THE RULE OF LAW AND THE CHALLENGE OF PLURALISM - 4

[Abstaract / Preamble ]    [ Conception and Legitimisation of Power ]   [ Source, Nature and Scope of Law]    [ Law and Morality ]   [ Secularism the Solution? ]   [ Option of Pluralism ]   [ Challenge of Pluralism / Conclusion ]    Law and Morality What is or ought to be the relationship between law, morality and religion? Can morality exist independent of religion? Is there a difference between crime and sin? Is there a difference between public and private morality? Can law be neutral in matters of morality? What exactly is liberty? And what are its limits? These and similar questions are very familiar and have, since the Greek periods engaged the human mind. But they appear to have acquired a momentum of their own during the renaissance and fuelled by such works as that of John Stuart Mill, they have today assumed an unprecedented magnitude in a globe that is ever shrinking and coming face to face with explosive ethical dilemmas. It is not our intention to revisit this seemingly unending debate, we only wish to under score its significance to the rule of law in an increasingly plural society. This we intend to do by referring to the now famous debate between Lord Devlin, a renown British judge and Professor Hart, a distinguished Oxford Jurist, which was provoked by the Report of the committee on Homosexual Offences and Prostitution, known as the Wolfenden Report. “The question raised by that report is this: ‘What is the connection between crime and sin and to what extent, if at all, should the criminal law of England concern itself with the enforcement of morals and punish sin, or immorality as such?” (16) In addressing this question the report position is that, “our own formulation of the function of the criminal law so far as it concerns the subject of this inquiry. In this field its function, as we see it is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable .. It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined.”(17) Lord Devlin’s response(18) was to reject the committee’s position that law has no business with private morality, for he believed, private immorality, contrary to the committee’s argument is injurious to the public. He  also took the view that “morality is based on religion, not only as a matter of history, but also a matter of logic: morals and religion are inextricably linked.” (19) He further argued that a shared morality is essential to the cohesion as well as the stability of society, hence it is the business of law to safeguard it. It is significant to note that Lord Devlin is not particular about the quality of morality, it looks like any would, so long as it would provide the cohesion and stability. “The quality of morality is irrelevant. ‘Bad societies can live on bad morals just as well as good societies on good ones.” (20)Professor Hart in his response(21) took the opposite position, essentially defending the position of the Wolfenden Report and resting his argument on Mill’s famous statement on liberty: “The only purpose for which power can rightly be exercised over any member of civilised community against his will is to prevent harm to others. His own good either physical or moral is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinion of others to do so would be wise or even right.” (22) This debate illustrates a number of points and raises numerous issues. But what interests us here is the manner in which the shifting sand-dunes of morality affect law in the modern secular state. It could be argued that a trend in favour of separating law from morality is emerging, for recently the supreme Court in the US acquitted Larry Flint, a publisher of a pornographic magazine on  similar grounds. In Islam and classical Christianity, the issue of separating morality from religion does not arise, for morality carries with it  a sense of sin and this can only emanate from a religion. This is not to suggest however that all religions share the same conception of morality.