May 9th, 1999.
"A Proper Notion Of Law."
We cannot by our criminal law (that is to say workable criminal law) declare that a certain act be punishable by the state unless most all of the members of the community believe and hold that the impugned act goes against a universally held moral tenet. There are certain acts which we can fit into our criminal law, and there will not be much dispute about it; however, there are other acts, innumerable acts, which certain groups will say are immoral (and for them, no doubt these acts are) but which other groups will say are not. It must be remembered that morals (a concept linked with social customs and traditions; and, historically, a concept wrapped up in religious beliefs) not only change from one age to another, but, in a given age, from one group to another. We can get unanimous agreement that acts of murder, robbery and assault are criminal acts, and likely a host of other human acts would qualify; but, as we move out into the great circle of moral wrongs, more and more dispute will result. At some point (and, in my view, at a point not to distant from the centre) it must be determined not to pass a criminal law against a human activity, which, while one group thinks to be immoral, others accept as being simply an act of individual human freedom which has no direct effect on the rest of us. Such a disputed human act (and a voluntary sexual act in exchange for money must surely be one of them) must be left to the natural restraints which work upon it.
John Locke in 1690 said that "Law, in its proper Notion, is the Direction of a free and intelligent Agent to his proper Interest." "Proper Notion"? What do you suppose Dr. Locke meant by this. My idea is that this is a kind of law which comes from no human authority, other than our own personal authority within each of us; it is the law that each of us carries around in our breast; legal scholars call it natural law. In other words, there exists law in each of us, as free and intelligent agents, which is there for each of us to obey, not because we fear the punishment that may be prescribed in the breaking of such a law, but rather because we fear the loss of respect from family and acquaintances. The "Proper Notion" of law is that it is found within a person, himself or herself; it is not imposed externally; in such a notion there is absolutely no curtailment of "freedom," an essential aspect for our collective workings. The "Proper Notion" of law is that it is an ideal necessity given in the form of a precept, which we ought to follow.