What is a law anyway?

The Victorian government proposed a law that would prevent men only clubs, (though not women only clubs) and prevent religious organisations (not only churches but Islamic mosques, synagoges and temples from refusing to employ people who either disagree with the religion or live in ways that are not acceptable to the religion concerned. This the Victorians say is to prevent discrimination. They say further that it will only affect the religious organisations in ‘non core’ activities –such as schools and hospitals.

This would mean that a Muslim school would not be able to insist that only Muslim teachers taught, or even that non Muslim lady teachers wore long sleeved shirts and skirts down to about the knee (Which the Koran prescribes for women in public).

I am not writing more about whether the proposed law is good or bad- other commentators including Peter and Tim Costello have done this (they both say it’s a bad law). But any such law- which tries to enforce a particular moral pattern on others – reverses the relationship between law and morality. To see this we need to first look at the basic question-what is a valid law and how do we recognise a law.

The most common view in England for many years was that a law was what "the Sovereign commanded as law". It didn’t matter whether the Sovereign was the King or Queen or whether it was parliament so that for the last 200 years of so a law was what the English parliament said was the law. Court decisions were law because the Sovereign had established the courts and made laws that enforced the courts decisions. This idea came across to Australia. But it ran into two problems.

The first was that Australia (and for that matter Canada and many other Commonwealth countries) had written constitutions. And even the otherwise sovereign parliaments had to comply with the constitution.

The second problem was as one legal theorist (H L A Hart) put it- to say the law is what the sovereign commands is a bit like saying the law is what an armed gangster commands- might is right. Say that there is a morally repulsive law – if the Sovereign said it is the law then it is the law. To take a real example: were the Nazi Nuremburg laws confiscating Jewish property, and in the end sending Jews, Gypsies, Freemasons and many others to death valid laws? Yes if what the Sovereign (in this case the Nazi state) commanded was law.

Hart (and my lecturers at university) answered these two problems by saying that law was ultimately directed at officials- whether the officials were police, public servants, or even people who –while not part of the government applied the laws. Here they meant people like accountants who lodge your tax returns in accordance with the tax laws, solicitors who handle your property sale in accordance with the conveyancing laws.

So Hart said a valid law was one that was recognised by these officials as law. And so there was an overriding ‘recognition rule.’ The officials accept the rule’s criteria as binding on them. And then they accept as law whatever matches the criteria. An outsider can see what the law is from how the officials behave.

This solves the first problem- parliament, the courts and so on all recognise the constitution governs them, they also recognise the laws made under the constitution.

But it doesn’t solve the second problem. And it is that second problem and how it is solved which I will write about next time. And then you will be able to see whether you think the Victorian proposals are proper laws.

Some Links

Peter Costello on the Victorian laws http://www.theage.com.au/news/opinion/pursuing-the-churches-over-human-rights-is-contradictory/2009/07/28/1248546725162.html

Some responses to Costello's article http://www.theage.com.au/news/opinion/letters/democracy-first-then-christianity/2009/07/29/1248546773934.html

The Community Legal Centres views http://www.theage.com.au/opinion/equality-loses-out-to-freedom-20090802-e5sm.html (in my view they have rather missed the point, they are arguing that a particular viewpoint should be enforced in the courts and not by lobbying your member of parliament and if need be voting against him or her. That is they are talking about the way of enforcing a particular law.)