Perhaps never in human history has the relationship between law and morality been more important. And yet what association there certainly is between law and morals is far from simple. Despite attempts throughout history to merge them, make them co-extensive, those efforts always fail as law and morality, even when they do overlap from time to time as in the criminal law, still occupy their own distinct realms.
(For my video on this topic click below)
In the post-Nuremberg era, the era of supra-national laws, the notion that a law can be immoral is widespread among the rabble and intelligentia, especially when the law treads into the political. It is the stuff of everyday life to hear of this immoral law or another, such as a law purporting to limit access to abortion, limiting immigration or same-sex rights. It follows that state action based on law, even if duly enacted, can still be decried as ‘illegitimate”, anti-law or not law at all.
We are in fact at an ideal point in the history of the West to stop and consider anew what we really mean when we consider law’s role in enforcing morals of whatever kind. One of the best ways of doing that is to juxtapose two points in time, at each end of which you can observe a society that has gone through a dramatic transformation in its morals. For my purposes, I will juxtopose a period of the late 50s early 60s with our own time. The mid 50s and early 60s was still a time when the majority saw nothing wrong with laws banning abortion, euthanasia and prostitution and also favoured keeping certain homosexual acts in private a criminal offence. Lesbianism was never a crime in the United Kingdom for some reason, and we can speculate as to why. Perhaps it has something to do with what a patriarchy considers particularly odious and contrary to its male conception of public order. We will leave this as an aside.
As a source of my point of comparison, I refer to a book made up largely of the lectures of Lord Patrick Devlin, entitled the “Enforcement of Morals”, published in 1965. I will also be drawing liberally, if not as a liberal, from the book, the “Idea of Law” by Lord Dennis Lloyd, published in 1965.
The Ancients
There is no question that one of the sources of law’s legitimacy and authority is the belief in our moral obligation to obey the law. If all laws had to be enforced by violence, society would be unmanageable. There will never be enough police or sedatives for that. It is far better if people believe that breaking the law is immoral, a sin you might say, in which case the state can count on most people, most families and communities to enforce their own behaviour without the state lifting a finger.
We have become accustomed in modern times to a purely secular conception of law. We do not appreciate how recent a phenomenon this is. Our ancestors up until fairly recent times saw law as having divine origins. Law, morality and religion were treated as necessarily linked, one supporting the others.
Some laws could be traced directly to God, like the 10 Commandments. Other laws were treated as divinely inspired rather than from God’s ink well or stone chisel. Lawgivers in anciety times, were often treated as semi-mythical or semi-divine or heroic figures.
To the ancients, it would have been inconceivable that a system of laws worthy of the name could exist while depending entirely on force for its legimacy and application. A law had a legitimacy in se, in itself.
Of course. the ancients and even the pre-moderns were very clever at devising colourful penalties for various crimes, such as boiling a cook/poisoner in oil, or lopping off the hands of a thief or, for the heinous crimes of treachery, the humiliating penalty of a drawing and quartering.
But this was truly exceptional; few criminals were ever caught (I have heard an estimate of 2% for murderers in medieval Europe) and thus the law always depended on common values and general compliance.
Certainly, making an example of the criminals who were caught played its part. One can question whether penalties need to be adjusted from time to time, depending on fluctuations in the level of common public morality. An extremely moral people probably doesn’t require the death penalty; shame or exile would probably be sufficient as was the case with Socrates. On the other hand, a wholly immoral, atheist, hedonistic, materialist society — much like our own — probably requires a whole lot more torture, long jail sentences and executions, to reduce the crime rate, because only fear of pain and the loss of pleasure will have the desired effect; honour meaning very little to an immoral population. In that sense, the tendency towards leniency in modern systems of law may be the exact opposite of what is required. But I will leave that to the criminologists.
When we hear of a Draconian law, we think of a law that is cruel and arbitrary. This is a misunderstanding of what Draco did and what the term “draconian” actually means. It refers to Draco’s penalties, not to the laws themselves — which were run of the mill stuff: do not murder, do not steal, etc. Finding the people were not abiding by the laws of the polis, Draco simply made death the penalty for all infractions, which was designed to get people’s attention, which I assume it did. After turning up the penalty knob for a while, the penalties can be reduced as forced morality kicks in. Perhaps this was Robespierre’s thinking when he spoke of Virtue through Terror.
But quite apart from human action in enforcing the law, to the ancients, since the laws were divinely inspired, there was no escaping punishment. If the state didn’t get you, the gods would. The Greek dramatists wrote of Orestes, who, to avenge his murdered father, kills his mother and her lover. But now he is a matricide, a very serious breach of the law. The divine Furies pursue poor Orestes until he implores another god, or goddess in this case, Athene, to intervene on his behalf. Only a god can stay the application of divine law by another god. After Orestes is narrowly acquitted by the jury. Athena calms the enraged chorus of Furies and then explains: “It is my glory to hear how these generosities are given my land. I admire the eyes of Persuasion, who guided the speech of my mouth, toward these, when they were reluctant and wild. Zeus who guides men’s speech in councils , was too strong; and my ambition for good wins out in the whole issue.”
An early distinction emerges between the Greek polytheistic view of divine law, which allowed for some flexibility in its application, given a polytheistic view of the world. One god could modify the will of another, if you were lucky. By contrast the Hebrew, monotheistic approach, allows no flexibity. God’s law is applied imperatively and inflexibly. The Bible is full of tales of rulers who disobeyed God’s law, and got their septers handed to them so to speak. The interpretation of God’s law was often left in the hands of the most charismatic prophets, burning with religious zeal.
No mere man-made law could stand next to God’s law — and we have here a very early notion of higher law, be it natural law, or even the notion of a human right or constitutional civil rights as we know them, that can be used to strike down law of a lower order, be it a state or national law — and if there is religious zeal in the advocates for abortion or gun rights or same sex marriage, the source of that zeal may well be religious in nature, much like what inspired the prophets of the Old testament. The contrast between God’s law and mere human law is resolved in a “draconian” fashion, by smashing the human law utterly, its rulers and misguided people.
The Hebrew and early Calvanist approach leaves no room for differences of interpretation. To be against God’s law is to be a heretic, just as being against abortion or same sex marriage or climate change today is to be a secular heretic of the foulest kind.
Into this vision of law and morality come, once again, the Greeks, with a faith in a rational order to the universe, governed by intelligible laws ascertained by rational investigation. Obviously, this is a very rose coloured Enlightenment tainted perspective on the ancient Greeks, who were no strangers to collective madness and had strong mystical traditions of their own, evidenced by the orphic rights and oracles at delphi — but the staunch belief in reason by the philosophers and law makers, justified or not, did end up changing our conception of law or of law and morality — in fact separating them, giving them their own orbits. Thus, the Greek approach to law and morality remains much closer to the modern view.
Greek thinkers believed that man’s reason shared in the divine nature of the universe and thus man is capable of understanding it. We see this in the concept of Logos, or divine reason and creative order, to which we have access.
Greeks got around the ancient world, whether or not they were the sea people who brought on the Bronze Age collapse, as some speculate, and when they did get around they noticed that different peoples had different laws. They noticed that there were laws that couldn’t possibly be rationally justified. The Greeks recognized that some laws were human in origin and yet possessed a legitimate autonomous position in society and had to be obeyed by citizens, whether or not they agreed with them or not. A citizen had a moral obligation to obey a human law even if he believed it to be immoral.
This comes to the for in the trial of Socrates, sentenced to death or exile for corrupting the youth of Athens. He chose death. And though he regarded these laws as unjust, he reasoned that he was morally bound to abide by them. In Plato’s Crito, Socrates explains, “Ought a man to perform his just agreements or may he shuffle out of them?…. Then consider. If I escape without the state’s consent, shall I be injuring those whom I ought least to injury or not? Shall I be abiding by my just agreement or not? … and to obey in silence if it orders you to endure stripes or punishment… “. This was the painful dilemma presented to the citizens of Athens by the idea that to live according to the laws was the highest unwritten law – even if this could -- as Plato showed in the case of Socrates -- lead to the condemnation of the most just man alive. An immoral law remained law, unless you could persuade the citizens in the assembly to amend the law or the jury to acquit you.
Fair to say the view in our times is that although the law and morality do often occupy the same ground there is no necessary coincidence between the dictates of law and morallity. Also, in the total state, which meddles increasingly in every aspect of our lives, the banality of many laws and regulations makes any association with morality absurd. Laws are merely the strings connecting us to the puppet master that we cut if we can.
Since the advent of the automobile and income tax laws, the notion of the morality of avoiding the law takes on a life of its own. This secular amorality is reflected in the common practice of going somewhat over the speed limit or in the right of a citizen to avoid taxation if he can do so, lawfully, a kind of nobility of avoidance, often with the help of highly paid lawyer. Law and morality appear to be moving in opposite directions.
Law and morality have come to occupy their own spaces, with a shattering of once common norms. Traditional religious communities maintain one kind or several forms of morality, with variations based on the cult. Meanwhile an ever increasing secular, materialist state and its growing patrons among the non-religions began increasingly to ask, with ever greater stridency, by what right has any private morality to intrude in our private spaces.
Opposing secularization and limiting the places where law can and should go, were those who warned that a full decoupling of law and morality, especially Christian morality, would lead inevitably to great harm to society, and to specific harm to individuals, religious or not, who would no longer be protected by the traditional moral codes. These codes provided downstream protections that are not always evident when morality was enforced rigidly, without utilitarian or communitarian calculation.
Finally, in the current years, long after many of the traditional moral codes have been struck down, you can see the turning of the tables, where the once “immoral”, once sanctioned and “persecuted” by the law, becomes dominant and then calls itself the “Moral” under a new social order and then —in an amazing about face, demands that the law now enforce the new cult or the new morality. The tables have truly turned at this point
There is no better illustration of this than the famous Hart-Devlin debates concerning the laws that at the time made male homosexual relations in private a crime.
In 1954 in the UK, a committee chaired by University Vice Chancellor John Wolfenden and comprised of judicial officers, politicians, medicos, ministers of the crown and other illustrious ones, was convened to examine the laws relating to homosexuality and prostitution. Reporting three years later in 1957, the committee recommended that consensual homosexual behaviour in private between consenting adults should no longer be a criminal offence.
The recommendations were not acted on until the sixties in the UK and elsewhere in the decades to follow.
The committee concluded that although the law’s function is to preserve public order and decency, it was not its function to concern itself with private immorality, and intrude into the private lives of citizens, or to seek to enforce any particular pattern of behaviour: “The rhelm of private morality is none of the law’s business.” This was a bold assumption.
In Canada, in the late 1960s, then Prime Minister Pierre Trudeau, not to be confused with his son who became a successful substitute drama teacher, surfer and master of disguise, introduced revisions to the law decriminalizing homosexual acts, under the mantra that the state had “no business in the bedrooms of the nation.”
The enshrinement of the mantra into a truism, and the seeming decoupling of laws from a system of then public morality, has in our time given rise to a new and perhaps more pressing question, whether bedrooms belong on the streets of the nation, or in our school gymnasium or in other public spaces? In considering this question, Lord Devlin’s response to the Wolfenden report becomes interesting.
The Hart-Devlin debate, which was an exchange of lectures and papers, not a face to face debate, was kicked off in 1957 with a lecture by Devlin entitled, the “enforcement of morals”. He argued that the criminal law is not just there for the protection of individuals, but society as a whole, its institutions, ideals and morals.
In 1962, professor Hart, a professor of jurisprudence at Oxford, responded in a classic series of lectures entitled, “Law, Liberty and Morality.” Hart argued following John Stewart Mill that unless something is harmful to society, the government has no right to interfere in the private lives of its citizens. The debate continued through the 60s.
Today, the issues of drugs, abortion and prostitution remain lively centres of political debate. The issue of the criminalization of male same sex behaviour has moved quite a distance since the 60s and may be considered resolved and entrenched in favour of complete decriminalization and normalization. It has moved through the decriminalization phase, through to the rights stage and into a new evolving public morality stage that, interestingly enough, can now perhaps rely on the arguments put up by Devlin to enforce a new social morality on the non-compliant and non-believing population.
In considering Devlin’s arguments, one is struck by the frailty of the moral relativist position. It is likely Devlin and his supporters could not fathom a turning of the tables, and thus floated a moral relativist position on the assumption the moral position of the 50s and early 60s was in no risk of being supplanted any time soon. If so, they were gravely mistaken. A lesson learned may be that if you really can’t fathom the tables being turned, best to make arguments rooted in a fixed morality. With the benefit of hindsight, might Devlin have been better off advancing a natural law position, rather than a classical liberal one?
Devlin argued that the law should be based on shared social morals. One can speculate what might have happened if those shared moral beliefs had remained entrenched in the criminal law, whether it would have served more to preserve than to oppress and whether the world of flux we live in today, arguably to our detriment, could have been avoided or delayed. Wonder all you like, but that is not what happened.
Specifically, Devlin set out to prove three things:
1. The law should reflect generally shared public morals, which includes situations where harm to individuals is not at stake;
2. It is the source of the law’s legitimacy and a true expression of the criminal law’s role to protect all the society and not just a collection of individuals who make up the society;
3. Public morals can and do change and when they do, laws should move with them — but not before. Law is downstream from public morals.
Devlin in #3 postulates English law has no rooted morality. That seems at odds with other aspects of the speeches set out below, and may simply have been a rhetorical tool or a tipping of the hat to liberalism and democracy of the day. Otherwise, that is a highly questionable proposition. He grants that if morals change, the law would change also. He spends little or no time on the forces that can change morality, that are not necessarily innocent and organic and which may have their own private agency and mischievous intent. He takes no account of propaganda, state controlled media or an public education system that is firmly in the hands of a clique or faction that seeks to serve only its private interests. Whatever his personal beliefs, Devlin was prepared to countenance a complete transformation of society if public morals changed fundamentally, which implies moral relativism.
Years later, when considering for example the same sex marriage debate, the polls consistently showed the public morals to be against same sex marriage, with the tide only turning in around 2011-12 in the US. In Canada, all political parties professed support for the traditional family as recently 2003, and yet in 2005 same sex marriage was made legal. This suggests there is something more at play than the common or popular will; that some top down pressure was at work, an organized movement at the controls, with the laws changing ahead of public morals and then creating a steamroller effect after that.
DEVLIN’S ARGUMENT
The two main arguments advanced in support of his position were:
A) Social order requires the law to reflect privately held moral beliefs, not just things that hurt people. Laws need to protect the community and to do that laws must criminalize activities that challenge accepted moral norms.
Devlin never addresses directly the indeterminacy of Hart’s reliance on “harm” as the green light for state action. This is perhaps more evident today, when harm has been redefined (as one could have predicted) to include uncomfortable ideas, hurt feelings, minority and taboo views on science and history, and unconventional interpretations of the “current thing”, not to mention the growing list of hate crimes (that seem to have little to do with actual harm), propaganda and safe spaces, and the suspension of civil liberties to make us safe. Harm is a remarkably indeterminate and flexible term and rife for abuse.
B) Devlin’s second argument is that the public needs to believe and see that the law is actively protecting its private morality — not just protecting it from immediate harm.
Devlin gives two reasons for the first argument.
i) a utilitarian argument: when you protect shared morals, you prevent harm even if it’s not immediate harm. The law’s purpose is to set the moral standards that prevent indirect harm; people are hurt downstream from loosening public morals.
For example, incest could be consensual and harm free, yet Devlin argues you have to protect the family generally and the social fabric of society in the broad sense by enforcing a norm against incest, even if it can be shown that in some cases there is consent and no harm.
Teleporting to our times, the “no harm” argument is being readily used today to target ever more entrenched social taboos. There are not many left, but they are all in the sights.
Another example are laws against animal cruelty. No person is harmed by animal cruelty, obviously, but that is no reason to permit it. One of the very important purposes of animal cruelty laws is to prevent downstream harm from those who move from animal cruelty, to cruelty to people and then to much, much worse. The careers of many serial killers begin with animal cruelty.
But protecting the sentient being itself has value. These laws are upholding society wide norms against cruelty per se.
ii) the Communitarian justification: even if the law isn’t preventing harm per se, the law still needs to uphold shared morals to preserve and protect integrated communities. A strong and successful community has shared values that hold it together. Communities are stronger when people know that there are shared values, and one way to be reassured of that are the laws. For example, it is good to know that the guy across the street has the same fundamental values you have and even if he doesn’t he will abide by the law. A society is worse off without protected common morals. People become less trusting, less integrated, more stressed and depressed if those shared morals are not there as reflected by the law.
Devlin wrote:
“Society is something more than people living in proximity to each other in a state of peace”.
As for the second argument ((B) above), Devlin sees laws legitimacy as coming from the people, very much a social contract/Rousseau model. He argues that this requires the state to meet public expectations as to what activities should be punished. Failing to do so invites popular unrest, risks having laws regarded as illegitimate and even triggering vigilanteeism. To avoid this, the law should reflect what people consider right.
The problem with the latter, as eluded to above, is whether there is such a thing as an organic common will eminating from the “people”. Elite theory refutes this. It may be that the people, over extended periods of time, perhaps many generations, can preserve public morals and thus can preserve a good society, but modern times suggest that morals can be manipulated and changed by a powerful elite, with ever more sophisticated tools of control and manipulation and with the full participation of public education and the mainstream media.
Given some of these weaknesses in Devlin’s position, it is worth quoting him directly, as the full text of his speeches show a much greater commitment to the then existant code of public morality, than the above summary suggests. The quoted passages are from the Maccabaean Lecture in Jurisprudence, given March 18, 1959. He starts by suggesting the inevitability of a kind of moral relativism as noted — but then the tone changes. He seems to assume that many established moral taboos were at no risk of being toppled by the recommendations of the Wolfenden commission. He was wrong. His speech also lays great emphasis on collective values, and the catastrophic impact on a society when those values are lost or fragmented. The impressive transformation of society since he penned and delivered these words give them the character of a warning as to the dangers of completely decoupling public moral codes, from the law. It is a warning that was not heeded:
Morals and religion are inextricably joined-the moral standards generally accepted in Western civilization being those belonging to Christianity. Outside Christendom other standards derive from other religions. None of these moral codes can claim any validity except by virtue of the religion on which it is based. Old Testament morals differ in some respects from New Testament morals. Even within Christianity there are differences. Some hold that contraception is an immoral practice and that a man who has carnal knowledge of another woman while his wife is alive is in all circumstances a fornicator; others, including most ofthe English-speaking world, deny both these propositions. Between the great religions of the world, of which Christianity is only one, there are much wider differences. It mayor may not be right for the State to adopt one ofthese religions as the truth, to found itselfupon its doctrines and to deny to any ofits citizer:s the liberty to practise any other. If it does, it is logical that it should use the secular law wherever it thinks it necessary to enforce the divine. If it does not, it is illogical that it should concern itself with morals as such. But if it leaves matters of religion to private judgement, it should logically leave matters of morals also. A State which refuses to enforce Christian beliefs has lost the right to enforce Christian morals. If this view is sound, it means that the criminal law cannot justify any of its provisions by reference to the moral law. It cannot say, for example, that murder and theft are prohibited because they are immoral or sinful. The State must justify in some other way the punishments which it imposes on wrongdoers and a function for the criminal law independent of morals must be found. This is not difficult to do. The smooth functioning of society and the preservation of order require that a number of activities should be regulated. The rules that are made for that purpose and are enforced by the criminal law are often designed simply to achieve uniformity and convenience and rarely involve any choice between good and evil. Rules that impose a speed limit or prevent obstruction on the highway have nothing to do with morals. Since so much of the criminal law is composed of rules of this sort, why bring morals into it at all? Why not define the function of the criminal law in simple terms as the preservation of order and decency and the protection of the lives and property of citizens and elaborate those terms in relation to any particular subject in the way in which it is done in the Wolfenden Report? The criminal law in carrying out these objects will undoubtedly overlap the moral law. Crimes of violence are morally wrong and they are also offences against good order; therefore they offend against both laws. But this is simply because the two laws in pursuit of different objectives happen to cover the same area. Such is the argument. Is the argument consistent or inconsistent with the fundamental principles of English criminal law as it exists today? That is the first way of testing it, though by no means a conclusive one. In the field of jurisprudence one is at liberty to overturn even fundamental conceptions if they are theoretically unsound. But to see how the argument fares under the existing law is a good starting-point. It is true that for many centuries the criminal law was much concerned with keeping the peace and little, if at all, with sexual morals. But it would be wrong to infer from that that it had no moral content or that it would ever have tolerated the idea of a man being left to judge for himself in matters of morals. The criminal law of England has from the very first concerned itself with moral principles. A simple way of testing this point is to consider the attitude which the criminal law adopts towards consent. Subject to certain exceptions inherent in the nature of particular crimes, the criminal law has never permitted consent of the victim to be used as a defence. In rape, for example, consent negatives an essential element. But consent of the victim is no defence to a charge of murder. It is not a defence to any form of assault that the victim thought his punishment well deserved and submitted to it; to make a good defence the accused must prove that the law gave him the right to chastise and that he exercised it reasonably. Likewise, the victim may not forgive the aggressor and require the prosecution to desist; the right to enter a nolle prosequi belongs to the Attorney-General alone. Now, if the law existed for the protection of the individual, there would be no reason why he should avail himself of it if he did not want it. The reason why a man may not consent to the commission of an offence against himself beforehand or forgive it afterwards is because it is an offence against society. It is not that society is physically injured; that would be impossible. Nor need any individual be shocked, corrupted, or exploited; everything may be done in private. Nor can it be explained on the practical ground that a violent man is a potential danger to others in the community who have therefore a direct interest in his apprehension and punishment as being necessary to their own protection. That would be true of a man whom the victim is prepared to forgive but not of one who gets his consent first; a murderer who acts only upon the consent, and maybe the request, of his victim is no menace to others, but he does threaten one of the great moral principles upon which society is based, that is, the sanctity of human life. There is only one explanation of what has hitherto been accepted as the basis of the criminal law and that is that there are certain standards of behaviour or moral principles which society requires to be observed; and the breach of them is an offence not merely against the person who is injured but against society as a whole. Thus, if the criminal law were to be reformed so as to eliminate from it everything that was not designed to preserve order and decency or to protect citizens (including the protection of youth from corruption), it would overturn a fundamental principle. It would also end a number of specific crimes. Euthanasia or the killing of another at his own request, suicide, attempted suicide and suicide pacts, duelling, abortion, incest between brother and sister, are all acts which can be done in private and without offence to others and need not involve the corruption or exploitation of others. Many people think that the law on some of these subjects is in need of reform, but no one hitherto has gone so far as to suggest that they should all be left outside the criminal law as matters of private morality. They can be brought within it only as a matter of moral principle. It must be remembered also that although there is much immorality that is not punished by the law, there is none that is condoned by the law. The law will not allow its processes to be used by those engaged in immorality of any sort. For example, a house may not be let for immoral purposes; the lease is invalid and would not be enforced. But if what goes on inside there is a matter of private morality and not the law's business, why does the law inquire into it at all? I think it is clear that the criminal law as we know it is based upon moral principle. In a number ofcrimes its function is simply to enforce a moral principle and nothing else.
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This view-that there is such a thing as public morality can also be justified by a priori argument. What makes a society of any sort is community of ideas, not only political ideas but als.o ideas about the way its members should behave and govern theIr lives; these latter ideas are its morals. Every society has a moral structure as well as a political one: or rather, since that might suggest two independent systems, I should say that the structure of every society is made up both of politics and morals. Take, for example, the institution of marriage. Whether a man should be allowed to take more than one wife is something about which every society has to make up its mind one way or the other. In England we believe in the Christian idea of marriage and therefore adopt monogamy as a moral principle. Consequently the Christian institution of marriage has become the basis of family life and so part of the structure of our society. It is there not because it is Christian. It has got there because it is Christian, but it remains there because it is built into the house in which we live and could not be removed without bringing it down. The great majority of those who live in this country accept it because it is the Christian idea of marriage and for them the only true one. But a non-Christian is bound by it, not because it is part of Christianity but because, rightly or wrongly, it has been adopted by the society in which he lives. It would be useless for him to stage a debate designed to prove that polygamy was theologically more correct and socially preferable; if he wants to live in the house, he must accept it as built in the way in which it is.
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I think, therefore, that it is not possible to set theoretical limits to the power of the State to legislate against immorality. It is not possible to settle in advance exceptions to the general rule or to define inflexibly areas of morality into which the law is in no circumstances to be allowed to enter. Society is entitled by means of its laws to protect itself from dangers, whether from within or without. Here again I think that the political parallel is legitimate. The law of treason is directed against aiding the king's enemies and against sedition from within. The justification for this is that established government is necessary for the existence of society and therefore its safety against violent overthrow must be secured. But an established morality is as necessary as good government to the welfare of society. Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions.
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But the true principle is that the law exists for the protection of society. It does not discharge its function by protecting the individual from injury, annoyance, corruption, and exploitation; the law must protect also the institutions and the community of ideas, political and moral, wIthout which people cannot live together. Society cannot ignore the morality of the individual any more than it can his loyalty; it flourishes on both and without either it dies.
Fair to say, we have reached a level in the shattering of common values, or at least of our former common ones, and a tangible disintegration in social cohesion and trust, that we are well beyond the point we could be said to be “flourishing”. With the moral tables turned, our laws are now being hooked to a relativist wagon taking us in a direction many of us don’t want to go. And if we don’t like where we are going, we need to revisit the role of morality and law and consider where we may have gone wrong.