As I write, protests are taking place all over Iran. The protesters are mainly but by no means entirely women and they are protesting against the 'moral police' of Iran. The moral police are attempting to enforce a fundamentalist interpretation of Islamic views on women, what they should wear and how they should deport themselves.
The problem in Iran is an extreme version of a problem which can also be found in western democratic countries. The most obvious example of that concerns the very conspicuous and sometimes violent confrontations in the USA over abortion. It is a lesser issue here since abortion in most circumstances is not against the law, but there is a secondary issue of groups attempting to interfere with legally recognised rights.
In case anyone should jump to the conclusion that the issues always concern men using the law to oppress women, I'll begin with the cases which became notorious in the 1950s and 60s – the cases of the law forbidding homosexual relationships between men. (Lesbian relationships have never been illegal in this country because Queen Victoria did not believe they ever took place.) In the 1950s and 1960s, there were certainly morality police in this country who hunted down and sometimes entrapped homosexual men and spied on possible abortion clinics. So we shouldn't get too self-righteous about Iran, although obviously things are much worse there.
But our own morality police have been concerned in the recent past with areas other than sexual behaviour. Another issue in which the law tried to enforce morality in the UK concerned suicide. Those caught attempting suicide were likely to be brought before the local magistrate. A sympathetic magistrate might say: 'I'll give you a chance to go straight'. Scarcely believable, but it wasn't so long ago.
The attitude goes a long time back. The 13th-century philosopher Thomas Aquinas (1225-74) offers three arguments against suicide: everything naturally keeps itself in being so suicide is contrary to the natural law; we are all part of a community so suicide injures the community; life is a gift from God so to take your own life is to sin against God. This point of view became enshrined in the law of the land. Indeed, the great English jurist Sir William Blackstone (1723-80) described suicide as 'self-murder' and saw it as a serious felony.
On the other hand, David Hume, almost a contemporary of Blackstone, wrote an essay, On Suicide
, in which he restated the views of classical authors to the effect that suicide is permissible, even praiseworthy, if it is done freely by an individual on the grounds that it would be better for him/her and for society.
Despite Hume's arguments, suicide remained illegal in England until 1961 when it was decriminalised. Interestingly, suicide has never been a crime in Scotland, although encouraging or assisting suicide is a crime under Scots law. I shall come later to the issue of assisting suicide.
Despite the fact that suicide has been decriminalised in England and has never been a crime in Scotland, attitudes towards suicide in both countries remain complex. A suicide understandably can cause huge distress to friends and family members. This is partly the distress which can be caused by any sudden bereavement, but more particularly the distress can be aggravated by a feeling of guilt. Should I have noticed? Did I do enough? Will friends blame me? All such reactions are understandable.
The situation is different when someone commits suicide in prison. Prison officers go to great lengths to prevent this and find themselves in trouble with prison authorities and sometimes the general public if a suicide occurs on their watch. This public reaction can be for good and humane reasons. Was the prisoner living in very bad conditions, or being bullied or given no hope of rehabilitation? But more commonly, the public exhibits a retributivist attitude: the criminal has got away without serving out his punishment.
Assisting suicide is a perennial topic likely to come up again soon in Holyrood. I shall not discuss the arguments but they fall in to easily recognisable groups: the religious view that it is just wrong to assist a suicide; the view that it ignores the possibilities of palliative care; the view that doctors are not keen on it; that there are no adequate safeguards against exploitation. On the other side, there is the view that some kinds of pain cannot be relieved by palliative care; that people have a fundamental right to determine what should happen to them; that doctors and others can conscientiously opt out.
I shall not mention the dignity argument since it can be and has been used on both sides of the argument. The strongest argument in favour of assisted suicide is the autonomy argument.
The objection people in this country feel about 'moral police' stems from the same strongly held current belief in individual autonomy. People, we say, have a right to make up their own minds on what to do with their lives; interference on this matter can be portrayed as paternalism, currently a cardinal sin.
Yes, but even the liberal individual must also recognise the qualification: you can act as you please provided you are not harming others. And, as I suggested above, you might be causing lifelong emotional distress to your family and friends. There is, therefore, the need to balance a range of factors.
But our objection to the idea of using the law to enforce morality is only half the story. It offers a very limited view of both morality and law. Morality is not just a matter of condemning a range of behaviour; it is also concerned with the improvement of life and social conditions. And it is an error to regard all legislation on the model of the criminal law – as restrictive prohibition backed by sanction. The law can have a positive function and create the circumstances which can lead to the improvement of morality.
Consider some examples. The most obvious example is education. The law insists on education up to a certain age. Again, legislation exists to require public bodies to make provision for the disabled. These examples are more aptly seen as positive creation of new opportunities than as negative prohibitions. There are legal requirements on factory owners to restrict unpleasant pollutants, and on car manufacturers to ensure certain safety standards. Indeed, there is an enormous range of legislation with a positive slant. Whereas this may diminish the freedom of some groups in society, it certainly improves the quality of life of the majority.
I wish to suggest that, in many contexts, political decisions backed by law work best if they support and fund existing community projects. We are in fact social beings and members one of another and therefore require legislation with a positive function to meet the wide variety of our needs.
Legislation does not always involve removing our individual autonomy; a great deal of legislation is concerned with enhancing it. In improving the general quality of life, legislation can add to our autonomy and be of benefit to morality.
The question is often posed as: Should the law enforce morality? But a better version of the question is: what aspects of morality should the law enforce? It should clearly enforce all the variety of aspects of morality concerned with our protection. But I have suggested it can also have a positive function by enforcing welfare legislation, defending human rights and supporting community initiatives.
Robin Downie is Emeritus Professor of Moral Philosophy at the University of Glasgow