Law, Morality and Religion
My nervous system suffered a big shock yesterday – it turns out my darling sweetie honey baby pie Zixian is a Natural Law Theorist. (To those who don’t under legalspeak, that means she believes there law and morality are inseparable, and that there is a higher, divinely ordained law). Me? I am firmly in the camp of Legal Positivism (law and morality are separate), or rather Critical Legal Theory (law is indeterminate). Really, how do I go on after this.. *heart breaks into a million pieces* Okay, not really.
The extra-curricular conversation occured after dinner in a coffeeshop, sparked off by a discussion of Andrew Phang’s article on contract law (Andrew Phang, “Security of Contract and the Pursuit of Fairness” (2000) 16 Journal of Contract Law 158), where he seemingly espoused that Christian values were the foundation for our law. It was truly a debate to be witnessed, me against Zixian, and my fellow Legal Positivist Jessica against Sean. Prof Ramraj, Ho Hock Lai, and Tan Seow Hon would all be so proud of us.
At least, we weren’t talking about sex and LAWR. (That particular conversation was prior to this debate)
First of all, the idea the law and morality are the same is an idealistic one to me, because it assumes that somehow, human beings have an internal sense of what is right and wrong, and a sense of higher morality.
But how is this possible, when our environment is what really shapes our morality and values? How do you decide what is the correct standard of morality? Zixian started arguing that since Christianity was the cornerstone of the development of English law, and it has worked for so long, and since certain values were shared, it was completely acceptable to use Christianity as the basis, the standard of morality, as THE standard of civilisation.
Of course you can’t say something like to a secularist like me.
Just because something has been based on it, and has been working, doesn’t mean it is the correct standard. While I accept that Christian Anglo-Saxon values have been shaping the legal thought for centuries, and thanks to colonisation, these values have been spread to other countries and formed the foundation of their systems as well, that would be a descriptive theory of how the law IS. It is not a normative endorsement of how the law SHOULD be, because I insist on being respectful to all religions and taking their views into account. Or simply not taking religion into account at all, completely.
While “fairness” is a good value, as advocated by Andrew Phang JA, just because this origin is Christian and the value is good, doesn’t mean one has to take the rest of their cues from Judeo-Christian notions. If there comes a time where there is a conflict on what our actual values are, we need to consider human values, not Christian values. I am not saying Christian values are bad, or aren’t good enough, it might actually be that they are. But then who is the judge of what is a “good” value? If we are talking practically, it is the legislators, who decide what values our law is to encompass.
Why wouldn’t Islamic, Hindu or Buddhist values work in our system? The thought is foreign to most people – someone raised in the existing system and is used to it, any deviation from the existing system is considered abhorrent, something to be ignored, a further evidence that the other side will not work. Differences between the value system accentuate their belief in their own system, because only similarities will lend credence to the other value systems. If I might borrow a concept from the radical feminist camp (McKinnon’s writings), the worth of a particular system is measured in relation to how close it is to the existing system, the same way the worth of a woman is measured in relation to how close she is to the standard of a man.
In a climate like that, how do you push forward other standards and prove that they are worthy, when you are measuring the worth by similarity to the existing standard? It is really a chicken-and-egg-situation, and an almost Herculean task, to undo centuries of legal thought and traditions.