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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.

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April 10, 2008 - Posted by | Law | , , , , , , , ,

7 Comments »

  1. Fascinating. Where can I find Andrew Phang J.A.’s article? Is a recent one?

    Comment by Fascinated | April 11, 2008 | Reply

  2. […] Discourse – Used Brains For Sale: Law, Morality and Religion – Feed Me To The Fish: Country in trouble? – Desparatebeep: Founding Fathers – Diary of A […]

    Pingback by Daily SG: 11 Apr 2008 « The Singapore Daily | April 11, 2008 | Reply

  3. your idea of law separated from morality best exemplified in out of this world talents paying themselves millions by talking to themselves or among them.

    Comment by lalo | April 11, 2008 | Reply

  4. The article is – Andrew Phang, “Security of Contract and the Pursuit of Fairness”. (2000) 16 Journal of Contract Law 158

    Comment by pleinelune | April 12, 2008 | Reply

  5. Natural law is not premised on christianity! It merely advances the proposition that “law” is based on a universally right standard, and unjust law is not law. Asserting that chritian values constitute “what the law should be” is merely a misrepresentation of natural law. Perhaps the classical theorists like Aquinas advanced such a proposition. But without drawing a distinction between “christian values” and an “objectively right standard’, natural law theory would not be able to be meaningfully argued today.

    Comment by Sumerian | April 13, 2008 | Reply

  6. Of course it is not… I never said it was. We are talking specifically about English law here – natural law theory is just that, a theory, without concerning themselves with the substantive morality of the system. When you actually apply it to a legal system though, you need to start thinking about the substantive morality that goes into the system, and for the most part, English law has been influenced by Christianity, which was the premise that we were arguing on.

    Anyway my concern in this article is looking at the natural law perspective for a while, notwithstanding I am a legal positivist. If we are indeed to follow a higher law, and if this law comes from religion – my question is whether it is possible to explore other sources of morality besides Christianity.

    Comment by pleinelune | April 13, 2008 | Reply

  7. I’ve always found the Singaporean academic take on the positivism / natural law divide slightly puzzling. It seems to me there is a critique of positivism which could be described as realist but also has a relationship with natural law, which is that many of the features of what we recognise as law or of legal quality embody a particular moral stance on the world.

    The danger with the positivist position imho is that it tends to reify particular kinds of institutions (e.g. “plain readings” or whatever) as being “just” “neutrally” “objectively” legal when they are no such thing – they embody particular ways of approaching governance and dispute resolution that can be contrasted to other ways. You could for instance posit a society of people who had no use for law as understand it but instead dealt with everything via mediation and appeals to relationships – they would have different values from those that we understand to govern our legal system, that the mechanical system itself would enact.

    Sorry if this seems irrelevant, I think we get to the same point because at this stage I would refer to the end of your post and say from a pragmatist point of view we would examine our desired society in light of the various value systems that seem to go into the existing one, and try to craft an alternative that we can live with that simply – as a matter of actual fact, in social and political reality – appeals better to other people.

    It’s not very satisfying from a legal-philosophical point of view but I think there is a danger in according too much weight to that. Why should we expect our ethical positions as a society to reflect anything other than the compromises we hammer out, after all? (Obviously I realise from an individual point of view that isn’t guidance…)

    Comment by J | April 15, 2008 | Reply


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