Law

In general, law is that a rule of being or of conduct, established by an authority able to enforce its will; a controlling regulation; the mode or order according to which an agent or a power acts.

The first and most basic function of law is to defend us from evil – that is, those who would seek to harm us for no good reason. This function of law underlies 20th century developments in International Law such as the Nuremberg Trials and the creation of the International Criminal Court.

Law is not just concerned with bringing evil people to account for their actions. A community made up of people who bear no ill-will to anyone else and are simply concerned to pursue their own self-interest needs law because there are situations where if everyone pursues their own self-interest, everyone will be worse off than they would have been if they acted differently. (This is the reverse of the ‘invisible hand’ phenomenon where if everyone pursues their own self-interest, everyone in the community is made better off, as if everyone’s actions were guided by an ‘invisible hand’ to achieve that end.) So a community of self-interested actors needs law: (i) to solve ‘Prisoner’s dilemma’ situations; (ii) to distribute into private hands property that would otherwise be exploited by everyone, thereby avoiding a ‘tragedy of the commons’ situation arising; (iii) to prevent people acting on their natural desire to extract ‘an eye for an eye’ in revenge for actual or perceived wrongs that they have suffered at other people’s hands.

As every family knows, in any community there will always be disputes over who should have what of a limited number of resources. Law is needed to resolve these disputes, as exemplified by the famous story of the Judgment of Solomon.

It was thought even from classical times that law performed a fourth function – that of encouraging and helping people to do the right thing. For example, Aristotle (384 BC – 322 BC) argued that people needed the discipline of law to habituate them into doing the right thing, from which standpoint they could then appreciate why doing the right thing was the right thing to do. Up until the 20th century, this view of law was accepted by law makers, with the result that the UK legal system contained a large number of ‘morals laws’ – that is, laws that were designed purely and simply to stop people acting immorally, according to the lights of Christian teaching on what counted as immoral behaviour. However, in the 20th century, the ‘harm principle’ propounded by John Stuart Mill in his book ‘On Liberty’, according to which the law should not sanction people for acting immorally unless their conduct involved some harm to others, gained more and more popularity, and resulted in the abolition of large numbers of ‘morals laws’. These trends triggered what is now known as the Hart-Devlin debate over the extent to which it is legitimate for the law to enforce morality. Lord Devlin – at the time, a judge in the House of Lords, the highest court in the land – argued that law should enforce morality so as to preserve the cohesiveness of society. Professor H.L.A. Hart – at the time, the most famous legal philosopher in the world – based his position squarely on Mill’s harm principle, though subject to the caveats that the law might legitimately prevent someone acting immorally if doing so involved harm to himself or would cause offence to others. Hart’s views are set out in his widely read book ‘Law, Liberty and Morality’. Hart is thought to have won the debate – but his concessions that it might be legitimate to make it illegal for someone to engage in immoral behaviour that will (i) harm himself or (ii) offend others, seem to make little sense. The same point can be made about those ‘morals laws’ that survived the 20th century cull: if law does not have a role to play in encouraging us to do the right thing, why is it illegal to have sex in public, or to have sex with animals, or to dig up dead bodies, or to take hallucinogenic drugs, or to help someone kill themselves?