Law and Morality

April 25, 2019

academic law, Author Articles

Scales of Justice

David McIlroy discusses natural law theory and moral justifications in court.

What happens in court is not free-flowing moral argument. Lawyers argue by reference to rules and precedents. This does not mean, however, law is morally neutral or that law is insulated from moral considerations. This is most obvious in family law. Once upon a time in English law, a judge’s ruling as to who was most at fault in a divorce affected not only the grounds for divorce but also the financial award made following a divorce. That was a clear moral judgment which had significant legal consequences. Morality was also behind subsequent developments away from that principle. The decision to uncouple fault from the financial awards made in English divorce courts reflected a moral judgment that fights about who was most at fault for a marriage ending made divorces more acrimonious and had damaging effects on the children caught up the feud between the divorcing parties. There were moral reasons for the courts refraining from seeking to adjudicate on one particular moral question.

The insistence that legal reasoning is a sub-species of moral reasoning is one of the key theses of natural law theory. Natural law theories are not, however, committed to the strong thesis that law must permit a judge to implement their substantive view of morality in their judgments. On the contrary, natural law theories can recognise the moral value of clear rules which permit citizens to form legitimate expectations and of principles by which judges defer to the judgment of parents regarding what is good for their children or to businesspeople about what is good for their businesses (subject to some sort of control mechanism, which may be broader or narrower depending on the legal system).

American Legal Realists re-discovered a century ago that commercial law expressed moral judgments. The formalist approach to legal reasoning, which purports to interpret only the words of the parties’ contract without reference to any background facts or assumptions was based on a moral judgment that the increased certainty in the outcomes of court cases and lower expenditure on lawyers would be better for the community as a whole than the attempt by judges to adjudicate, with the benefit of hindsight, on the fairness of the deal the parties had entered into. What the American Legal Realists exposed was that this was a façade and that the American judges were implicitly relying on moral considerations to interpret contractual wording either more strictly or more broadly. But even if the American judges had been doing what they claimed to be doing, that would have been a stance on moral questions.

In the last 20 years, the judgments of English judges in commercial law cases have shown an increased emphasis on holding parties to the strict wording of their contracts, even though the contract was in a standard form drafted by the stronger party’s lawyers. Such judgments stand in stark contrast to the decisions of Lord Denning, who used his long period on the bench to promote the use of equity to prevent one party from exploiting its power over the other. These competing legal approaches are based on conflicting moral visions about the basic purpose of commercial law: to uphold whatever deal the parties signed up to (pacta sunt servanda) or to prevent big business, with its ability to reduce its obligations and liabilities to vanishing point, from exploiting its power over consumers and small businesses who have no choice but to deal with it on the terms dictated to them. As the Critical Legal Studies movement briefly indicated, the rules could be otherwise.

Legal systems and judges can be more or less explicit in articulating the moral vision which guides them but it is impossible to adjudicate, even the rules appear clear, without presupposing some account of what law is for. Even what look like decisions to take morality out of the courts have to be justified on the basis that doing so will make disputes simpler or more likely to be resolved (as shown by the example of the move away from linking financial provision to findings of fault in divorce cases). Legislation and adjudication are purposive enterprises; they have to be pursued with chosen goods in view. Those goods are complex, and include issues about doing justice in the individual case, about the effect of a decision one way or the other on the legitimate expectations of parties involved in similar situations, and about the capacity of the court to resolve well future disputes. It is not hard to find examples where different courts have weighed those concerns differently: giving effect to substance over form in one case, insisting on strict adherence to formalities in another, overturning established expectations or refusing to do so, imposing the court’s own view of morality in substitution for a party’s decision or declining to do so. A judge’s judgment has to be presented as the best one available in the circumstances. To that extent at least, it is true that law courts are courts of justice.

To pretend that morality does not inform the decisions of judges interpreting the law does not clarify the understanding of law; it hinders a proper analysis. Judges have to, and do, give moral justifications for their decisions. The morality they apply may be wise or it may be misguided. It is only by bringing into the open, as natural law theories and American Legal Realism did, that it can be measured and critiqued.


David McIlroy is a barrister and Visiting Professor at the Centre for Commercial Law Studies, Queen Mary University of London, UK.

He explores these issues further in his new book, The End of Law: How Law’s Claims relate to Law’s Aims, out now.

Read Chapter 1 free on Elgaronline.

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