Why the law is our most important moral code

First published by Globe Law and Business: Modern Legal Practice - January 2018

Philip Wood on 17/10/18

If we were speaking from the point of view of common sense, we could say without any anxious questioning that we on the planet have a duty to survive and that in order to survive we need moral rules, and that the legal systems of the world in all their aspects are by far the biggest, the oldest and the most efficient code of morality that we have. This is so notwithstanding all of their faults. You could also say that the above statements are a platitude. 

Yet my experience is that large numbers of people do not go along with these propositions and greet them with incredulity in the same way that, for example, Galileo’s explanation that the earth revolves around the sun, not the other way around, was first greeted with astonishment, outrage and incredulity. However, later, just about everybody said it was obvious and they knew it all along.

Accordingly, in these circumstances it seems necessary to explore why I make these assertions so I will explain the underlying rationale.

First, let us take the duty to survive. This is an unprovable philosophical concept, but we can safely assume that most people on earth would have an extremely strong preference in favour of the survival of the human race. They would not want us simply to die out, with even our last cries for help unheard in the dark void, as the extraordinary miracle of intelligent life on the earth is blotted out and lost for ever. It is true that I convert this intense wish to survive into a positive duty. That is because we owe it to those who came before us and those who will come after us, all these past and future generations, to pursue an objective which is the fundamental meaning of life, which is not nihilistic, which is not dark and futile. I am not the first person to say that we have a duty to survive. The physicist Professor Brian Cox said it recently in one of his television programmes and Carl Sagan said it before him.

The second proposition that we need a moral code with effective sanctions in order to survive also seems beyond reasonable doubt. Morality is the principles or rules of conduct, standards or norms governing us and our institutions. Many people think that humans are basically good and that the obvious rational case for moral forbearance would be enough and that all that is needed are customary understandings which do not require coercion but which are enforced by social pressures. They think that this would be enough to sanction wrongful conduct.

The answer is that if most people are not devils, nor are they angels. At one extreme there are a group of people that are devils and a great many more who are beyond social pressures if there were no legal sanctions. If there were no punishment for violence or murder or rape or theft, no come-back at all, there would be some who would abuse the moral code. If you could break any contract without paying compensation, or could damage someone’s interest or tell them lies resulting in loss, then there would be those who would violate their contracts and disregard their duties not to cause injury and to tell the truth.

It is a matter of common knowledge that when, for example, the police are on strike or there is a natural disaster, looting and arson break out. It is also obvious that when the rulers of countries think they can get away with conduct which would not be permitted under the domestic law of a country, many behave atrociously. One only has to add up the number of countries in the world where governments are tyrannical, corrupt and dangerous.

So we can say that, although the world may be able to do without its various philosophies and religions (which I do not necessarily celebrate), it cannot do without its laws. Maybe in the old days when human societies were just villages, small clans, small bands of people numbering only a few hundred at most, you could impose sanctions by social pressures and ostracism, but this is out of the question in modern societies with their huge and anonymous cities. The theory of the innate natural goodness of mankind. announced by Jean-Jacques Rousseau – that humans are noble savages, corrupted by social institutions – is an illusion. We have not been able to live without police forces or the military or enforcing courts even at the most minimal level.

The next part of the assertion is that legal systems are in all their aspects the most fundamental source of morality.

By law, I mean not just the law of murder or family or constitutional democracy, I mean the law in all its aspects. The law includes the law relating to money, banks and corporations, the law relating to contracts and capital markets, the law relating to bankruptcy and taxation, the gigantic fields of regulation, even the law relating to securities and foreign exchange settlement systems and the law relating to netting via central counterparties in settlement systems. Without these things, there would be nothing on the plate for breakfast and we would revert to being desperate hunter-gatherers fighting for our scraps of territory to eke out some harsh survival.

Moreover, all these fields of law, sometimes regarded as utilitarian or mechanical, are drenched and saturated with moral choices which have to be made, sometimes wrong choices. Thus, taxation law in many countries is a form of enforced charity, not just a method for pooling resources to promote defence or law and order or education. Taxes often redistribute from the rich to the poor and in most countries the redistribution can easily amount to more than half of the tax take. That is fundamentally a moral decision, a decision about the extent of charity.

Bankruptcy is the most ruthless of all the private disciplines because it obliges the law to choose between those who sink and drown and those who are rescued and survive. The key doctrine of bankruptcy is the ladder of priorities so that those at the top might gasp for enough oxygen to escape while those at the bottom are lost. This ladder is highly controversial and differs vastly between legal systems. Thus the common law systems based on English law tend to prioritise three super-super-priority creditors, namely creditors with a set-off, creditors with universal corporate security interest and creditors claiming under a trust. These priorities are not found in the other great families of law to anything like the same extent. Again, the ladder is based on notions of justice according to the view of the jurisdiction and are in conflict with notions of complete equality.

Similarly, it is astonishing how free the law of contract is, but how dictatorial and mandatory is the law of bankruptcy. Freedom and despotism are moral ideologies.

There is little need to prove that the law is the most comprehensive of all our moral disciplines. It is true that religions also have moral codes but by comparison the religious codes are much smaller in their scope and do not have anything like the detail, even on familiar subjects such as murder. The Christian Gospels had very little to say about the law. The Koran was written down more than 100 years after the great codification of Justinian around AD 535 and is easy to show that the legal rules in the Koran are tiny compared with those in that enormous codification of classical Roman law.

There is reason to believe that formal written secular codes are much older than those of religions. For example, the code of Hammurabi, king of Babylon, dated about 1732 BC, has 282 articles on all kinds of subjects and is much more comprehensive than the codes produced by Moses around 500 years later.

It is true that the law does not cover everything, for example the law does not sanction your inner thoughts of revenge or hatred, whereas other religious codes and philosophies may do so. It does not compel courage or hard work. This is because the law does not intrude on the private domain in this way, lest we all end up in jail. Where the law restricts, it does so in order to liberate, or that should be the rule.

It is also true that the above claims for the predominance of law are not reflected in the works of economists or political scientists or thinkers about the meaning of life or many of the other disciplines, including science. The explanation is probably that these disciplines hardly know anything about the law at all except at the most basic level. They are sometimes (justifiably) critical of some laws, as I am. Economists, for example, seem rarely to include concepts of justice or morality in their metrics so they just leave them out. This is subject to some glowing exceptions of course.

As for jurisprudence, one feels a sense of despair, again subject to glowing exceptions. Naturally, few would now read Aristotle or Plato or Cicero for their views about the law, or even St Augustine or St Thomas Aquinas, just in the same way as you would not read Newton on gravity and you would not read Faraday on electricity. One can find valuable comments in Hume, Locke and Bentham but none of them have worked through to the logical conclusion outlined above. Kant is quite primitive and at basecamp in his simplifications. Some recent philosophers of law have, as with much other philosophy, become tied down and entangled in analytical abstraction and definitions (Rawls, Dworkin and even the great Hart) and hardly speak at all of the towering mountains of law which I refer to above. The school led by Posner is almost completely utilitarian.

If I am right about what I say in the first paragraph of this opinion, then jurisprudence is not dead, nor is philosophy. Indeed, we may have the most significant philosophical statement for a long time, a new and staggering proposition staring us in the face.
Philip Wood is head of Allen & Overy Global Law Intelligence Unit; visiting professor in international financial law at Oxford University; Yorke distinguished visiting fellow at Cambridge University; and visiting professor at Queen Mary University, London. He is the author of The Fall of the Priests and the Rise of the Lawyers (Bloomsbury/Hart 2016).

‘Why the law is our most important moral code’ by Philip Wood QC is taken from the fourth issue of the new Modern Legal Practice, published by Globe Law and Business, www.globelawandbusiness.com/journals/modern-legalpractice
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