It is often suggested that obedience to the law is a virtue and by implication that respect for the law is a requirement of morality. But is this necessarily the case? Although this might at first might appear obvious, I would suggest the issue turns out on closer inspection not to be so at all. In the inherited concept of Common Law in the UK, what is required or enforced in law corresponds to established practice in society. So there is a natural coincidence between the requirements of legality and of morality. No problem there.
However, many laws on the statute book were not a consequence of the way ordinary people chose to live their lives or of publicly accepted standards they were expected by their peers to live up to, but rather represented an imposition by the powerful upon the weak. Examples of this were the iniquitous Corn Laws, the permitting of profiteering through the trading of slaves and the denial of full legal personality to women. It took vigorous campaigning over many years for the law to be changed in these areas. Few if any these days would suggest that the people who challenged these laws and sought to have them struck down or modified were not acting virtuously and in accordance with the requirements of morality (although aspects of the former have been reintroduced in the guise of EU agricultural policy and we are at risk of backsliding on the latter as the pressure grows to accept Sharia Law principles in the UK). Of course, that did not prevent those who did campaign against these injustices being characterised by many of their peers as agitators and subversives.
Fast forward to the present and we have what many would see as the 21st century equivalent: the Equality Acts 2006 and 2010 which enshrine rules preventing discrimination in a wide range of areas on the basis of a considerable number of properties such as race, age, belief, sex, etc. Ostensibly this can be viewed as a continuation of the same process of eliminating injustice from society and giving greater rights and protection to the oppressed. But does this characterisation stand up to scrutiny?
In terms of the intent it is hard to argue against such laws, whether from a moral or other perspective. But there is one clear difference here from the cases I mentioned above from the 19th and early 20th centuries: it was very clear in those earlier cases which injustices were being corrected in what situations, whether that be the principle that no human being can be the property of another or that the right to inherit wealth or to vote should not be denied one on the basis of being female. The more problematic aspect of the Equality Acts is hinted at in their name: that intrinsic to the legislation is the idea that everyone is “equal” and should be treated as such in society.
Whereas it is a rather binary thing whether women have voting rights or not, it is not so clear how a society can by legislation be transformed from one where people are not equal (and if they were, what need would there be for legislation?), to one where they are. In the first case, the act of discrimination or denial of rights is clearly defined and its violation easily identifiable: specifically, if or when a women is prevented from casting a vote at a public election. The unequivocal success of the older acts is evidenced in the number of people who have been prosecuted for violations in recent years (none) and, in the case of slavery, the fact no significant new legislation was considered necessary until the enactment of the Modern Slavery Act in 2015, nearly two hundred years later.
So, we might ask, does society today embody “equality” as envisaged by the acts? Few would suggest that it does. But, if it does not, who should be prosecuted and/or what remedial action should be taken? Here we start seeing the problematic of the idea of legislating for “equality”. For one, before the ink was even dry on the 2006 act, new protected characteristics were being added. This process was further extended by the 2010 act followed by an amending act in 2011 and another in 2017, which among other things imposed a duty on public authorities to publish data showing compliance with all provisions and indeed of actions they are taking to enhance compliance. This has given rise to a controversy over the the NHS’s recent edict that doctors should henceforth interrogate all patients about their sexual preferences and record responses in their medical history. It is argued that this is intrusive and an infringement of rights of privacy. But the NHS administration in acting thus is arguably only seeking to comply with the duties imposed by the Equality Acts. Are we as a consequence of all this nearer to an agreed state of equality or is the targeted end-state receding ever further into the distance? Who can say (especially since the NHS is yet to prepare and publish their data; and good luck to the people whose job it is to interpret it!)?
Then we have to start looking at the number of court cases which have been and continue to be engendered by such legislation, many of which have gone all the way up to the European Court of Human Rights, often visiting the front pages of the tabloids several times along the way. Numerous alleged violations have been successfully prosecuted. But equally, in many other cases individuals have lost jobs, important privileges and personal reputations without any court case occurring, often to protect the company employing them after allegations have been made, and frequently on the basis of actions taken or comments made entirely outside of any work context. Such may or may not have been the intention of those drafting the legislation, but it has been the result.
The challenging question we then have to ask ourselves in relation not only to Equality law but all law is: does the law as it stands conform to our moral perspective? Should we celebrate each time someone falls foul of its provisions and believe that through this our society has become just a bit more equal, and therefore better? Or is there not need for us to stand back and scrutinise the legislation, whatever its intent, for the outcomes that flow therefrom, and make an independent judgement based not only on the intent but also on the effect? And is there not a case also to challenge even whether the intent is coherently enough defined and/or sufficiently attainable by the proposed legislative means to merit our moral consent in the first place?
But to do this requires an independent moral perspective; and clearly that cannot happen if we conflate legality with morality. Ultimately the latter must be defined by what people, society, believe to be right and wrong. There must be flexibility here as, self-evidently, not everyone has the same perspective. But changing the law to define something to be illegal, does not make it wrong in people’s minds. And while it may force people to behave as if it were, there is no guarantee that people’s perspective will change over time.
The difference, I believe, with the big issues from the past which I discussed previously is that there were independent compelling arguments which people in their conscience found difficult to resist (even though they found themselves harmed economically) and which eventually won the day. The problem with legislation which is not enforcing a binary distinction but rather initiating a process towards an (often ill-defined) end state, is that it is much more difficult, impossible even, to adduce compelling moral arguments in its support.
Also, at the heart of politics has always been a tension between equality (emphasised on the left) and freedom (emphasised on the right), which reflects a difference in outlook which is ultimately personal. To favour one over the other in legislation is to politicise the moral realm and potentially to invade the sacred space of individual conscience, which is of course itself protected as a human right.
The reason the situation is and will remain problematic is that moral positions are not ultimately susceptible to rational argumentation, however much we may wish them to be so. They emerge from our experience of living in communities together and are a function not only of our discourses in the present but also of the past which has shaped us and our community and our future aspirations, individual and collective. They are as a consequence always to some degree in flux. As David Hume famously summarised the matter: “The rules of morality are not the conclusions of our reason.”
That being the case, we should not expect that in complex matters such as how “equal” and/or “free” individuals should be in the ideal form of society, there is a right answer we can ever agree on. Nor should we believe that the passing of this or that law through Parliament can resolve a moral issue any more definitively than we believe that carving laws into tablets of stone can make them morally binding for all time.
