• Michael Elliot

Should Morality Influence Justice?

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Our notions of justice are shaped, directly or indirectly, by moral convictions which inevitably form our laws and what we perceive as just. While this may seem acceptable, it raises a question about the role of morality in justice should we embrace a reality where moral conviction shapes justice, or should societies strive to squeeze the fluid intangibility of morality out of justice entirely? This article will briefly discuss the landmark British case R v Brown and view it through the philosophical lens of Aristotle, Kant, and Nozick to try to answer the question of whether justice should be morally blind.

Like no other case in recent legal history, R v Brown captured the debate over judicial morality and questioned the purpose of law in society. The case dealt with the arrest, trial, and conviction of multiple men who had been partaking for numerous years in (consensual) violent, sadomasochistic sexual activity. Convicted for actual bodily harm by the United Kingdom’s highest court, they relied on the defence of consent.

Nevertheless, in a vacuum of “black letter law”, the Law Lords convicted the defendants for “acts of lewd, immoral and unnatural kind”. The judgement was, and still is, highly controversial. Many argue that the perceived morality of the judges wrongly played a role in the decision to convict men without respecting their individual autonomous rights.

Therefore, would it be preferable, or even morally desirable, to actively seek the removal of moral influence from justice? To answer this question, we can turn to various philosophical approaches to the role of law.

Some would argue for a teleological approach, insisting that justice is a tool to achieve a “good life”. Philosophers like Aristotle or Michael Sandel hold that law and justice are inescapably linked to morality. Trying to divorce the two defeats the purpose of justice as a tool to progress a moral society and instead leaves an “impoverished civil life [open to] narrow, intolerant moralisms”. A strong believer in honorific teleological justice, Aristotle believed that justice gives people what they deserve, and that this meritocratic discrimination requires moral judgements on what is good and should be honoured and what is not. Moral legislation creates a moral, civil polis and this allows us to further society.

Aristotle tells us that those who fail to further the moral education of the citizens they legislate over “miss their mark” as legislators. As such, these teleological moralists would say that any decision including R v Brown should consider the perceived morality of the acts being decided upon and pass judgement on whether these should be promoted or suppressed. After all, what is the purpose of law if not to morally shape society?

In R v Brown this reasoning is clear in the dicta of Lord Templeton ([1994] 1 A.C. 212. At paragraph [237]), which states that:

“Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.”

This raises issues, however, such as who should decide what is moral or “civilised”. For centuries ironically less so in the time of Aristotle homosexuality has been seen as morally abhorrent. The judges in R v Brown would have grown up in a UK where forced homosexual castration was a legally mandated practice. Why should these judges, or anyone else, decide what is moral and forge the law around their individual perceptions which may be radically different from the moral understandings of others? This problem, exacerbated by a common law system which relies so heavily on judicial interpretation, would make the case for a strictly neutral “black letter law”. This would mean the interpretation of the law only in so far as it is written with no room for discretion or flexibility in judgements. Each case could be decided objectively and deliver predictable results for everyone - but equal application does not always produce equal outcomes.

Yet this raises questions of the role of morality in justice. What is the point of the law if not to decide between right and wrong two concepts devoid of substance without intrinsic moral judgement? Conceptions of freedom can also shape the perceived role of justice and law, be they laissez-faire libertarian conceptions, or individualist freedom of choice within a broadly morally-guided system.

Libertarian philosophy, as approached by Robert Nozick, centres around the rights of individuals, with the essence being that the State should protect these rights and their enjoyment and do nothing more. For libertarians, law should be strictly morally neutral. What is “moral” or “amoral” is immaterial in the eyes of libertarian justice. Acts should be criminalised only if they interfere with the freedoms or rights of others. Imposing a moralistic aspect into justice is an interference and, as such, is inexcusable. Given that in R v Brown there were no victim complaints, and the acts were all consensual, libertarians would see no justification for the decision of the court. It is nothing but a wrong imposition on the agency of consenting individuals who violated no individual rights.

The argument for legal stagnation is often levelled against libertarian philosophy, being that minimal rights-based approaches would stagnate legal activism and permit scenarios where circumstantial coercion could be tolerated and even embraced. An example would be drinking water: if a state or company owns a reservoir which supplies a village, most of us would be horrified to find out they intended to start bottling it and end the supply of tap water to those who rely on it. Yet, this is well within their property rights and for a court to rule that this was morally abhorrent, and thus illegal, would be an intrusion on these rights.

In reality, a purist reduction of justice to an amoral enforcement tool appears directionless and helpless if the goals of justice and law are to better society. The law requires direction to change but the libertarian subscription to the status quo hinders change for those not currently benefiting from the system. The end of segregation in the United States or marriage equality laws both would never come about in a purely rights-based justice system. Individualist moralists would propose a different approach to allow direction and morality in justice, while trying to avoid unnecessary bias within what is called “moral”.

Immanuel Kant believes that persons, as sentient, autonomous individuals, should be the ends in themselves. Their ability to choose what is right is theirs alone, and if a State were to use justice as a tool to further a moral agenda then it abuses the person by using them as a means to this end. As a strict moralist, Kant would never argue that justice should be amoral, instead stating that a system of moral law must be comprised of laws based on moral duties alone and removed from individual preferences and bias. Only then could it respect the individual.

Kant would likely oppose the R v Brown decision by saying the judges failed to abstract their judgement from individual interests and beliefs and instead imposed personal agendas on justice without applying the true moral law. Yet, unlike for libertarians, the criminalisation of the acts seen in R v Brown would pose no problem for Kant if done so under a (moral) law which had “grounds in reason alone”. Therefore if reason accepted the moral criminalisation of homosexuality, then Kant would claim that the law was obliged to convict on the backs of this morality. A difficult solution to accept.

So, should justice be morally blind? R v Brown confronts us with a difficult dilemma: should we allow those in legislating and adjudicating roles Aristotle’s practically wise decide what is morally best for society as a whole? Or should we strike morality from law, leaving a shallow but concrete constitution of rules to enforce the rights we inherit and take for ourselves?

What R v Brown shows us is that neither of these options can be satisfactory. For many, the homosexual sadomasochistic practises were abhorrent and to see the law turn a neutrally blind eye to this seems incorrect. For others, the absence of infringed rights makes no case for judicial intervention, and in doing so the law erred into personal moral imposition. It is, however, for all but the most committed libertarians, difficult to idolise a law which does not strive to better society.

A solution may lie in Kantianism the case for the moral individualist. Instead of allowing judges, politicians, or anyone else to decide what is moral and use justice as a tool pursuant to this decision, justice could pursue some form of deeper morality a morality abstracted from individual bias, perception, or belief. This judicial morality would not be an amalgamation of personal moral conceptions, but rather a considered and near-universal baseline morality which would run through society giving direction, but upholding consistency. Formulating this would be a herculean task, and is for all intents and purposes a moralist fiction, but it serves as an idea demonstrative of the way law can enhance society without resorting to imposition of arbitrary moral judgement by those in power on those who are not.

What this would mean for Anthony Brown and his co-defendants is unknowable, however, it could point to a judicial morality less at risk of individual corruption.