Page 7, 12th October 1984

12th October 1984
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Page 7, 12th October 1984 — Law reform priorities
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Law reform priorities

In a follow up to his recent article, Law and Morality, Simon Lee, lecturer in law at King's College, London, explains how the law must uphold morality in society.

IN AN earlier article, I tried to explain why the Archbishops are right to say "We do not seek to have all Catholic moral teaching imposed by law". The question remains, which parts of our teaching should, and which should not, be imposed by law?

The secular world, including both the Wolfenden Report and the 1979 Williams Report on Obscenity and Film Censorship, relies on John Stuart Mill's essay On Liberty: "The only purpose for which power can rightly be exercised over any member of a civilised community against his will is to prevent harm to others".

The harm-to-others principle has, unbeknown to most 'liberal' thinkers, an even more illustrious author who expressed it nearly 600 years earlier.

St Thomas Aquinas, no less, deserves the credit for this approach. He said, "Law is laid down for a great number of people, of which the great majority have no high standard of morality. Therefore it does not forbid all the vices, from which upright men can keep away, but only those grave ones which the average man can avoid, and chiefly those which do harm to others and have to be stopped if human society is to be maintained, such as murder, theft and so forth".

Legal duty

Of course, this must be read in its thirteenth century context. Law and society have developed considerably since Aquinas' time. Moreover, Aquinas was describing what the thirteenth century law did rather than saying what the law ideally ought to do.

Nevertheless, Aquinas's realism makes sense for us .today, Certainly, it is not the law's function to make all virtue a legal duty. Equally, it is not merely inevitable but appropriate for the law to refrain from making all sin criminal. Coercion is not the best way to shape a conscience.

Unfortunately, neither Aquinas nor Mill develops the harm principle in any great detail. Two major issues confront the harm-to-others approach. What is 'harm' and who are 'other'? Furthermore, many would like to see paternalism creeping in to cover at least some harm-to-self.

Who counts as an 'other' is obviously at the centre of disputes over abortion and experimentation on embryos. The arguments are by now familiar to Catholics so we will look at the equally controversial question of what counts as harm.

Physical harm to person or property is clearly within the ambit of the principle but what about mental, moral, emotional and spiritual harm?

The criminal law's control over pornography, for instance, depends partly on whether one includes the offence and disgust felt by non-participants in the definition of harm.

Even if harm to others is involved, Mill does not say the law has to interfere but rather that it may do.

Presumably, then, society must balance the disadvantages of enforcement with the severity of harm.

Warnock

Does damage to social institutions count as harm? The bishops' submission to the Warnock Committee clearly thinks it does as it stresses the harmful effects to marriage and the family caused by sperm, egg or embryo donation and wombleasing.

The bishops provide a better version of the harm principle when they conclude that "unwisdom which harms another, or undermines a fundamental and valuable form of social life, is the law's proper concern".

This makes sense because the individual needs respect for his individual autonomy and the opportunity to live in community in order to flourish fully as a person.

So the criminal law should protect both his physical and moral integrity, to allow his operation as an individual, and the social institutions such as marriage and the family which he needs to live in society.

It seems, therefore, that the bishops are adopting a sensible approach to the problems of enforcing morality through the criminal law.

Although they need to clarify their understanding of the term "harm", they are right to stress that the law is entitled to protect institutions such as the family.

At this point I would respectfully suggest a change of emphasis away from the criminal law to other areas of legislative reform.

The criminal law may be an inappropriate response to adultery for the reasons outlined in my previous article, but it is a mistake to believe that the law therefore treats adultery as an acceptable form of behaviour. While it is not a crime in England it is a ground for divorce in civil law.

More positively, the law has many different ways of helping the struggle towards social justice. Cardinal Hume has asked us to work with and through Parliament "to achieve necessary reforms" in society.

When talking about one area of concern for the British Church, namely family life, the Cardinal listed several threats: divorce, poverty, unemployment, bad housing, abortion, euthanasia and pornography.

Note that while some of these problems might be alleviated by criminal law bans, most would require different types of legislation to correct them.

What does the Church expect from Governments on these issues? Most importantly in the real world of politics and economics, what are our priorities for law reform?

A final word of warning, however, must be not to overstate the role of law. Unfortunately, some regard abortion as more acceptable now that it is legal. But those who seek to equate law and morality are partly to blame for that mistake.

'If we accept, as I have argued, that there is no necessary link between law and morality, we are free to stress that even though it is legal to have an abortion it is not an acceptable moral option.

Of course, as the Archbishops have forcefully observed, it is then incumbent on us to provide material help to those who reject the legal option of abortion and to educate our fellow citizens on the moral issues involved.

Moving on to the quest for justice, the law is not the best and certainly not the only solution to every social problem.

As Pope Paul VI observed in his 1971 Call to Action, "Legislation is necessary but is not sufficient for setting up true relationships of justice and equality ... If beyond legal rules there is no deeper feeling of respect for a service to others, then even equality before the law can serve as an alibi for flagrant discrimination, continued exploitation and actual contempt."




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