Ours is an increasing global era. We live in what many would call a multi-cultural society, a society based upon many different religions, ethnicity and cultures. The law attempts to bring together these differences to reflect a common morality. In short the law tries to attain social cohesion by enacting laws to reflect what society believes. Is this possible in today's society? With international events playing heavily on lawmakers minds can the law truly be impartial and treat everybody as having the same moral rights? One mans moral standard may be another mans wrong. It is this problem that law makers face.
Can a balance be struck? Do any of today's legal theories back this notion of a common morality but more importantly is it even possible for the law to effectively reflect a common morality within society as we see it today? This problem is perhaps best illustrated between the East and the West where there is a deep disparity about what "morality" consists of. The disparity is so serious that it seems to deserve the name of paradigm difference. From the perspective of one paradigm, the other may seem to be abnormal or pre-normal. Though they are both talking about morality, they refer to different concepts and facts.
The two discourses are almost incommensurably different. It's this problem that the law seeks sometimes in vain to rectify. Whilst the search for a common morality in law extends back to ancient times most notably Plato and his views laid down in the Republic and the Laws the broad argument for the basis of a common morality can be found ironically in both the naturalist and positivist movements. Under classical naturalism it is said that the Law is derived directly from morals. If the law is therefore derived from morals then surely once enacted it must reflect the common morality of society?
If Law has no moral commitment then law ceases to be part of society. Consequently if we take the view that neither view is totally correct then ironically the positivist argument supports this. Positivism states that the law should be followed word for word with morality taken out of the question. If however we take the view that law cannot exist without morals then surely positivism in saying that everyone must obey the law, positivism thus states that a common morality exists in that everybody must be treated equal, an ideal integral to the functioning of modern day democracy and politics.
H. L. A Hart is one of the most distinguished legal philosophers of our time. Although he was a positivist by nature Hart accepted the view that morals had to play a role in law making and how society views the law. He agrees that the law implies that certain behavior is no longer acceptable. His theory of primary and secondary rules is founded upon a moral basis in that they reflect a common standard felt throughout society as a whole. Primary rules exist as rules of obligation and are frequently called as moral duties, where there is little separation between law and morals.
It is upon these rules that secondary rules are based on. Secondary rules are there to decide what should be a primary rule and who can adjudicate upon those rules. Only when a union between primary and secondary rules does a legal system emerge. With secondary rules reflecting the basic moral duties (primary rules) it can be said that the law must reflect a common morality. If lawmakers make law based upon social standards then surely the law must reflect the morals of society as a whole.
Whilst there may be differences in opinion between different groups each person has a set of core moral values that rarely differs from person to person. All races for example share the belief that we have the right to life and the law does its best to uphold these values. "What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard"1 It is this reason as to why many believe the previous positivist argument to be absurd. How could they (positivists) enforce the law under principles, which neither the judges involved or the public believed in?
This proves that even the positivist movement has begun to accept the reality that the law and morals are directly linked and that without morals law ceases to be effective within society. It's on this note that I bring to light Hans Kelsen view on the law and morality. Kelsen is of similar view to that of Hart in that he also believed in a union of primary and secondary norms. There is in society what many would see as cultural or moral norms. Whilst Kelsen does not implicitly state this one can use his theory to back up the presence of a common morality within the law.
Kelsens theory revolves around a hierarchy of norms. His model of a legal system is based on each norm being validated from a superior source until a point of origin is reached, the Grundnorm. The Grundnorm is the origin of any chain of legal norms; the apex of all other norms and it's upon this theory that the idea of a common morality rests. Kelsen states that the Grundnorm being the highest legal norm regulates and justifies all other norms. Following this theory through you could come to the conclusion that the constitution of a nation must be the Grundnorm.
If taken a step further, where does the constitution gain its power? A constitution derives its power from the people, were the people to reject a constitution it would have no validity. Thus it can be said that if power is ultimately derived from the people, surely the norms and therefore law must reflect the will and morals of society? Potential problems arise under this argument when you take into account nations such as the United Kingdom who have no written constitution but politicians in Parliament lay down law. Despite this the same principle can be used.
It is the public at large who vote politicians into parliament and as such their power is derived once again from the people. If Parliament does something that is against public morals they are voted out at the next general election. Thus once again wee see that within the UK at least the law must reflect the common morality of the people to a certain extent or face potential rejection. Despite these theories holding certain weight towards a common morality within the law there are notable problems arising within legal systems that actively prevent a common morality from ever actually taking hold within the law.