The Morality And Origin Of Law: Natural Law
This essay aims to explore the involvement of morality within various legal systems throughout history in order to assess an understanding of the components of law. It explores conflicting ideas such as legal positivism and natural law; assessing how relevant morality is to the individual concept of these ideas. Moreover, it also aims to evaluate the effectiveness of moral norms by exploring the true purpose of the law. The conclusion is that morality is in correlation with the legal system it finds itself in, as these two concepts are both normative and heavily intertwined.
When assessing the effectiveness of law, morality plays a crucial part within our legal system. Even though law is essentially a set of rules and principles, created and enforced by the state whereas morals are a set of beliefs, values and principles which are enforced and created by society, the necessary link between these two concepts are that they’re heavily conventional; both being ideas that are socially constructed. Therefore, if emphasising the legal positivity of law, it is clear that the law is intrinsically imbued with moral content. Moreover, it is worth defining the concept of law. Law can be subject to different perspectives of inquiry. From a doctrinal perspective, law can be understood as a nominative basis for law-making and adjudication. From a historical perspective, law can be viewed in its time-dependent changing dimension as a part of human history in order to access values of a certain age. A. L. Kroeber states that there has not been an evolution or development of morality in the progress from savagery to civilisation; emphasising the conventionalism of morality. Therefore, it is concluded that law does not merely serve to promote order within a structure of society, but rather serves as a way of extracting history. Therefore, the jurisprudential debate about the relationship between law and morality has traditionally assumed, like Jerome E. Bickenbach argues, the normative dependence of the law. As a normative system composed of a collection of definite and identifiable practices and institutions, the law is understood as providing a complex and evolving structure for the creation, development, refinement, and application of certain norms. Natural lawyers and legal positivists disagree about the essential or inherent moral content of those norms, but both accept the view that, when the jurisprudential questions of validity, legitimacy, and authority are at issue, these norms require extra-legal evaluation. The law itself, it is assumed, lacks the normative resources to ground its own fundamental norms; which therefore, requires an element of guidance, such as a set of moral principles. Therefore, is this concept, which is so interwoven and necessary within legal systems, actually effective?
The Origins Of Law
When evaluating the effectiveness of law, one must first look at the purpose and origins of this concept. In history, the first recorded Mesopotamian written laws were those of the ‘Ur-Nammu Law Code’, linking back to 2100 BC. Included among these, were clauses such as ‘if a man commits a robbery, he will be killed’. In correlation with the ideology of natural law, which, like Jerome E. Bickenbach states, clashes with legal positivism, it is clear that the main function of law remains the same, however, at first glance the implementation of morality may seem to lack heavily in this period. Nonetheless, this is explained through the changing values of the ages, meaning, morality was a concept that was always present, it just took on a different form as morality is an ideology created and defined by the values of a certain time period. Therefore, morality is not a grounded concept but can rather be seen as constantly evolving over time. Another clause in the Ur-Nammu Law Code states that ‘if a man cuts off another man’s foot, he is to pay ten shekels’, which, in the UK legal system, falling under Section 20 of the Offences against the Person Act 1861 under Grievous Bodily Harm (GBH), would in most cases result in a maximum sentence of life imprisonment. This makes it clear that over the course of history, morals and principles seem to, not be implemented, but have changed and evolved in accordance with the changing civilisation. Nonetheless, for the oldest extant law code in history, the Ur-Nammu Law Code is remarkably advanced as it advocates the concept of monetary compensation for bodily damage as opposed to the later ‘lex talionis’ (eye for an eye) principle of Babylonian law. Therefore, this goes against the principle of natural law, as the moral values that are supposedly inherited in human nature are seen to have changed over the course of history.
This idea is further supported through the Roman capital punishment of crucifixion, which demonstrates that these moral principles which Jerome E. Bickenbach has identified as being a necessary part of law, were absent. This is further seen in the Five Punishments, a series of physical penalties carried out by the legal system of pre-modern dynastic China; included of clauses such as quartering, the removal of the male’s reproductive organs as well as the amputation of the left or right foot. Leading on from this, it is evident that there is an error in Bickenbach’s judgement, however, it still remains that the law itself lacks the normative resources to ground its own fundamental norms. Therefore, it seems that the law is relying on another resource to ground itself; as the relationship between morality and law leads into the approach to the central jurisprudential issue of the normative validity, or legitimacy of law. Therefore, if the law is believed to inhibit intrinsic moral content, then the legitimacy of this will be dependent on the degree to which moral norms are revealed in substantive law and furthered by legal practice. However, these moral norms are clearly exempt from these ancient legal systems, concluding that instead of being fixated on morality, the laws of the past seem to value the idea of order over morals. According to the mentality of the 6th century, the crime which lead to crucifixion was seen as much more immoral than the punishment. This, like Danny Priel expands upon in his article ‘The Boundaries of Law and the Purpose of Legal Philosophy’, gives answer to the question of ‘what should the law be’, in the case of normative jurisprudence, rather than the idea of ‘what is law like’, in the case of descriptive jurisprudence. It also supports the idea that, as a normative system, the law must possess an immanent authoritativeness.
Leading on from this, the degree of effectiveness must be evaluated. However, this causes rise to questions such as, how is the success of law measured? What is valued above all, morality or order? According to H.L.A. Hart, a contemporary legal positivist, the essence of legal positivism is the ‘separation thesis’, which is the belief that having a legal right to do something doesn’t entail having a moral right to do it; as well as the belief that having a legal justification to do something doesn’t entail having a moral justification. Therefore, like H.L.A Hart would argue, an individual’s moral rights are always dependent upon the legal system which they find themselves in as morality secures legal validity, the law receives its legitimacy externally, through the legitimating power inherent either in the moral content of legal norms or in the correspondence between legal processes or norm creation and application and our moral consciousness. Thus, it could be argued that morality cannot be concluded to exist as an entity separate to this legal system.
The Effectiveness Of Medieval Law
Moving further in history, it is worth exploring the English legal system during the Medieval period. The jury system, developed by Henry II in the 12th century, also introducing a ‘Grand Assize’ (known today as the ‘grand jury’), was widely used. Introduced in civil cases, it concerned itself with the possession of land as well as criminality. Under Henry’s assize, a jury of free men were charged with reporting crimes in their hundred to a ‘justice in eyre’, a judge who would move between hundreds on a circuit. A criminal who would be accused by this jury would then be given a trial by ordeal, under the King’s Court; which also included of different ordeals such as Ordeal by Fire, Water or Combat. Considering the very doubtful nature of these legal trials, effectiveness comes into question. How adequate can a process of proving the guilt or innocence of the accused be determined by essentially subjecting them to various forms of torture, such as enduring stepping on red-hot ploughshares or holding a red-hot iron? Would innocence really be able to be successfully measured by a complete lack of injury, bandaging the wound and then re-examining it three days later by a priest, who would then pronounce that God had intervened to heal it?
This could be answered by looking at economics professor Peter Leeson’s theory, which proves that certain trials such as trial by ordeal could have been effective at separating the guilty from the innocent. Assuming that the defendants would also be believers in divine intervention for the innocent, then, Leeson argues, only the truly innocent would undergo a trial; whilst guilty defendants would be more likely to confess or settle cases instead. This is evident through the legend of Emma of Normandy’s trial in the 13th century, recorded in ‘The Annals of Winchester’. Queen Emma, after being accused of unchastity with Bishop Ælfwine of Winchester, underwent the ordeal of walking over red-hot ploughshares. Her feet remained unharmed and pain remained unfelt. Holy intervention seemed to have taken place and proved Emma of Normandy innocent. However, the lack credibility of this affair must be emphasised, as a contemporaneous record for this trial is non-existent.
Nonetheless, it cannot be denied that the logistics of these methods of trial are highly lack careful thought and consideration. Therefore, it is concluded that even when moral aspects seem to lack within a legal system, it has shown it does not always prove effective.