Judiciary Responsible for Our Morally Ambiguous Society
In case you haven't noticed, our society is awash in moral ambiguity (the inability to tell right from wrong). Here are four examples.
“There’s no place for the state in the bedrooms of the nation,” was a sentence famously uttered by Canadian Prime Minister Pierre Trudeau in 1965 (but first coined by The Globe and Mail newspaper's Martin O'Malley). Trudeau went on to say “What's done in private between adults doesn't concern the Criminal Code.” His intent was supposedly to decriminalize private homosexual acts between consenting adults. However, the consequences were far more widespread. Uttered by a Prime Minister who was at the time admired, this implied the acceptance of many interpretations. First, did it condone prostitution, a problem with which Canadians are still grappling in trying to formulate laws? Second, did it condone rape? Most would suggest that out of moral decency it would not—but then again some would say that moral decency would not condone homosexuality either. Third, did it not also imply that the fruits of private acts in a bedroom were one's own problem and not the state's? If so, then why should the state ever be concerned with abortion—or for that matter pay for abortion?
“What happens in Vegas stays in Vegas.” At the heart of a highly successful 2003 marketing campaign, this statement, often accompanied with a wink and an embarrassed giggle, clearly implies that indeed Sin City is truly that, and anything one wants to do there may be done with impunity. Is that prosecutorial impunity or moral retribution impunity (which is not ours to give), or maybe even both? We can only assume.
Celebrity worship is rampant. Celebrity adoration has been with us since the beginning of recorded history (e.g. the worship or glorification of ancient Egyptian kings, Roman emperors, gladiators, war heroes, etc.). In ancient times such adoration was usually only warranted if the hero or object of the adoration was also a morally upstanding citizen. Today's version operates in a complete moral vacuum. Vapid movie stars, Internet celebrities famous only for their number of likes, drug-addled rock stars and a host of others have become the source of all wisdom. Unfortunately in many cases, that has included moral wisdom. What they do has become automatically acceptable by their followers. Leaving a trail of broken relationships, addiction problems, image obsession, and self-serving lifestyles, are they really the moral gurus we should be emulating?
Judicial decisions since the 1960s era have followed the path of condoning immorality through the widespread adoption of jurisprudence principles based on secular humanist values. These in turn, thanks to the unwarranted respect paid to judges, have aggravated moral confusion in the populace.
How did we get here and what has caused this morally ambiguous situation? One could easily lay blame on politicians sowing the seeds of discontent, on society's fixation with celebrity, on parents not doing their jobs of instructing their children in the tenets of a moral life, on churches not keeping engaged enough, on schools, on so many things. I believe the answer is very straightforward. As in my last point above, I lay the blame squarely on the judiciary in the countries of the western world (most notably Europe, the USA, and Canada).
Let me explain why. It involves a rather winding road through legal history.
Prior to the Reformation of the 16th century, there was only one gold standard of morality in the western world: the church and its Judaeo-Christian belief system. Ironically it was the Catholic Church's canon law, mostly formulated in the Late Middle Ages, that became the entire foundation of western law tradition.
At the time of the Reformation, Martin Luther’s doctrine of the two kingdoms marked the beginning of the modern concept of separation of church and state. This was both a philosophical and jurisprudential principle and paralleled the philosophy of secularism. OK, you think, maybe that is not a bad thing. And it wasn't for the first two hundred years when the concept of natural law prevailed in legal decisions, thanks to famous jurists like Sir Edward Coke and Sir Matthew Hale. Natural law was based on the belief that all humans possess a God-given nature (human nature) that enables them to understand right from wrong. Historically, natural law referred to the use of reason to analyze human nature in order to in turn deducebinding rules of moral behaviour from nature's or God's creation of reality and mankind. In the 18th and 19thcenturies natural law factored prominently in the creation of such documents as the Declaration of Independence in the USA.
There was one small problem with using human nature as a basis for law without having the church to back it up—concupiscence. Concupiscence is our human propensity to sin. It generally involves a strong desire for sex, power, and money. In terms of sex it can include fornication, masturbation, homosexual acts, and other acts we might use to fulfil our desires.
About the same time—18th and 19th centuries—during the Enlightenment, based on earlier pioneering work by Thomas Hobbes, the concept of legal positivism was born. It was a concept that very conveniently but subtly laid the foundation for decriminalizing acts of concupiscence. Among other things, it contended that laws were commands of human beings and that there was no necessary connection between law and morality. It was in direct opposition to natural law. It was the start of the struggle that jurisprudence has had over the past two hundred or so years—but especially recently—in making judicial decisions in a great many cases involving morality, among them abortion, euthanasia, homosexual unions, and prostitution. In my opinion, this struggle has been at the root of the moral ambiguity and the deep political divisions that we see in our present society.
The struggle has been compounded by another term that entered the legal lexicon in the same period. This term was natural rights. Natural rights stemmed from natural law and were first defined as being inalienable (also unalienable) or universal. In other words, they were given to every person by God and were not dependent on the laws or customs of any particular culture or government. Among others, they included—and still do—life, liberty, and property (or alternately the pursuit of happiness). They have formed the basis of several national Charters of Rights.
It's easy to get confused between natural law and natural rights. To distinguish between them, law professor Randy Barnett explains, “Unlike a natural law approach to ethics, natural rights do not proscribe how rights-holders ought to act towards others. Rather they describe how others ought to act towards rights-holders.”Here is a simple example. Natural law instinctively tells us we should not kill other human beings. Natural rights tell us that we cannot be punished for such a crime without first having a fair trial. In other words, they determine how the state, if you will, must act towards those who contravene natural law.
The problem appears to be one of moral relativism. Jurisprudence has, for the last fifty or so years, been divided into two camps: those who subscribe to the theory of natural law as the basis for decisions and those who subscribe to the theory of legal positivism. What moral relativism does is complicate issues even further because it says that everybody's morals are different and that we must tolerate them. Moral relativists and legal positivists are in the same camp. They basically believe that there is no absolute, objective standard for morals, nor should there be.
Let's compare the two competing moral views (natural law and legal positivism) and how the judiciary may make a decision depending on which camp they are in. On the issue of abortion, proponents of natural law argue that by our human nature it is morally wrong to kill another human being. The foetus is a human being. Therefore it is illegal to have an abortion. Proponents of legal positivism argue that: there is no connection between the law and morality; the foetus has not been proven to be a human being—even though it has; and therefore the law breaches the “legal right” of the woman to security (or privacy) of the person. This is indeed what happened in the famous court case of Roe v Wade in the USA in which abortion essentially became a woman's constitutional right. This was because of their constitution's Ninth Amendment which unbelievably argues that just because a right is not enshrined in their constitution does not mean that citizens do not possess it. Similar decisions have been made in respect of both euthanasia and homosexual rights in Canada, the USA, and other western countries, and my same comment, that this has led to moral ambiguity, still holds. Perhaps the most distressing outcome of the decisions is the knowledge that the judiciary—at least those members holding the legal positivist view—admittedly follow the current and most outspoken leanings of society, often to serve political goals.
These decisions are at the heart of what moral relativism is. They exchange an absolute moral standard (natural law) for a relative moral standard (legal positivism) and promote an entirely selfish lifestyle. They invite us as humans to look inward rather than outward, to seek personal good instead of the greater good. They are clearly a step in the wrong direction and move against our human desire—if it may be called that—to live harmoniously with each other. They move away from the good intentions of the founding fathers of the USA, and of many other countries including my own, Canada. In short, I believe they represent the beginning of a downward spiral that will eventually end in a complete culture of death.
Others think the same. Harold Berman, in a well-argued paper from as long ago as 1983, recognized that the western legal tradition had broken down and that law itself was in crisis. So what can be done to correct this? In the US, the State Department believes that a thorough re-examination is needed of how recent court decisions have veered away from the unalienable rights concept found in the 1948 United Nations Universal Declaration of Human Rights. They have thus created a Commission on Unalienable Rights that will provide “an informed review of the role of human rights in American foreign policy.” It has already met with resistance so any future attempts to ”undo” previous decisions based on legal positivism will surely not be easy.
Berman believes that ultimately the future “involves new relationships between the West and other civilizations, other traditions.” I would agree. Something innovative is required, but I do not think it will be a political initiative; in fact it must not be. I think it has to come from two fronts, both religious. The one front is a grassroots pressure from all religions, and the second is pressure from religious leaders of all faiths coming together, with both fronts aimed at achieving the same goal: to frame new moral guidelines for jurisprudence that are free from political influence, but this time an international jurisprudence. Is this an impossible task? We will never know unless we try.
 CBC (1967). Trudeau: ‘There’s no place for the state in the bedrooms of the nation’. CBC Digital Archives. Retrieved September 26, 2019, from https://www.cbc.ca/archives/entry/omnibus-bill-theres-no-place-for-the-state-in-the-bedrooms-of-the-nation.
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 Berman, H. (1983). Religious Foundations of Law in the West: An Historical Perspective. Journal of Law and Religion, 1(1), 3-43. doi:10.2307/1051071
 Oprysko, C. (2019, July 8). Mike Pompeo unveils panel to examine 'unalienable rights'. Politico. Retrieved October 7, 2019, from https://www.politico.com/story/2019/07/08/pompeo-panel-unalienable-rights-1400023.