What laws may cure
July 18, 2014Posted by on
A NEW EXAMINATION OF MORALS AND THE LAW by T. E. Utley
Of all the ills that human hearts endure,
How small that part which laws may cause or cure.
Those lines, widely and falsely attributed to Samuel Johnson and in fact written by Oliver Goldsmith, used to represent one of the most important ingredients in Tory thinking. Today, most Tories would feel inclined to qualify them. Laws may be capable of doing little good, but we have learnt that they are powerful engines of evil, of consequences which their authors never intended or foresaw but which press hardly and deeply into the lives of ordinary people.
By a curious convention of British politics, those ordinances which affect most intimately the life of the subject are least likely to have been authorised by any kind of popular mandate. We assume nowadays that politics should normally be concerned almost exclusively with the distribution of wealth. At regular intervals, we present the public with more or less clearly defined choices about how the balance of payments crisis should be tackled and about what type of taxation system we should have. On such points, the organised political parties take up their stands, publish their manifestos and offer more or less coherent alternatives to the electorate. It is between these alternatives rather than between the individual merits of candidates that electors decide when they cast their votes – and woe betide those politicians who, having got themselves to Westminster, deviate from the commitments of their party as interpreted by their party’s leaders on such matters as these. Deviations there are, but they must be authorised and enforced from above. By this means, the electorate is given some kind of intermittent control over one part of its own destinies. It may decide wrongly or it may be wantonly deceived, but it gives the imprimatur of its approval to certain broadly described policies, and it always has the chance of eventually taking revenge on any who have fraudulently secured that approval. In these spheres, there is a discernable element of popular consent.
In striking contrast to this, laws affecting the more intimate areas of life – the relations of married couples, the rights of men to make physical love to each other and the rights of unborn children – are almost wholly removed from popular control. All the political parties classify such matters as issues of conscience to which it is improper to apply the party whip. When such questions arise at Westminster, the MP suddenly becomes possessed of an unaccustomed freedom. He can speak and even vote as he likes.
It is true, of course, that he still has his constituents to contend with. They may write him rude letters and threaten to withdraw their support from him at the next election. In practice, however, the electoral fate of comparatively few MPs is decisively affected by their views on these questions of private morality and of the proper relationship between it and the law. When polling day comes, the central question, defined by the political Establishment on both sides, will dominate the scene, and the maxim that votes should be cast for parties not men will in general prevail.
As a result, vast areas of legislative activity are effectively removed from popular control. The House of Commons, acting independently of the electorate and with the now only negligible restraints imposed by the Lords, can revise the conditions of marriage, the laws affecting homosexual behaviour, the rules which determine who can and who cannot be legally given an abortion and the institution of Sunday observance.
When the history of Britain since 1964 comes to be written, it may well be judged that, during this period, the quality of English life was changed less fundamentally by the nationalisation of steel or the activities of the Prices and Incomes Board than by a number of Private Members’ Acts which have received no kind of sanction, however oblique, from the sovereign people. It is certainly true that most of this legislation would not have been possible without some measure of aid from the Government in supplying time for its discussion in Parliament and even in applying to members the moral pressure which arises from the knowledge that a Bill is unofficially approved by most members of the Administration. In matters of morals the prevailing trend of Socialist opinion has been permissive, and this has been an important factor in our affairs. Neither Government nor Opposition, however, has formally committed itself to either side in this great national controversy. Could it not be fairly argued that, for better or for worse, the English allow those of their laws which most closely affect their private behaviour to be settled by an oligarchy?
Some of the dangers of this arrangement may be inevitable. It may well be that Members of Parliament, so easily coerced over other matters, will not abandon the few remaining areas in which their consciences are respected. It may also be that our legislation about private morality is infinitely more intelligent and humane than it would be if it arose spontaneously from popular prejudice instead of embodying the views of a relatively civilised minority. Yet there are perils in the gulf which could easily arise between laws and the moral sentiments of the people who have to obey them. May there not also be practical advantages, at least to the Conservative Party, in trying to achieve, if not an enforced orthodoxy on these matters, then at least a broad consensus informed by the many relevant elements in its tradition of political thought?
THE CONSERVATIVE DILEMMA
Certainly, that task will not be easy. In these matters, as in so many other respects, the historic Conservative Party speaks with two distinct voices. The principles it proposes are complex and often apparently self-contradictory. There is, in the first place, the old voice of Tory paternalism which may be heard in the prayer-book petition that the Queen and her magistrates shall receive the divine Grace which they need in order to execute justice ‘to the punishment of wickedness and vice and the maintenance of thy true religion and virtue’. The language comes from an age in which Church and State were regarded as different aspects of the same entity, and in which the law assumed that all loyal subjects were by definition conforming members of the established Church. Yet, its echoes can still be heard in contemporary controversy. The notion that, if the function of the State is not precisely to make men good, then at least it is to establish the conditions in which they will be helped to be good and to present them constantly with a pattern of what constitutes good living, is far from wholly extinct. Today, it receives less direct and more sophisticated expression in such maxims as these: society is not just a collection of isolated atoms, but is held together by a common moral tradition which the law must express and maintain. How can the laws be obeyed if they are not loved, and how can they be loved if they flout or even fail to assert the deepest moral convictions of the people? Or, on a more practical plane, there are such complaints as these: ‘A few years ago, I could tell my son as he went away to school that homosexuality was an offence so terrible that the State sometimes punished those who committed it with life-long imprisonment. Today, I can only tell him that it is something of which old-fashioned people like myself strongly disapprove. Can anyone doubt the profound effect which this change in the law is going to have on human behaviour?’
On the other hand, there is the equally strong authentic note struck by the liberal elements in the Conservative tradition represented, for instance, by Burke’s admonition to Government that it must tolerate frailties until they have festered into crimes. How can a party which is so deeply concerned with the dangers of State interference in economic affairs look with favour on the intrusions of government into far more intimate sectors of life? If freedom in the conduct of wage negotiations is sacred, how much more sacred is freedom in the conduct of love affairs? What right have men to impose their own standards on each other? Even on the highest view of the ends of government, what scope would there be for true virtue in a society which enforced all moral obligations under pain of imprisonment or death? Have not the worst tyrannies in history, like Calvin’s Geneva, been the work of men convinced that it was their divine duty to enforce goodness and punish wickedness?
The truth is that there are very few sane and moderate men who honestly consider these things today without being painfully torn between these conflicting traditions. There are of course the professional extremists – men who think that there is a simple choice between maintaining the traditional virtues and opening the flood-gates to a moral revolution which will install sexual promiscuity, homosexuality and obscenity and blasphemy in speech and conversation, as the normal social conventions. There are also extremists who believe with equal passion in the virtues of moral innovation and who, starting from the dogma that the supreme aim of government is to preserve individual freedom, are in practice conspicuously less concerned with the freedom of those who favour traditional ways than with giving unlimited rein to moral experimenters. As a result of both these extremes, it has become fashionable to speak as though there were a clear-cut choice between favouring tradition or permissiveness, as though a man who favours legalising homosexuality between consenting adults is in logic bound also to favour abortion by consent or the free provision of contraceptives to adolescents. This dichotomy is unreal and repugnant in particular to the whole spirit of Conservative thinking. The criteria for deciding when the State should and should not interfere in private morals are of a far more subtle and complex kind.
LIBERTY AND LAW
To an extent which is not generally realised, current controversy on the whole question of the relationship between legislation and morality is still dominated by the thinking of the nineteenth century liberal intellectual, John Stuart Mill. Mill started with the simple, clear-cut proposition that human actions could be divided into two categories, self-regarding and other-regarding. In the first category came all those actions which affected only those who took them; in the second, actions which produced an effect on society. Since liberty was a good wherever possible to be preserved, it followed that self-regarding actions were wholly outside the proper sphere of the State. A man’s liberty could only reasonably be curtailed in order to protect the liberty of others. It could never be right to coerce him for his own good.
Mill spent much of his life painfully exploring and struggling with the difficulties which this beautifully simple doctrine presented as soon as he attempted to apply it to concrete cases. Could it really be assumed utterly wrong in all circumstances to restrain a man’s actions for the sake of safe-guarding his own interests? Is it proper to prevent a man from crossing a bridge which one knows would collapse if anyone stepped on it? Is the right to commit suicide a natural right?
The trouble was that liberty is not a simple concept. An individual’s acts of free will often contradict each other. The passionate desire to get drunk and equally passionate wish to avoid a hangover are often irreconcilable: which should take precedence? It is common to find individuals voluntarily limiting their own freedom, submitting to some kind of external authority which, on the whole, they believe will promote their own happiness more than it would be promoted by the instant gratification of each of their inclinations. Is the freedom of a drug addict really more curtailed by submitting him to a compulsory cure than by allowing him to become incurable?
The difficulties of drawing a line between what affects the individual and what affects society proved equally hard. It is scarcely possible to conceive of any act so private that it produces no impact on others. If the impact is sufficiently damaging, there will be a case for State intervention. Many have started with Mill’s principles and found that, without ever contradicting them, it is possible to justify vast public intrusions into private life.
Mill was inspired by the worthy idea of keeping legislation within reasonable bounds. He soon found, however, that there were large areas of life which, though they seemed quite unsuitable for legislative interference, could not tolerably be abandoned to the competition of private whims and interests. He fell back on the idea that what the State could not suitably do in such cases might be done by the pressure of public opinion. Clearly, much useful social behaviour arises neither from spontaneous devotion to society nor from fear of government, but rather from fear of social disapproval. As Mill’s critics pointed out, however, this did not really help much with the problem of liberty. The psychological pressures exerted by neighbours could be just as tyrannical and far less predictable than those exerted by Governments acting through known laws, interpreted by impartial courts.
What the majority of Mill’s critics found insupportable, however, was the suggestion that his principles could be used as a bar to the prohibition of certain kinds of gross vice, the effects of which could not possibly be confined to those who practised them but which must spread like a contagion through society. The emotions which this aspect of his thinking aroused are well illustrated in this quotation from one of the sternest and most acute of his opponents, Sir James Fitzjames Stephen, who thus parodies Mill talking to a pimp:
‘Without offence to your better judgement, dear Sir, and without presuming to set up my opinion against yours, I beg to observe that I am entitled for certain purposes to treat the question of whether your views of life are right as one which admits of two opinions. I am far from expressing absolute condemnation of an experiment in living from which I dissent (I am sure that mere dissent will not offend a person of your liberality of sentiment), but still I am compelled to observe that you are not altogether unbiased by personal considerations in the choice of the course of life which you have adopted (no doubt for reasons which appear to you satisfactory, though they do not convince me). I venture accordingly, though with the greatest deference, to call upon you not to exercise your profession; at least I am not indisposed to think that I may, upon full consideration, feel myself compelled to do so.’
This parody is of course grossly unfair. It shows, however, the impatience of a highly intelligent and practical man (an Indian administrator, a judge and a historian of the criminal law) at Mill’s view that it was possible to construct a philosophy of government starting from the premise that individuals were isolated beings and going on to the view that the whole art of statecraft consisted in delimiting little areas of privacy within which they could be allowed to cultivate their own garden. Stephen believed, on the other hand, that every society has its own conception of the good life and that it was proper to use political power to promote that conception. He was fully conscious, however, of the dangers of extreme authoritarianism which such a doctrine carried. How did he deal with them?
In considering legislation on an issue of private morals, he argued, the State should ask precisely the same kind of question and make the same kind of calculation as in legislating about any other subject. Obviously, the first consideration was whether the end which the new law promised to promote was in itself a good or bad end. The second consideration was whether, assuming it to be good, it was so good as to counteract the inevitable disadvantage of making a new law at all, i.e. the disadvantage of restricting the sphere of freedom and enlarging the territory of social life subject to coercion.
It seems to me that these principles should be the starting point of all our thinking about legislation to do with the conduct of private life. There are moral ends which it is perfectly proper to defend or promote by the use of legislative power, and some of them are of a kind which concern extremely intimate activities. It is not true that the happiness of the people and the quality of a society’s life is wholly unaffected, for example, by such factors as its marriage customs or the extent to which its members are addicted to drug taking or homosexual practices. It may be that marriage is a bad institution, that drug taking and homosexuality are either morally neutral or positively virtuous activities, but it cannot be said that these things belong to a department of life which produces no social effects and which is consequently and obviously outside the legitimate sphere of State activity. We shall think much more soberly, rationally and constructively about all these controversies if we begin by ridding ourselves of the temptingly simple solution which Mill offered.
Yet, it is clear that there are particular difficulties in legislating about personal morals. To begin with, who is to decide what morals should be enforced ? This is indeed only one part of the large and perennial question in political thought. Who has a right to decide anything? No doubt, the constitutional answer is that in a democracy the decision rests with the majority; yet, particularly where deep and highly personal convictions are concerned, the democracy must do its best to respect minorities. An unusually large consensus of opinion is needed to make legislation on such matters tolerable or even practical. To take a practical instance: a politician faced with the problem of whether or not to support Mr Steele’s recent Abortion Bill cannot, even in the first instance, confine himself to asking whether his conscience tells him that abortion is or is not acceptable. He must consider what the general public body of opinion is on this subject. He must consider himself rather as the interpreter of the national conscience in so far as there is one than as the people’s moral mentor.
Morals are not static. We are all tempted to confuse them with ethics. The most rigid of practising Christians, for example, is bound to admit that the teaching of the Church on such questions as the legitimacy of usury have changed drastically throughout the centuries. What is more, if he is a rational man, he must also admit that these changes have not necessarily been the result of human weakness and fallibility so much as the result of the perennial need to adapt constant principles to changing circumstances.
Even when the rule does not in itself change, the precise degree of importance which attaches to the breaking of it may not remain constant. Pace the Bishop of Woolwich, it is hard to see how a Christian, without gross infidelity to the sources of his religion, can take the view that pre-marital unchastity need no longer be regarded, in an absolute sense, as wrong. Yet, there is no reason on earth why a Christian should not admit that the moral importance of this offence has been considerably altered by the invention of effective contraceptive devices. Those who legislate about morals, even those who preach about morals, ought to look closely at the societies for which they are legislating or which they are exhorting.
Suppose, however, that a firm consensus of opinion on the extreme importance of discouraging some private activity deemed to be immoral has been discovered. Suppose that it is widely felt that the continuing practice of this activity damages the whole quality of social life and causes ever-growing human misery. Other conditions have still to be satisfied before a wise legislator can decide to bring the brute force of law to bear on those who persist in defying social convention.
He has in the first place to ask himself whether any law he may decide to make can be enforced, or enforced with enough impartiality and constancy to stop its becoming an intolerable affront to the principle of legal equality. Failing this, he has at least to be sure that the presence of this unenforceable law on the statute book will in fact produce a favourable effect on human behaviour, that it will perform the functions of a sermon rather than a threat. If the law is to be made, it must also be established that the cost of enforcing it in terms of human happiness and virtue is not so great as to offset the merits of enforcing it.
These calculations are never easy and can seldom be made with complete certainty. An even harder judgment is involved in distinguishing between activities which can be safely regarded as wholly deplorable and those which, however much they may offend current sentiment and however bad their contemporary effects may be, may nevertheless contain potentialities for good. Most experiments in thought and living are initially somewhat grotesque in character; society has often come to value things which it originally regarded as destructive and abominable. What liberals who assert this principle often forget, however, is that the innovations which have survived and sometimes come to be regarded as valuable elements in civilisation are those which have withstood the test of popular criticism. We remember the heresies which have matured into orthodoxy, the experiments which were once persecuted and have come to be revered. We forget the numerous aberrations, absurdities and quackish remedies which have fallen by the wayside and which, but for the sometimes healthy force of public intolerance, might have destroyed society or stultified progress.
ISSUES OF PRINCIPLE
These principles are abstract enough, but it is my purpose here to indicate the questions to be asked about this particularly delicate and complex kind of legislation rather than to prescribe the answers they should get. The one fact which surely does emerge clearly is that legislation about morals, which so often raises passionate controversy, is peculiarly unsuitable for the attentions of either confirmed, professional ‘reactionaries’ or confirmed, undiscriminating ‘progressives’. We could, I am convinced, have spared ourselves a good deal of emotion and reached, on various matters, much sounder conclusions had this truth been recognised.
Take, for instance, the controversy which ended with the passing of the Sexual Offences Act 1967. There can be very little doubt that there is in this country a strong consensus against homosexuality; the practising homosexual is still regarded with some degree of instinctive horror, and there are virtually no parents who would not go to almost any length to ensure that their sons did not become homosexuals. Had the object of legalising homosexual acts been to promote the practice of homosexuality as an experiment in living, the Bill would have been unimaginable.
As it was, the question was whether the old law did anything to discourage homosexuality and, if so, at what cost this was achieved. Sexual inclinations once formed do not easily respond to even the direst threats of punishment. One object of punishment, the reform of the criminal, could in this case be said to be positively frustrated by the kind of punishment imposed. What better way of fostering spreading homosexuality than incarcerating those who are addicted to it in one-sex prisons! The cruelty and ineffectiveness of the punishments were equalled only by their arbitrariness. It was a scandal that some, aided by good fortune, should be able to practise this vice with impunity while others went to prison for it. The homosexual was also particularly exposed to blackmail, and the old law, in failing to suppress one sort of corruption, encouraged another.
Only one respectable argument against the Bill was ever raised. It was felt that the very presence of the old Act on the Statute Book was a token of public abhorrence of this vice and that, in the course possibly of decades; its removal would produce a slackening in private morals. Since the Bill also provided for a considerable increase in the penalties for seducing the young, it seemed to Parliament that the rather nebulous and long-term objection to it was overwhelmingly offset by the amount of useless and corrupting misery which it would prevent. I am sure that Parliament was right.
I do not think the issues of principle were nearly so clearly considered in the case of Mr Steel’s Abortion Act. This arose at least in part from the unwillingness of many of the Bill’s supporters to formulate clearly the main question which it presented-is abortion acceptable on social as distinct from medical and technically psychiatric grounds ?
The Bill had three distinct aims. The first was to make the responsibilities of doctors and their liabilities much clearer than they were as a result of Mr Justice McNaughton’s famous judgment in the thirties. A law which imposes severe penalties ought certainly to be predictable. The second was to end the state of affairs in which a rich woman could get an abortion competently performed while a poor woman could not, a state of affairs which was objectionable on grounds of legal equality. The third and closely related object was to put an end to what are believed to be the vast numbers of illicit abortions dangerously carried out by amateurs.
These were in themselves worthy objectives, but it is not clear that the Act will fulfil them. How can a court be expected to decide whether a doctor has acted in good faith in deciding that an abortion is necessary ‘to the mental and physical health’ of other children in the family? Do we think that abortion should be acceptable purely on grounds of social convenience, and how should that phrase be interpreted?
It is not at all clear that as a result of this reform doctors can be any more sure of their rights than they used to be, nor is it clear that illegal abortions will diminish. There is still far too much confusion about which ought and which ought not to be legal. It may be that the lines of demarcation cannot be laid down precisely by the law itself. In this case, there would have been much to be said for an amendment favoured by the House of Lords which proposed that abortions should be sanctioned and carried out only by a panel of approved doctors.
It is equally doubtful whether the principal moral question presented by the reform of the Divorce Law now being proposed has been properly put. That question is whether we regard marriage merely as a contract between two individuals to be terminated by mutual consent when it is no longer desired by either, or whether the community as such has an interest in preserving the institution. There can be no doubt that public opinion is still overwhelmingly in favour of life-long marriage as the normal social rule, and that the institution of the family is still regarded as an essential element in our social arrangements. Equally, it is clear that public opinion is now predominantly in favour of allowing the dissolution of marriages which have irretrievably broken down when dissolution can be brought about with proper regard to the interests of both parties. It may well be that a separation of five years does constitute proof of irretrievable breakdown, even when one party still wishes to assert his or her rights over the other. It is quite indefensible, however, to suggest that two years separation accompanied by mutual consent is proof that there is no future in a marriage. What, in such intimate circumstances, really constitutes free consent? Even if it could be established that in the present conditions of the law most couples who had been separated for two years never came together again, it certainly cannot be established that if the marriage bond could be legally dissolved by such separation many a couple who at present succeed in sticking together would not accept defeat long before it had really happened.
Yet another principle is involved in the current controversy over the right to buy and use soft drugs. Respectable medical and sociological opinion is still divided over the question of whether the use of such drugs leads inevitably or generally to the use of hard drugs. What is certain is that the current craze for drugs is part of a general movement of cultural protest, a movement which seems to even relatively unbiased observers to protest against society itself. It may be (though I am inclined to think that it is not) that some elements in this protest will eventually be recognised as valuable and will become incorporated in the culture of civilised countries. In its present manifestations, however, this movement is something which no one concerned to maintain any kind of social cohesion can regard without horror and abhorrence. It may be that in fifty years time marijuana will have proved a healthy substitute for alcohol. Like other experiments it must pass through the sieve of popular criticism. To legalise it today would be an act of insanity.
It is part of the State’s business to promote morality. This can sometimes be done by enforcing morality. Persistent and pettifogging interference with privacy, even when undertaken in apparently good causes, defeats its own end. In our society much of this interference is undertaken in defence of causes, such as the control of drunkenness on a massive scale, which have ceased to be relevant to contemporary life at all. One of the most important tasks of the wise legislator in the field of morality is to do away with unnecessary restrictions which merely discredit authority.
In the end, it is not government which supplies the content of morals or even plays the main part in conveying them from one generation to the next. In Western civilisation it is the function of the family. How to strengthen that institution by emphasising instead of persistently diminishing its responsibilities is one of the main questions now facing us. Though it is much too large to be debated here, one aspect of this question must be briefly mentioned.
The relationship between the law and parental responsibility is extremely subtle. It is hard to expect parents to stop their children from acquiring anti-social habits which the law appears to regard with indifference. Strong laws can support parental authority. On the whole, however, parental discipline of the young is almost always more humane and effective than that administered directly by the law. Keeping delinquent children out of court ought certainly to be one of our main legislative aims. But in the process parents should not be made to appear as publicly maintained vigilantes hand in glove with the authorities. They are there as much to protect their children against the law as to insist that they obey it. In this respect, the Government’s recent White Paper on Young Offenders shows a good deal more common sense than the former proposal for a partnership between parents and welfare workers exercised through family councils.
For the Conservatives to emerge today either as the committed enemies of social and cultural change or as its indiscriminate supporters would be equally out of tune with the party’s tradition. The Tory Party stands both for social cohesion and for social evolution. Nowhere is the maintenance of a sane balance between these two aspects of Conservatism more important than in the debate about law and morals.
First published in June 1968 by the Conservative Political Centre, this paper by T.E. Utley was posted here with the kind permission of the T. E. Utley family
The Author – T. E. Utley