Question

Do you think law is neutral? Why or why not? when it comes to racial discrimination.

Answer 1

Among many other issues, the Law regulates abortion, euthanasia, the availability or otherwise of capital punishment for criminal offences, prostitution, and pornography. – all issues on which individuals take a moral stance. Yet the Law is often argued to be morally neutral. Positivist lawyers such as H.L.A. Hart maintain that there is ‘no necessary connection between law and morals’, a position disputed by natural lawyers who insist that some external factors do influence the law, and that since the law is by nature coercive, it is desirable that it have some basis in morality.Discussions around these theoretical issues may often be perceived to be arcane, grounded in pure theory and of little relevance to the true operation of the law. As Griffith said of the English constitution; ‘the constitution is what happens…. if it works, it’s constitutional.’ The proliferation of primary and secondary legislation seems to indicate that the law is dealing with problems with its operation by increasing its reach; so much of what the law appears to do seems to be ‘stop-gap’ measures rather than considered revisions based on a thorough understanding of the theoretical debates. If the legislators do not consider them, how can such arguments be of relevance to us?

My answer would be that as our understanding of law and of social processes deepens, we begin to see that, underlying our supposedly neutral legal systems and precepts is a received wisdom and a morality which is all the more pervasive for its pretended neutrality. A field of study which has contributed immeasurably to our understanding of critical legal theory is that of feminist jurisprudence. Theorists who, in seeking to discover why the law operates as it does, deconstruct it as far as possible and find the myths understanding some of the most lauded principles of disinterested, neutral law (such as that very visible character, the reasonable man) have enabled us to see the hidden mechanisms which betray the gendered operation of the law and which can create real pitfalls in seeking to regulate morality through law. Such analyses have implications for the application of the law in all areas and for all spheres of interest – for example, legal theorists interested in the application of the law to race and disability, sexuality and religion have all benefited from feminist theories of law.

This essay will seek to examine the contention that ‘it is impossible for the law to be morally neutral’ from a feminist legal standpoint. Since a complete discussion of the law in this respect would be an immense undertaking and beyond the scope of this piece, I shall be considering the question with specific reference to the debate around the regulation of pornography. Of particular interest in this area is the fascinating debate between H.L.A. Hart and Sir Patrick Devlin sparked by the publication of the Wolfenden Report on Homosexual Offences and Prostitution. Their analyses of the desirability of regulating morality are a vital addition to any consideration of this question and will form a large part of my enquiry.blanket ban of pornography or of the sex industry as a whole. Rather, I seek to establish that the harm principle, which Mill expressed and Hart approved, is not as morally neutral as it appears but, by its operation, reinforces almost Victorian moral assumptions about women’s behaviour. While I cannot agree with Devlin’s conservative and religiously inspired stance, I can see that his wider view on the social cost of such activity is one which bears reconsideration. We need to set aside established principles for a moment and try to think of new ways to look at the notion of ‘harm’, and perhaps more crucially, the notion of ‘victim’. While I cannot aspire, in this essay, to create a truly morally neutral theory of law, perhaps these considerations should inform the efforts of more gifted scholars to do so.