A DOG THAT WON'T HUNT

-ESSAY: The Islamification of our law: liberal absolutism threatens our ancient liberties in much the same way as Muslim fundamentalism (Roger Scruton, 4/12/03, The Spectator)

World events are delivering an important lesson in jurisprudence. They are teaching us that there is a radical distinction between those for whom law is a way of reconciling differences between people, and those for whom law is a way to eliminate those differences, by enforcing conformity to a single faith or code. For us in the West law is one thing, morality another, religion a third. We respect law as part of an ongoing attempt to live by negotiated solutions. We do not believe that the law should impose a moral code in the face of widespread disagreement, nor do we believe that people should be made into criminals merely because we disapprove of what they think, feel or do. For us the rule of law is expressly contrasted with the rule of force, and a law-governed community is one in which differences are tolerated and freedom defended. [...]

Law, in a liberal democracy, is concerned not to impose moral conformity but to maintain peace, order and goodwill between people, all of whom are free to pursue their own conception of the good life, to the extent that they can do so without harming others. The main contours of this view - tellingly argued by Mill in On Liberty - were until recently accepted among educated people, most of whom would concur in the judgment that it is both reasonable to regard adultery as immoral, and oppressive to make it a crime. The examples can be multiplied, and some are less plausible than others. But the more our legislators espouse the principle that "public morality" is sufficient grounds for legislation, the closer our legal system will come to the Islamic one. Do we want that? And do we not in any case have real moral objections to it? Don't we recognise the immorality of a law that seeks to force people not to do something merely because a passionate minority proscribes it, and regardless of their own conscience?

In short, are we prepared to exchange our legacy of legal toleration for a new kind of puritanism that makes "public morality"--as conceived in the heads of a determined minority--a sufficient basis for law, and which is prepared to override the competing moral instincts of those who disagree with it? The reason why the case of hunting is important, even for those who disapprove of hunting and would like to see it banned, is that it is the cornerstone of an indigenous way of life. To ban hunting is to criminalise a large and generally law-abiding minority. To justify a ban therefore requires some other argument besides the mere fact of moral disapproval: we need a clear conception of the benefits not only to animals but also to people. But the parliamentary opponents of hunting have refused to enter the argument about these complex matters, having seen that it is an argument that they might lose. Morality seems to them like a better resource, since of its very nature it is absolute and irrebuttable. Invoking morality is a way of saying, with Luther, "Here I stand; I can do no other"--in other words, a way of refusing to engage with your opponent.

There is a precedent here that ought to disturb us; and if it doesn't disturb us now, then it will probably do so later, as Members of Parliament discover the ease with which their prejudices can be transcribed into law, and the satisfaction that can be obtained in this way by punishing those of whom they disapprove.

This may all once have been true, but even Mill, as George W. Carey writes in a terrific essay, The Authoritarian Secularism of John Stuart Mill, was not arguing for a free-floating liberty. He believed that an agreed upon societal morality was a necessary precursor to freedom. To the extent that we no longer enjoy such a universalized morality--so that unpredictability has replaced conformity--law does in fact become its replacement. Posted by Orrin Judd at May 11, 2003 6:20 AM