Law, Morality and the Common Good¹

footnotes: ¹ The 1993 Warburton Lecture, Lincoln’s Inn, London, 16 June 1993.

The Hebrew Bible paints a strange picture of the people of the covenant. The Israelites emerge from its pages as a stiff-necked and backsliding people, often lapsing into idolatry and dissent. A detached reader of the Bible must find himself asking: why did God choose this people from among all others to be His special witnesses? The book of Genesis answers this question at only one point, and the answer is striking. Genesis 18:19 tells us that God said of Abraham: “I have chosen him so that he will instruct his children and his household after him to keep the way of the Lord by doing what is right [tzedek] and just [mishpat].” Tzedek and mishpat are both legal virtues. We might best translate them, respectively, as distributive and procedural justice.

The verse suggests that whatever else Abraham’s children might do or not do, they would respect the ideals of justice and the rule of law. This, the Bible implies, is a transcending virtue, one that may compensate for many shortcomings. And this is surely a cardinal feature of the Hebrew Bible and of the Jewish contribution to civilisation ever since: the belief that a people, a nation and a society are judged by the extent to which justice and the rule of law prevail. Few religions have placed law and its just administration so close to the heart of its concerns.

Throughout the Pentateuch we find repeated injunctions to this end. “Judges and officers shalt thou make thee in all thy gates…and they shall judge the people with righteous judgement…. Justice, justice shalt thou pursue that thou mayest live” (Deuteronomy 16:18–20). Moses, in appointing judges, tells them to “Hear the causes between your brethren, and judge righteously between a man and his brother, and the stranger that is with him. You shall not respect persons in judgement. You shall hear the small and the great alike. You shall not be afraid of the face of any man, for judgement belongs to God” (Deuteronomy 1:16–17).

At the core of the covenant is a magnificent legal code which reaches its most exalted expression in the Ten Commandments communicated by God Himself to the assembled Israelites at Mount Sinai. In the prophetic books the rule of law becomes a momentous and moving vision: “Let justice roll down like a river, and righteousness as a never-ending stream” (Amos 5:24).

Never has this idea lost its power or relevance. For such seems to be the unalterable or at least not yet altered constitution of human nature – that we are prone to conflict. And unless regulated by law, conflict finds its resolution in violence, war, tyranny, inequity, the defence of privilege, the oppression of the powerless, and the substitution of might – economic, political or military – for right. Against all these, the Hebrew Bible offers the alternative of law, a law that treats great and small alike, that owes its ultimate authority to a power beyond all earthly rulers, a law that bears the signature of transcendence.

Although this noble proposition has since become the shared property of human civilisation, Paul Johnson rightly reminds us of its origin:

Certainly the world without the Jews would have been a radically different place. Humanity might eventually have stumbled upon all the Jewish insights. But we cannot be sure. All the great conceptual discoveries of the intellect seem obvious and inescapable once they have been revealed, but it requires a special genius to formulate them for the first time. The Jews had this gift. To them we owe the idea of equality before the law, both divine and human; of the sanctity of life and the dignity of the human person; of the individual conscience and so of personal redemption; of the collective conscience and so of social responsibility; of peace as an abstract ideal and love as the foundation of justice, and many other items which constitute the basic moral furniture of the human mind. Without the Jews it might have been a much emptier place.

The Minimalist Conception of Law Having paid this tribute to law and the Hebrew Bible and the relationship between them, I want to focus on a subject which has been the cause of much debate, not only in our time, but at many other critical junctures in civilisation. I refer to the scope of law and its role in society, to law’s place in the ultimate scheme of things.

I want to contrast two conceptions of law, one exemplified by the Jewish tradition, the other known to it and indeed accepted by it, but not as an ideal. I call them, respectively, the maximalist and minimalist interpretations, and these terms will become clearer as we proceed. Doubtless, no actual legal system conforms to either of these two idealised types, but I present them as contrasts for the sake of clarity. I begin with the system Jews did not adopt for themselves, although they recognised its validity and at times its necessity, namely the minimalist conception of law.

My starting point is the Mishnaic tractate of Avot, known as the “Ethics of the Fathers,” an anthology compiled in the first half of the third century of the Common Era, though its component texts have an earlier origin. The rabbis quoted in Avot took a sceptical view of public life. “Be careful in your dealings with the ruling powers,” said the sages, “for they only befriend a man when it serves their purposes, but they do not stand by him in his hour of need” (Avot 2:5). Nonetheless they recognised the need for government and the rule of law, and they did so in the form of a famous statement. “Rabbi Hanina the deputy High Priest used to say: Pray for the welfare of the government, for were it not that people stood in fear of it, they would swallow one another alive” (Avot 3:2).

On the face of it this is an early anticipation of Thomas Hobbes’ description of society in a state of nature: a war of all against all in which life would be, in his phrase, “nasty, brutish and short.” However, a close examination of the text reveals a peculiar poignancy to Rabbi Hanina’s remarks. A manuscript reading of the Mishnah yields a text in which Rabbi Hanina’s statement appears not in the third but in the first person: not “they” but “we would have swallowed up each other alive.”

To understand the significance of this detail we must recall Rabbi Hanina’s formal office: deputy High Priest. This allows us to date his remark with some precision. Rabbi Hanina lived during the last days of the second Temple, in the second half of the first century ce. He officiated there. He was a senior member of the priesthood. We can now sense the full pathos of his dictum.

Rabbi Hanina lived through the destruction of the second Temple by the Romans, one of the greatest catastrophes to have befallen the Jewish people. It led to nearly nineteen centuries of dispersion, powerlessness and persecution. We know from Josephus, however, that while the Romans were at the gates, within the walls of the beseiged Jerusalem a divided Jewish people was engaged in bitter and self-destructive civil war.

The government of which Rabbi Hanina spoke was not a Jewish government but none other than the Roman power which had desecrated Judaism’s Holy of Holies and destroyed its central religious institutions. Nonetheless, he prayed for its welfare and urged others to do so. For he had seen, within Jerusalem beseiged, the terrifying spectacle of life without law, the war of all against all. Any law is better than no law. Hence the minimalist definition of law as the instrument which prevents us from swallowing each other alive, or as John Stuart Mill was to put it eighteen centuries later: “The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others.”

Mill arrived at this conclusion in a book entitled On Liberty. He believed that the cause of liberty was best served by having as little law as possible, or at least by marking out certain territories as being – as the Wolfenden Committee on Homosexuality put it – “crudely and simply not the law’s business.” But this is not the only or even the most helpful way of reaching the conclusion. Jews, for example, have always cherished liberty since the exodus from slavery in Egypt. Nonetheless, for Judaism freedom is not achieved by restricting the scope of law. It is precisely a life lived within the law, a law that covers all aspects of life.

A more helpful way of understanding the minimalist conception is that it arises in a society in which the concept of a common good, promulgated by the central institutions and educational structures of its culture, has eroded or is beginning to erode. We have seen one way in which this can happen. There were few values held in common by the deputy High Priest Hanina and the Roman government which had destroyed his people’s Temple. There is another way in which it can happen. A society can move to a less collective, more individualistic sense of morality. Such was beginning to be the case in 1859 when Mill wrote his treatise on liberty, and the process has continued unabated to this day.

Under either circumstance, an extensive system of laws can come to seem an unwarrantable intrusion into the lives of individuals, minority groups or subject populations. Law is necessary, but it should be kept to a minimum, defined as the prevention of harm to others. It is an infringement on liberty. Therefore, though there must be law, there should be as little as possible, at any rate in matters where we regard liberty as of the essence, especially those involving moral judgement.

A Maximalist Conception of Law Against this I want to contrast the Judaic view of Jewish law, one that I will call a maximalist conception. I refer here to a set of beliefs with a long and continuous history, originating in the Pentateuch, echoed in other books of the Bible and given consistent expression in the rabbinic literature from the first centuries of the Common Era to today.

This view can be characterised in three propositions. The first is this. Not only does the religion of the Hebrew Bible contain laws which carry the legislative authority of God Himself, but it is through law that God chooses to reveal Himself to mankind. When God speaks to the assembled Israelites at Mount Sinai and to Moses at other times, what He communicates is not oracles about the future nor metaphysical truths about the nature of reality but Torah, law, and mitzvot, commandments.

To be sure, God in the Hebrew Bible is a God of miracles, redemption and grace. He intervenes in history, rescues His people and offers them – if they will live by His law – protection and prosperity. But this is, as it were, secondary to the essence of the covenant, about which Moses reminds the people in these words:

See, I have taught you decrees and laws as the Lord my God commanded me, so that you may follow them in the land you are entering…. Observe them carefully, for this will show your wisdom and understanding to the nations who will hear about all these decrees and say, “Surely this great nation is a wise and understanding people…” What other nation is so great as to have such righteous decrees and laws as this body of laws I am setting before you this day? (Deuteronomy 4:5–8)

Psalm 199 presents this same proposition from the perspective of personal spirituality:

I will always obey your law, for ever and ever. I will walk about in freedom, for I have sought out Your precepts. I will speak of Your statutes before kings and will not be put to shame, for I delight in your commandments because I love them. (Psalms 119:44–7)

Two striking expressions of this view are to be found in statements of the early rabbinic sages in the Babylonian and Jerusalem Talmuds. One declares: “From the day the Temple was destroyed, the Holy One, blessed be he, has nothing in this world except the four cubits of law.” The other attributes to God the statement: “Would that My children forsake Me and yet occupy themselves in the study of My law, for the light it contains would bring them back to Me.” In short: if we seek God we will find Him in law. Admittedly, God reveals Himself in nature and history as well. But neither nature nor history point as unambiguously to the existence of God as does law.

The second proposition, and perhaps the single greatest contribution of Israel to the religious heritage of mankind, is what is often called ethical monotheism: the idea that God is not merely the author of the moral law but is Himself bound by it. It is this that gives rise to some of the most awe-inspiring passages in the Bible in which Moses, Jeremiah, Job and others argue with God on the basis of the shared code of justice and mercy which binds both creature and Creator, reaching a climax in the question of Abraham: “Shall the Judge of all the earth not do justice?”

For Judaism, the connection between religion, law and morality is this. God and man come together to form a covenant which binds both to a morality which each recognises as righteous and just, much as two partners come together to form a marriage which both recognise as imposing obligations. Neither God nor man arbitrarily invent morality, just as neither husband nor wife invent marriage. By entering into a covenant, both agree to bind themselves to one another within its terms. Thus love is translated into a moral relationship whose terms are law.

So there is a substantive relationship between God and law, and between law and morality. Admittedly, it is loose rather than precise. There is much law in the Bible whose content we could call ritual, not moral. And there is much morality in the Bible – such as Leviticus’ command to love one’s neighbour as oneself. – which is not articulated in the form of a detailed code of law. But the connection is of the essence of religious life.

The picture set forth in the Bible is not one of legal positivism, in which, to quote Austin, “The existence of the law is one thing; its merit or demerit is another.” Nor is it one of natural law, in which obligation flows from human nature. Law, as portrayed in the Bible, is covenantal. It is born in the mutual agreement of God and humanity to engage in constructing a society on the foundations of compassion, righteousness and justice.

The third and most distinctive feature of Judaism is the connection between law and education. It can best be expressed in the proposition that Judaism expects its adherents not merely to obey the law, but to be lawyers: students of the law. Indeed this is one of the meanings of the phrase in which God, in giving the Ten Commandments to Israel, calls on them to become a “kingdom of priests.” For the priest in biblical times was not only one who served in the Temple but also one who acted as a judge and instructed the people in the law.

In a biblical passage which Jews recite several times daily, we are told: “You shall teach these [laws] diligently to your children, speaking of them when you sit at home and when you travel on a journey, when you lie down and when you rise up.” On the brink of exodus from Egypt, Moses instructs the Israelites not merely in a variety of laws, but also in how to teach and explain these laws to their children in generations to come. From the days of Ezra, if not before, the heroes of Israel have been its teachers. And by the first century of the Common Era, Jews had established the first system of free, compulsory and universal education known to history – an education first and foremost in the law.

The question is why. Here we can only speculate, but the reason seems straightforward. Inescapably there is a conflict between the rule of law and individual freedom. A civilisation can resolve this conflict in a variety of ways. It can place a low value on the rule of law, and thus favour anarchy. It can place a low value on individual liberty, and thus favour tyranny. It can make a third choice, the one favoured by John Stuart Mill, H. L. A. Hart, Ronald Dworkin and other liberal thinkers, which is to say that liberty is a supreme if not always overriding value, and that therefore the domain of law should be restricted in areas where personal choice is particularly important. As Dworkin puts it in his recent book, Life’s Dominion: “Whatever view we take about abortion and euthanasia, we want the right to decide for ourselves, and we should therefore be ready to insist that any honourable constitution, any genuine constitution of principle, will guarantee that right for everyone.”

Dworkin presents this as a conclusion to which any reasonable individual would be forced. But in one respect I believe he is wrong. The Hebrew Bible places a high, even a supreme, value on the individual and on freedom. The individual is, as the first chapter of Genesis states, made in the image of God. As the Mishnah puts it: “One who saves a single life is as if he saved an entire universe.” Freedom, too, is of the essence of serving God. Israel’s history begins with an act of liberation, and the laws of the Sabbath, the Sabbatical and Jubilee years and the many laws providing aid to the poor are all practical expressions of a social order designed to minimise the varieties of enslavement. So the Bible sets a high value on the individual and on freedom, but it sets an equally high value on law. How then does it reconcile the apparent conflict between these principles?

The answer lies in a particular concept of education, one sharply at odds with prevailing moral fashion but which can be found in Aristotle and until relatively recently might even have been described as self-evident. On this view education is not simply a matter of imparting information, inculcating skills and training the individual to make autonomous choices. Instead, it is a matter of inducting successive generations into the society in which they will become participants. It involves transmitting a particular society’s history, norms and “habits of the heart.” Education is an apprenticeship in being a citizen. It is a process of learning certain rules and then internalising them so that the law is no longer an external constraint but becomes, in Jeremiah’s phrase, a law “written in our inmost being and inscribed upon our hearts” (Jeremiah 31:33). Law then represents not a set of regulations but that configuration of character that the Aristotelian and Maimonidean traditions call virtue.

The Judaic connection between law and education is this: that only when our sensibilities are educated by the law can we associate the law with freedom rather than with constraint, and say with the Psalmist, “I will walk about in freedom, for I have sought out Your precepts.” Teaching, instruction or education – understood as the transmission of a moral tradition across the generations – resolves the conflict between liberty and law without forcing us to choose between anarchy and tyranny. Law is seen as part of a moral order which, to the extent that it is internalised as self-restraint, does not need to be enforced by external agencies such as police, courts and punishment. Education becomes the guardian of liberty, because it maximises the degree to which civil society is sustained by self-imposed restraints and minimises the degree to which we depend on the intervention of outside force. The more law is inscribed upon our hearts, the less it needs to be policed in the streets.

This, then, is the portrait of law we find in the Bible. To this I add one final observation. For there is an obvious question to be raised. Why does the Hebrew Bible emphasise law more than (though it does not neglect) individual salvation and private faith? Surely law is a highly secular phenomenon. It deals in matters of this world, the original meaning of the Latin saecularis. Religion, surely, is a private transaction within the soul and bears only tangentially on legislation, crime, punishment and the social order?

The answer, I believe, is this. The Hebrew Bible portrays God as One concerned above all with how we behave towards others. God is to be found in relationships, and relationships take place within the framework of society and its institutions and rules. Faith is thus linked with morality, and morality is an essentially shared, collaborative endeavour. Its smallest unit is the family, its largest unit is humanity, and between them lies a variety of communities from the neighbourhood to the nation state. What morality is not and cannot be is a private enterprise, a form of self-expression. What liberal individualism takes as the highest virtue – each person doing that which is right in his own eyes – is for the Bible (Deuteronomy 12:8, Judges 17:6, 21:25) the absence or abdication of virtue, and indeed a way of describing the disintegration of society.

Morality and Law This takes us directly to the present. In 1959, Lord Devlin delivered a lecture which subsequently became the basis of much discussion, entitled “Morals and the Criminal Law.” In it he said this:

Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions.

That argument was rejected, and since then many laws thought to have a moral or religious basis have been repealed or liberalised. But something else has happened, almost without comment. What provoked Lord Devlin’s response was a sentence in the report of the Wolfenden Committee (1957) which said this: “Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.” The report then added, by way of postscript, “To say this is not to condone or encourage private immorality.”

Let me say, lest I be misunderstood, that on the substantive point I agree with Wolfenden. Jewish law itself draws a clear distinction between matters to be adjudicated by a human court and those where judgement is the exclusive prerogative of God. However, subsequent experience has shown one thing to be false, namely the assumption that you can change the law while leaving morality untouched. The authors of the Report evidently believed that homosexuality could cease to be a crime while remaining in the public mind a sin. It would no longer be punished; it would merely be denounced. Morality would not be enforced by law. It would instead be reinforced by teaching and preaching.

That attractive prospect has proved to be unfounded. The extent to which changes in the law set in motion a wholly unforeseen series of developments can best be measured by this fact: that were the authors of the Wolfenden Report to repeat today that certain sexual behaviours whilst not criminal are nonetheless sinful, they would find themselves banned from most British classrooms and American universities on the grounds of “homophobia.” The liberalisation of the law has led to an astonishingly rapid eclipse of the very idea that there are shared moral norms. What a single generation ago was the avant garde of radical liberalism would today be seen as the politically incorrect face of moral fundamentalism.

We are all too familiar with the consequences. An environment in which moral judgement is condemned as being judgemental, in which the one concept to have universal currency is that of rights but in which there are no agreed criteria by which to adjudicate between conflicting rights, in which the idea has become an orthodoxy that there is no sexual ethic beyond the consistent application of personal choice, has caused the disintegration of one after another of the bases of our shared moral universe. In such an environment there can be no moral authority beyond the self or the sect of the like-minded. There can be no moral institutions, such as that of the family, in which obligations self-evidently override personal preference. There can be no moral role-models who epitomise our collective values and virtues, because we are too divided to reach a consensus on whether to prefer Mother Teresa to Madonna. There can, in short, be nothing beyond the random aggregation of individuals and groups living in accidental proximity, each with its own lifestyle, each claiming our attention for the duration of a sound-bite. The moral voice has been replaced by noise, coherence by confusion, and society itself by a series of discreet particles called individuals.

It is as if, in the 1950s and 1960s, without intending to, we had set a time-bomb ticking which would eventually explode the moral framework into fragments. The human cost has been colossal, most visibly in terms of marriage and the family. There has been a proliferation of one-parent families, deserted wives and neglected and abused children. But the cost has been far wider in terms of the loss of authority, institutions in crisis, and what Durkheim called anomie, the loss of a public sense of moral order.

It is precisely at such times that an immense burden is placed upon the law, law specifically in the minimalist sense I described above. Law at such points in the history of civilisation is seen not as the expression of something wider and deeper, what Leslie Stephen described as “the seal on the wax of moral sentiment.” Rather it is seen as an external constraint, limited to the prevention of harm to others. But because our internal constraints have been eroded, the police, the courts and Parliament are hard pressed to contain the tide of crime. And because we no longer have a shared moral code, the law is called on to decide what has become effectively undecidable, namely what constitutes harm to others. Does abortion? Does the withdrawal of a life-support machine? Does the destruction of an embryo created by in vitro fertilisation?

We turn to the law to answer such questions for us, as Americans have recently turned to the law to tell them what constitutes sexual harassment or adequate fatherhood. But the law no longer reflects moral consensus because there is no consensus for it to reflect. The law is placed in an increasingly invidious situation as we expect more from it and as society’s moral code and institutions give it less and less support. The law becomes our only authority in an age which is hostile to authority as such. The result is the situation described in the opening words of the book of Ruth, conventionally translated as “In the days when the judges judged,” but which rabbinic tradition translated as “In the days when society judged its judges.”

We are, I believe, at a difficult time for religion, morality and the law. There is only a fine line dividing liberalism from individualism, and freedom from the disintegration of the concept of the common good. My own view is this. Though I value the contribution of liberalism to the opening up of society to a multitude of voices, we are in danger of finding ourselves having gone too far in abandoning the idea of society as a shared moral project, and this will have tragic consequences for both our public and our private lives. There are things we cannot achieve without collaborative effort framed by shared rules, roles and virtues. Among them are peace, compassion, justice, and the resolution of conflict in a way that both sides can see as fair. These are the very things by which, according to the Hebrew Bible, God judges that most risky of His undertakings: the creation of mankind.

We cannot undo what we have done. Having de-legislated large sectors of morality we cannot re-legislate them. The necessary consent has gone and there is no point in moral nostalgia, fondly remembering the days when you could go out leaving your front door unlocked. But we can summon the courage to rebuild a moral consensus, beginning with that most fundamental of questions: what sort of world would we wish to bequeath to our children and grandchildren?

I believe that the law needs and deserves this from all who have moral influence in our society, not least from religious leaders. We must have the courage to make judgements, to commend some ways of life and point to the shortcomings of others, however much this offends against the canons of our non-judgemental culture. We must lead by moral vision and example, and be prepared to challenge the icons of individualism, the idolatry of our age.

My argument, then, is this. At a certain point in the history of civilisations, a moral consensus breaks down. The connection between law and morality becomes problematic, and an attempt is made to solve the problem by conceiving law in minimalist terms. It is there to do no more than to prevent harm to others, to prevent us, in Rabbi Hanina’s words, from swallowing one another alive. The passage of time, however, invariably exposes the contradiction at the heart of this idea. Law is left to solve problems which it cannot solve alone. We then painfully rediscover the ancient truth of the Hebrew Bible, that the rule of law is compatible with a sense of personal liberty only when supported by at least some collective moral code and by an educational system which allows successive generations to internalise it. Society cannot live by law alone. It needs our common commitment to the common good.