the minimum requirement that the accused must possess normal muscular control.

It is therefore clear that legal responsibility is not necessarily excluded by the demonstration that an accused person (p. 179) could not have kept the law which he has broken; by contrast, in morals ‘I could not help it’ is always an excuse, and moral obligation would be altogether different from what it is if the moral ‘ought’ did not in this sense imply ‘can’. Yet it is important to see that ‘I could not help it’ is only an excuse (though a good one), and to distinguish excuse from justification; for, as we have said, the claim that morals do not require external behaviour rests on a confusion of these two ideas. If good intentions were a justification for doing what moral rules forbid, there would be nothing to deplore in the action of a man who had accidentally and in spite of every care killed another. We should look upon it as we now look upon a man’s killing another, when this is required as a necessary measure of self-defence. The latter is justified because killing, in such circumstances, is a kind of conduct which the system is not concerned to prevent and may even encourage, though it is of course an exception to a general prohibition of killing. Where someone is excused because he offended unintentionally, the underlying moral conception is not that this action is of a kind which it is the policy of the law to permit or even welcome; it is that when we investigate the mental condition of the particular offender, we find that he lacked the normal capacity to conform to the law’s requirements. Hence this aspect of the ‘internality’ of morals does not mean that morals is not a form of control of outward conduct; but only that it is a necessary condition for moral responsibility that the individual must have a certain type of control over his conduct. Even in morals there is a difference between ‘He did not do the wrong thing’ and ‘He could not help doing what he did’.

(iv) The form of moral pressure. A further distinguishing feature of morality is the characteristic form of moral pressure which is exerted in its support. This feature is closely related to the last and like it has powerfully contributed to the vague sense that moral is concerned with what is ‘internal’. The facts which have led to this interpretation of morality are these. If it were the case that whenever someone was about to break a rule of conduct, only threats of physical punishment or unpleasant consequences were used in argument to dissuade him, then it would be impossible to regard such a (p. 180) rule as a part of the morality of the society, though this would not be any objection to treating it as part of its law. Indeed the typical form of legal pressure may well be said to consist in such threats. With morals on the other hand the typical form of pressure consists in appeals to the respect for the rules, as things important in themselves, which is presumed to be shared by those addressed. So moral pressure is characteristically, though not exclusively, exerted not by threats or by appeals to fear or interest, but by reminders of the moral character of the action contemplated and of the demands of morality. ‘That would be a lie’, ‘That would be to break your promise’. In the background there are indeed the ‘internal’ moral analogues of fear of punishment; for it is assumed that protests will awaken in those addressed a sense of shame or guilt: they may be ‘punished’ by their own conscience. Of course sometimes such distinctively moral appeals are accompanied by threats of physical punishment, or by appeals to ordinary personal interest; deviations from the moral code meet with many different forms of hostile social reaction, ranging from relatively informal expressions of contempt to severance of social relations or ostracism. But emphatic reminders of what the rules demand, appeals to conscience, and reliance on the operation of guilt and remorse, are the characteristic and most prominent forms of pressure used for the support of social morality. That it should be supported in just these ways is a simple consequence of the acceptance of moral rules and standards, as things which it is supremely and obviously important to maintain. Standards not supported in these ways could not have the place in social and personal life distinctive of moral obligation.

3. MORAL IDEALS AND SOCIAL CRITICISM

Moral obligation and duty are the bedrock of social morality but they are not the whole. Before we examine other forms we shall, however, consider an objection to the way in which we have characterized moral obligation. The fourfold criteria which in the last section we used to distinguish it from other forms of social standard or rule (importance, immunity from deliberate change, the voluntary character of moral offences, and the special form of moral pressure) are in a sense formal (p. 181) criteria. They make no direct reference to any necessary content which rules or standards must have in order to be moral, nor even to any purpose which they must serve in social life. We have, indeed, insisted that in all moral codes there will be found some form of prohibition of the use of violence, to persons or things, and requirements of truthfulness, fair dealing, and respect for promises. These things, granted only certain very obvious truisms about human nature and the character of the physical world, can be seen in fact to be essential if human beings are to live continuously together in close proximity; and it therefore would be extraordinary if rules providing for them were not everywhere endowed with the moral importance and status which we have described. It seems clear that the sacrifice of personal interest which such rules demand is the price which must be paid in a world such as ours for living with others, and the protection they afford is the minimum which, for beings such as ourselves, makes living with others worth while. These simple facts constitute, as we argue in the next chapter, a core of indisputable truth in the doctrines of Natural Law.

Many moralists would wish to bring into the definition of morality as a further criterion beyond the four which we have offered, this connection, which seems so clear, between morality and human needs and interests. They would stipulate that nothing is to be recognized as part of morality unless it could survive rational criticism in terms of human interests, and so be shown to advance them (perhaps even in some fair or equal way), in the society whose rules they are. Some might even go further, and refuse to recognize as moral any principle or rule of conduct, unless the benefits of the forbearances and actions it required were extended, beyond the boundaries of a particular society, to all who were themselves willing and able to respect such rules. We have, however, intentionally taken a broader view of morality, so as to include in it all social rules and standards which, in the actual practice of a society, exhibit the four features we have mentioned. Some of these would survive criticism in the light of these further suggested tests; others would not but might be condemned as irrational or unenlightened or even barbarous. We have done this not merely because the weight of usage of (p. 182) the word ‘moral’ favours this broader meaning, but because to take the narrower restricted view, which would exclude these, would force us to divide in a very unrealistic manner elements in a social structure which function in an identical manner, in the lives of those who live by it. Moral prohibitions of conduct, which may not in fact harm others, are not only regarded with precisely the same instinctive respect as those that do; they enter together with the requirements of more rationally defensible rules into social estimates of character; and, with them, form part of the generally accepted picture of the life which individuals are expected and indeed are assumed to live.

It is, however, both true and important that morality includes much more than the obligations and duties which are recognized in the actual practice of social groups. Obligation and duty are only the bedrock of morality, even of social morality, and there are forms of morality which extend beyond the accepted shared morality of particular societies. Two further aspects of morality require attention here. First, even within the morality of a particular society, there exist side by side with the structure of mandatory moral obligations and duties and the relatively clear rules that define them, certain moral ideals. The realization of these is not taken, as duty is, as a matter of course, but as an achievement deserving praise. The hero and the saint are extreme types of those who do more than their duty. What they do is not like obligation or duty, something which can be demanded of them, and failure to do it is not regarded as wrong or a matter for censure. On a humbler scale than the saint or hero, are those who are recognized in a society as deserving praise for the moral virtues which they manifest in daily life such as bravery, charity, benevolence, patience, or chastity. The connection between such socially recognized ideals and virtues and the primary mandatory forms of social obligation and duty is fairly clear. Many moral virtues are qualities consisting in the ability and disposition to carry forward beyond the limited extent which duty demands, the kind of concern for others’ interests or sacrifice of personal interest which it does demand. Benevolence and charity are examples of this. Other moral virtues like temperance, patience, bravery, or conscientiousness are (p. 183) in a sense ancillary: they are qualities of character shown in exceptional devotion to duty or in the pursuit of substantive moral ideals in the face of special temptation or danger.

The further reaches of morality take us in different ways beyond the confines of the obligations and ideals recognized in particular social groups to the principles and ideals used in the moral criticism of society itself; yet even here important connections remain with the primordial social form of morality. It is always possible, when we come to examine the accepted morality either of our own or some other society, that we shall find much to criticize; it may, in the light of currently available knowledge, appear unnecessarily repressive, cruel, superstitious, or unenlightened. It may cramp human liberty, especially in the discussion and practice of religion or in experimentation with different forms of human life, even when only negligible benefits are thereby secured for others. Above all, a given society’s morality may extend its protections from harm to its own members only, or even only to certain classes, leaving a slave or helot class at the mercy of their masters’ whims. Implicit in this type of criticism which (even though it might be rejected) would certainly be accorded recognition as ‘moral’ criticism, is the assumption that the arrangements of society, including its accepted morality, must satisfy two formal conditions, one of rationality and the other of generality. Thus it is implied in such criticism first that social arrangements should not rest on beliefs which can be shown to be mistaken, and secondly that the protections from harm, which morality characteristically affords through the actions and forbearances it demands, should be extended at least to all men who are able and willing themselves to observe such restrictions. Thus such moral criticism of society as that enshrined in watchwords like liberty, fraternity, equality, and the pursuit of happiness draws its moral character from the fact that it invites reform, either in the name of some value or combination of values already recognized (though perhaps to an inadequate extent) in all actual social moralities or in the name of a version of these, refined and extended so as to meet the two demands of rationality and generality.

Of course it does not follow from the fact that criticism of (p. 184) the accepted morality or other social arrangements in the name of liberty or equality is itself recognized as moral criticism that the rejection of it in the names of other values may not also be moral. The denunciation of restriction on liberty might be met by the claim that the sacrifice of liberty to social or economic equality or security was itself justified. Such differences of weight or emphasis placed on different moral values may prove irreconcilable. They may amount to radically different ideal conceptions of society and form the moral basis of opposed political parties. One of the great justifications of democracy is that it permits experimentation and a revisable choice between such alternatives.

Finally, not all extensions of morality beyond the obligations and ideals generally recognized in a given society need take the form of social criticism. It is important to remember that morality has its private aspect, shown in the individual’s recognition of ideals which he need not either share with others or regard as a source of criticism of others, still less of society as a whole. Lives may be ruled by dedication to the pursuit of heroic, romantic, aesthetic or scholarly ideals or, less agreeably, to mortification of the flesh. Here too, it could be argued that if we speak of morality, we do so because the values thus pursued by individuals are at least analogous to some of those recognized in the morality of their own society. But the analogy is surely not one of content, but one of form and function. For such ideals play, in the life of individuals, the same part as morality does in a society. They are ranked as supremely important, so that their pursuit is felt as duty to which other interests or desires are to be sacrificed; though conversions are possible the notion that such ideals could be adopted, changed, or eliminated by a deliberate choice is chimerical; and, finally, deviations from such ideals are ‘punished’ by the same conscience, guilt, and remorse as that to which social morality makes its primary appeal.

CHAPTER VIII NOTES

Page 157. Justice as a distinct segment of morality. Aristotle in Nicomachean Ethics, Book 5, chaps, 1–3, exhibits justice as specifically concerned with the maintenance or restoration of a balance or proportion between persons. The best modern elucidations of the idea of justice are Sidgwick, The Method of Ethics, chap. 6, and Perelman, De la Justice (1945), followed in Ross, On Law and Justice, chap. 12. There is historical matter of great interest in Del Vecchio’s Justice, reviewed by Hart in 28 Philosophy (1953).

Page 161. Justice in the application of the law. The temptation to treat this aspect of justice as exhaustive of the idea of justice perhaps accounts for Hobbes’s statement that ‘no law can be unjust’ (Leviathan, chap. 30). Austin in The Province, Lecture VI, p. 260 n., expresses the view that ‘just is a term of relative import’ and ‘is uttered with relation to a determinate law which a speaker assumes as a standard of comparison’. Thus for him a law may be morally unjust if ‘tried by’ positive morality or the law of God. Austin thought that Hobbes merely meant that a law cannot be legally unjust.

Page 162. Justice and equality. For instructive discussions of the status of the principle that prima facie human beings should be treated alike, and its connections with the idea of justice, see Benn and Peters, Social Principles and the Democratic State, chap. 5, ‘Justice and Equality’; J. Rawls, ‘Justice as Fairness’, Philosophical Review (1958); Raphael, ‘Equality and Equity’, 21 Philosophy (1946), and ‘Justice and Liberty’, 51 PAS (1951–2).

Page 162. Aristotle on slavery. See Politics, i, chap. ii, 3–22. He held that some who were slaves were not so ‘by nature’ and for them slavery was not just or expedient.

Page 163. Justice and compensation. This is clearly distinguished by Aristotle from justice in distribution, op. cit., Book V, chap. 4, though the unifying principle that there is, in all applications of the idea of justice, a ‘just’ or proper proportion to be maintained or restored is stressed. See H. Jackson, Book 5 of the Nicomachean Ethics (Commentary: 1879).

Page 164. Legal compensation for invasions of privacy. For the argument that the law should recognize the right to privacy and that the principles of the common law require its recognition, see Warren and Brandeis, ‘The Right to Privacy’, 4 HLR (1890) and the dissenting judgment of Gray J., in Roberson v. Rochester Folding Box Co. (1902), 171 NY 538. The English law of torts does not protect privacy as such, though it is now extensively protected in the United States. See for English law Tolley v. J. S. Fry and Sons Ltd. (1931), AC 333.

Page 166. Conflict of justice between individuals and wider social interests. See the discussion of strict liability and of vicarious liability in tort, in Prosser on Torts, chaps. 10 and 11, and Friedmann, Law in a Changing Society, chap. 5. On the justification of strict liability in crime see Glanville Williams, The Criminal Law, chap. 7; Friedmann, op. cit., chap. 6.

Page 166. Justice and the ‘common good’. See Benn and Peters, Social Principles and the Democratic State, chap. 13, where seeking the common good is identified with acting justly or attending to the interests of all members of a society in a spirit of impartiality. This identification of the ‘common good’ with justice is not universally accepted. See Sidgwick, The Method of Ethics, chap. 3.

Page 167. Moral obligation. For the need to distinguish the obligation and duties of social morality both from moral ideals and personal morality, see Urmson, ‘Saints and Heroes’ in Essays on Moral Philosophy (Melden ed.); Whiteley, ‘On Defining “Morality” ‘, in 20 Analysis (1960); Strawson, ‘Social Morality and Individual Ideal’ in Philosophy (1961); Bradley, Ethical Studies, chaps. 5 and 6.

Page 169. The morality of a social group. Austin in The Province uses the expression ‘positive morality’ to distinguish the actual morality observed within a society from the ‘law of God’, which constitutes for him the ultimate standards by which both positive morality and positive law are to be tested. This marks the very important distinction between a social morality and those moral principles which transcend it and are used in criticism of it. Austin’s ‘positive morality’, however, includes all social rules other than positive law; it embraces rules of etiquette, games, clubs, and international law, as well as what is ordinarily thought and spoken of as morality. This wide use of the term morality obscures too many important distinctions of form and social function. See Chapter X, s. 4.

Page 172. Essential rules. See Chapter IX, s. 2, for the development of the idea that rules restricting the use of violence and requiring respect for property and promises constitute a ‘minimum content’ of Natural Law underlying both positive law and social morality.

Pages 172–3. Law and external behaviour. The view criticized in the text that whereas the law requires external behaviour, morality does not, has been inherited by jurists from Kant’s distinction between juridical and ethical laws. See the General Introduction to the Metaphysic of Morals in Hastie, Kant’s Philosophy of Law (1887), pp. 14 and 20–4. A modern restatement of this doctrine is in Kantorowicz, The Definition of Law, pp. 43–51, criticized by Hughes in ‘The Existence of a Legal System’, 35 New York University LR (1960).

Page 178. Mens rea and objective standards. See Holmes, The Common Law, Lecture 11; Hall, Principles of Criminal Law, chaps. 5 and 6; Hart, ‘Legal Responsibility and Excuses’, in Determinism and Freedom (ed. Hook).

Page 179. Justification and excuse. On this distinction in the law of homicide see Kenny, Outlines of Criminal Law (24th edn.), pp. 109–16. For its general moral importance see Austin, ‘A Plea for Excuses’, 57 PAS (1956–7); Hart, ‘Prolegomenon to the Principles of Punishment’, 60 PAS (1959–60), p. 12. For a similar distinction see Bentham, Of Laws in General, pp. 121–2 on ‘exemption’ and ‘exculpation’.

Page 181. Morality, human needs, and interests. For the view that the criterion for calling a rule a moral rule is that it is the product of reasoned and impartial consideration of the interests of those affected, see Benn and Peters, Social Principles of the Democratic State, chap. 2. Contrast Devlin, The Enforcement of Morals (1959).

CHAPTER VIII 3rd ed. NOTES

Pages 157–60. Principles of Justice. John Rawls, who was importantly influenced by Hart, treats the subject matter of justice in John Rawls, A Theory of Justice rev. edn. (Harvard University Press, 1999) chap. 1, esp. 6–10. For a useful review emphasizing the distributive character of principles of justice see David Miller, Social Justice (Oxford University Press, 1976) chap. 1.

Pages 159–60. ‘Treat like cases alike’. Hart’s suggestion that this is a kind of justice has been debated: David Lyons, ‘On Formal Justice’ (1972) 58 Cornell Law Review 833; Matthew Kramer, ‘Justice as Constancy’ (1997) 16 Law and Philosophy 561; John Gardner, ‘The Virtue of Justice and the Character of Law’, chap. 10 of his Law as a Leap of Faith. Dworkin associates treating like cases alike not with bare consistency, but with his ideal of ‘integrity’: ‘Integrity demands that the public standards of the community be both made and seen, so far as this is possible, to express a single, coherent scheme of justice and fairness in the right relation’ (Law’s Empire 219). For doubts see Denise Réaume, ‘Is Integrity a Virtue? Dworkin’s Theory of Legal Obligation’ (1989) 39 University of Toronto Law Journal 380; and Joseph Raz, Ethics in the Public Domain 319–25.

Pages 161–4. Distributive and compensatory justice. The traditional classification of ‘forms’ of justice and the relations between them is unclear. On distributive and corrective justice in particular see Jules Coleman, Risks and Wrongs (rev. edn., Oxford University Press, 1992); Stephen Perry, ‘On the Relationship between Corrective and Distributive Justice’ in Jeremy Horder ed., Oxford Essays in Jurisprudence, 4th series (Oxford University Press, 2000); John Finnis, Natural Law and Natural Rights 173–84; and John Gardner, ‘What is Tort Law For? Part 1: The Place of Corrective Justice’ (2011) 30 Law and Philosophy 1.

Pages 166–7. Justice and other values. John Rawls claims that justice is the first virtue of social institutions in A Theory of Justice, rev. edn. 3–4. The view is considered in John Gardner, ‘The Virtue of Justice and the Character of Law’, chap. 10 of his Law as a Leap of Faith; and in Jeremy Waldron, ‘The Primacy of Justice’ (2003) 9 Legal Theory 269.

Pages 169–70. Conventional morality. Hart distinguishes ‘positive’ and ‘critical’ morality. Positive, or customary, or conventional morality is the morality actually accepted by a given social group; critical morality is sound, or correct morality, the morality the group ought to accept: H. L. A. Hart, Law, Liberty, and Morality (Stanford University Press, 1963) 17–24. Dworkin argues that not every set of socially accepted attitudes towards conduct can count as a morality: some are merely hatreds, phobias, etc. Taking Rights Seriously 248–55. W. J. Waluchow argues that there is a positive ‘community constitutional morality’ that is not simply a matter of convention but presupposed by a community’s institutions: A Common Law Theory of Judicial Review: The Living Tree (Cambridge University Press, 2007).

Pages 183–4. Moral criticism of society. See Patrick Devlin, The Enforcement of Morals (Oxford University Press, 1965); H. L. A. Hart, Law, Liberty and Morality; Ronald Dworkin, Taking Rights Seriously, chap. 10; and Robert P. George, Making Men Moral: Civil Liberties and Public Morality (Oxford University Press, 1993); chap. 2.

FOOTNOTES CHAPTER VIII

1. De Civitate Dei, IV, 4. ↩

2. Below, p. 173 ff. ↩