A few years ago, Lord Justice Bingham observed that judges increasingly had to pronounce moral judgements in court. It no longer makes sense to say, “This is not a court of morals.” Of course it never did make much sense; murder was always morally as well as legally foul. The criminal law reflected more or less shared moral beliefs; if it ceased to do so, it would become unenforceable.
However, the comfortable assumption of coincidence between moral beliefs and the criminal law is no longer justifiable. Though much of the law remains squarely in accord with what society believes to be right, we are more conscious than ever before of sometimes irreconcilable differences. As private individuals, we may be content to advocate a practice of tolerance, a kind of moral relativism, but in public life, in legislation and the enforcement of law, there is no room for relativism. Society survives only if it is subject to the rule of law, and the law must be unequivocal, and must be seen to apply to everyone alike. So how can the law claim the authority on which it depends?
If we consider the passage of a new law, the problem becomes obvious. For example, with the Embryology Bill, to be debated in the House of Commons in May, there is profound moral disagreement between those who would permit the creation, for research, of admixed human embryos (the nucleus of a human cell, encased in the emptied outer coating of the egg of another animal) and those who regard this as a moral outrage. How can this moral dispute be settled?
It is to answer this question that religion tends to raise its voice. Over Easter, a campaign was mounted by the Roman Catholic Church to denounce the proposed law. Catholic MPs were urged, even ordered, to vote against it when the time came. Even though admixed embryos were to be permitted only for research, and even though, in accordance with existing law, no such embryo could be kept alive for longer than 14 days in the laboratory, nor placed in the uterus of a woman, still the creation of such an embryo was forbidden by God’s law.
There are two aspects to this law: first, since God gives the gift of life to human embryos at conception, no human embryo may be used for research and then destroyed (the present law already contravenes God’s command here). Second, and it was this that gave rise to the impassioned rhetoric of the Easter sermons, in the beginning God created man to be absolutely different from all other animals, so an admixed embryo, even if it was allowed to live for only five minutes, is an offence against God, a disobedience perhaps consequent upon man’s first disobedience, his plundering of the tree of knowledge.
I have no idea how many practising Roman Catholic MPs there are. But even if they happened to form a majority in the House of Commons and could prevent the passage of the Embryology Bill, I believe that they would have no business to do so, unless they could find other reasons than their own religious convictions on which to base their opposition. Society is not a religious organisation like a church. Laws must as far as possible be made in the interests, far wider than matters of faith, of all members of society, whether or not they hold any religious views. As legislators, MPs and governments must consider the consequences of the measures before them, how they will probably affect society and whether they will do more good than harm. It is the role of legislators to be consequentialists. They must not ask, “What does my religion teach about this measure?” but “Will society benefit from it in the empirical world?”
I do not underestimate the importance in this country of the historic culture of Christianity. The assessment of what is good and what is harmful is, for most people, deeply influenced by the Judaeo-Christian tradition. Influence, however, is different from authority. That religion, any religion, may seem beleaguered in a generally secular society may account for the increasingly hectoring demands that it should exercise authority over us. Yet it is essential to hold on to the fact that in this country we are not a theocracy, but a democracy. Parliament must make the final decisions on legislation, even though these are also moral decisions. Parliament must try to judge what is the common good. We all have the right, and duty, to criticise the law. But it is parliament alone that gives law the authority, without which we would face political chaos.
Baroness Warnock is a member of the Archbishop of Canterbury’s advisory group on medical ethics
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