The law versus religious belief

One of my wonderfully erudite correspondents passed along: Ian McEwan: the law versus religious belief, The Guardian (September 5, 2014). McEwan is a highly regarded British novelist. His writing is stunning both for the clarity and beauty of it. In this essay, McEwan examines the difference between law and religion, and the similarities between novelists and judges.

In particular, McEwan quotes British Appeals Court Judge Sir Alan Ward in case where the court authorized the killing of one infant in order to save another: “”This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply, the relevant principles of law to the situation before us – a situation which is unique.” In the context of my earlier post about factual innocence and the death penalty, McEwan’s gentle but penetrating piece struck a chord with me. Give it a read.



10 responses

  1. The law versus religion controversy, if there was one, involved displacing the parental decision, since this was a classic double effect case, the twin who died was not directly killed and had no chance of survival, the other twin was the life support system for both and the strain was killing the healthy twin. The remark about law and morals is standard talk in English opinions, though Lord Radcliffe suggested that was pius talk for the lay folks, since in cases like this the moral issues are merely disguised by the citations. I doubt that the separation of law and morals to the degree the language suggests is a usually an assertion of the utilitarianism Anglo-American lawyers often espouse. Interestingly the parents later said they were unable to make a choice and thanked the judges for making the choice they did not have the strength to make

  2. While the concept of medical triage involves moral and ethical dilemmas, it makes for a poor analogy to executing the innocent for lack of a fail-safe process to overcome the systemic failings of the legal system.

    Science and nature can be harsh and unforgiving, but mankind may not be able to prevent its outcome. The death penalty is an outcome we have complete control over, and yet choose to view it as if it’s a force of nature. Just as we view our beloved process as if it’s beyond our control, a natural mandate that unfortunately veers off course sometimes despite our best plans.

    We may not be able to save both babies, and one will die regardless of our best efforts because we are unable to control the forces of nature. So we make a choice either way, one being to save one child by separating conjoined babies, the other being the choice of doing nothing and waiting for both to die. Both are choices. Both result in death. This is the Trolly Problem .

    The death penalty carries a very different set of choices and concerns, especially the death of an innocent. Should we choose not to execute a person, then no one dies. Should we choose not to execute an innocent person, then we do not elevate our systemic failings above human life.

  3. Direct in tort law terms it was, but Cardinal of Westminster said it was not direct in terms of double effect, and I think most people who use that casuistry would agree. Years since I read case but I recall CT decided not to follow double effect since they would have ordered a direct killing of weaker twin. Two years I taught case most students saw the weaker twin as an aggressor and treated the case as like Judith J Thompson’s famous hypothetical about the violinist.

  4. SHG,

    I wasn’t making a direct analogy. To the extent anyone else thought I was, your comment ably establishes why no so such inference should be drawn.

    I was more interested in the idea that it may be sound jurisprudence to separate religious (moral) values from legal decisions to the extent judges are able to so, especially when they confront cases involving life and death.

    All the best.


  5. Like you, I prefer not to couch preferences in terms of morality, mostly because I recognize that my personal views of right and wrong need not be shared by everyone (or anyone) else. I do, however, consider the ethical implications and take them quite seriously, though it’s unclear to me whether I’m unusual in that regard as well.

    That said, I remain unpersuaded that the question of whether the only thing preventing a judge from putting a known innocent person to death is purely a moral one. Substantive due process, elusive under the best of circumstances, is offended by an outcome that is the antithesis of the core purpose every doctrinal rule of law.

    If the central goal of the criminal justice system is to convict the guilty without convicting an innocent, then it’s failure isn’t a moral one, but a systemic one. We can hide it behind a wealth of procedural rules, but we can’t hide the fact that our system failed to achieve its fundamental doctrinal purpose. And so the question isn’t moral at all, but a failure of the legal system. And if the system fails, then it lacks the legitimacy necessary to justify its outcomes, like death.

    It’s just another legal question, morality be damned.

  6. While Seavey had a famous tort law version, the trolly problem among philosophers was developed by Phillipa Foot in criticism of double effect. Fuller’s cave explorer case is a variant designed to support his view that absolute separation of law and morals is not possible. Given name of blog it is the kind of case Dworkin used against Hart before he invented Hercules. Sorry old lectures are seeping out but no one listens at the old folks home.

  7. As McEwan says, the choices for a judge are often limited to the lesser harm rather than the greater good. It’s more like a failure of the whole human zoo than a failure of the legal system alone.

  8. SHG,

    Regarding my earlier post, in the paragraph preceeding the hypotheticals, I acknowledge uncertainity about what I would do in circumstances falling outside the realm of the hypos. I agree that substantive due process would be the best bet. Although substantive due process arguments are hard to win, if substantive due process as a theory and ground for habeas relief exists, the killing of an innocent person would seem to provide the perfect scenario for application of it. All the best.


  9. Judge, seems to me it’s pretty much a false conflict, this “law versus religious belief” issue. And law might not be exactly the same as morality, but they are close cousins. I can’t see how you or anyone else could think that it’s big help in life or death decisions to cast all moral considerations aside. I also can’t see how the idea that the law has nothing to do with morality isn’t risible when criminal defendants are pronounced “guilty”.

    You’ve been openly pondering the tough ‘issue’ – your description, not mine – of executing an innocent man. If morality has nothing to do with the decision what’s the problem? Greatest good for the greatest number; off with his head; hi honey, I’m home for dinner.

    Just like any other day.

    The fact that you’re troubled by the problem indicates that even you aren’t taking Hobbes, Bentham, et al. very seriously. And you shouldn’t, if you ask me.


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