Although they were not in any sense putting forth rival views, they approached their common ground from different directions. While both felt it was not for judges to promote or enforce religious or sexual morals, as had been done in Victorian times, they differed slightly on the role of moral values in the modern legal process.

The more prominent of the two judges was Sir James Munby, President of the Family Division of the High Court, giving the keynote address to the Law Society’s Family Law Annual Conference on 29 October 2013. Although his paper, entitled “Law, Morality and Religion in the Family Courts” was more widely reported on his remarks about the role of religion in our law courts (“Religion … is not the business of government or the secular courts”), much of what he said was really directed to the wider issue of morals, which can be derived from religion, but need not be. And he was careful to remind his listeners of the distinction between enforcing religious principles or the morality derived from them on the one hand, and respecting and protecting the right to hold sincere beliefs on the other.

Sir James began by citing a case from 1905 in which a judge in a family case had confidently asserted that the function of judges was “to promote virtue and morality and to discourage vice and immorality”: see Constantinidi v Constantinidi [1905] P 253, 278, per Sirling LJ.  He gave various examples from the 19th and early 20th century in which courts had decided cases on moral grounds, applying the sexual morality of Victorian righteousness according to which any woman who slept with a man outside marriage was to be treated as no better than a common prostitute, and could be stripped of rights over property or children simply by virtue of her, well, lack of virtue. Needless to say, the same strictures were not applied to men.

The Victorian hang-up about sex (or stern Canutism in the face of progress) was most startlingly exemplified by In re Besant (1878) 11 Ch D 508, in which it was held that the publication by the activist Annie Besant of a book about contraception, which was found to constitute an obscene libel, was sufficient grounds for removing her seven-year-old daughter from her custody.

Sir James then stepped back from the arena of family law, and considered the wider question of the relationship between law and morality, saying:

“Happily for us, the days are past when the business of the judges was the enforcement of morals or religious belief. That was a battle fought out in the nineteenth century between John Stuart Mill and Sir James Fitzjames Stephen (Stephen J) and in the middle of the last century between Professor Herbert Hart and Sir Patrick Devlin (Devlin J). The philosophers had the better of the argument, and rightly so.”

The debate in the 19th century began with Mill’s On Liberty, published in 1859, in which the philosopher put forth the libertarian argument that the only warrant for interfering with anyone’s actions was to prevent harm to others.  Stephen J responded with his book Liberty, Equality, Fraternity, published in 1873, in which he asserted that “restraints on immorality are the main safeguards of society against influences which might be fatal to it”. The purpose of the law, both criminal and civil, was to promote virtue and prevent vice.

A century later, in reaction to the liberalising proposals contained in the Report of the Committee on Homosexual Offences and Prostitution (The Wolfenden Committee) (1957), Sir Patrick Devlin, in The Enforcement of Morals, reiterated Stephen J’s view, asserting that “an established morality is as necessary as good government to the welfare of society”, and that “the suppression of vice is as much the law’s business as the suppression of subversive activities”.

Taking up the opposing, libertarian view, was another philosopher, Professor Herbert Hart, who in his book Law, Liberty, and Morality, echoed what JS Mill had said a century earlier, that essentially it was not the law’s business to regulate morality.

Having set out the opposing positions, Sir James Munby P went on to demonstrate how history had proved the philosophers to have had “the better of the argument”. He cited the poet Philip Larkin’s famous lines about how “Sexual intercourse began/In nineteen sixty-three…” Modern sexual morality, said Sir James, was a product of the 1960s.

That decade had begun with what Sir James called the “last harrah of the ancien regime”, the decision of the House of Lords in Shaw v Director of Public Prosecutions [1962] AC 220, upholding the appellant’s conviction for, inter alia, conspiracy to corrupt public morals, after he had published an illustrated directory of prostitutes. In his judgment Viscount Simonds, at p 267, said the “supreme and fundamental purpose of the law [was] to conserve not only the safety and order but also the moral welfare of the State”.

He might just as well have said, like Madame de Pompadour: “après nous, le Déluge”. The following year, the prosecution of Penguin Books for obscenity in publishing an unexpurgated version of DH Lawrence’s frankly explicit novel, Lady Chatterley’s Lover, was notoriously unsuccessful, marking a turning point in the public acceptance of the dawning sexual revolution for which the decade is remembered. Within a few years Parliament had legalised contraception and abortion and decriminalised homosexuality. The fundamental link between sex and procreation had been sundered, and so, Sir James seemed to be saying, had that between morality and law. At any rate, it was not for judges to arrogate to themselves the custodianship of public morality: the job of adapting the law for a multi-cultural multi-faith society was now for Parliament, not the courts.

Law as a system of values

Although Sir James gave his speech several days later, he made no reference to that given on 24 October 2013 by Sir Rabinder Singh, a high court judge (Singh J), giving the Jan Grodecki lecture at the University of Leicester, under the title “Law as a system of values”. Yet the content of the two speeches covered strikingly similar ground, and many of the same quotations were employed in illustrating the points made.

Sir Rabinder said the relationship between law and values was “not a straightforward one”. By “values” he meant to include: “what a society regards as most worthwhile. Often values are moral values but they need not be; and moral values certainly need not be founded on the doctrines of religion in general or any religion in particular.”

It was clear, he said, that many legal rules were intended to “give effect to certain basic values of a society”, and this provided “much of the moral force which is needed to support positive rules of law, in particular the rules of criminal law.” A society could not function without rules prohibiting murder or theft. “One thinks immediately of the Ten Commandments.” Such rules reflected fundamental values which might have derived from religious traditions but were needed even in a wholly secular society.

In civil law, “the principle that promises should be kept lies beneath the law of contract; and much of the law of equity was historically founded upon principles of conscience.” As for the law of negligence, one had only to recall Lord Atkin’s famously Biblical description of the “duty of care” as one owed to one’s fellow man as a “neighbour”: see Donoghue v Stevenson [1932] AC 562, 580.

Likewise, legislation often sought to reflect and promote (even if it could not always enforce) certain values, such as that of equality between human beings regardless of race, sex, colour, ability etc, in the anti-discrimination laws.

The key point which Sir Rabinder wished to make was that even though the secular courts now disavow any duty or intention to enforce morals, the law which they apply is still based on and reflects values. Although a judge was not entitled to impose on society his or her own subjective views of what was morally right or wrong, there were many occasions when simply applying a system of black letter rules was not enough. An obvious example was sentencing, where section 125 of the Coroners and Justice Act 2009 provided that the court should follow any relevant guideline issued by the Sentencing Council, unless it would be contrary to the “interests of justice”. That phrase was not, however, defined in the Act.

Other examples could be found in the civil law, under which a contract might not be enforceable if it would be “contrary to public policy”, where a covenant might be in “unreasonable” restraint of trade, or a duty of confidentiality overridden where it was “in the public interest” to do so (and where, one might add, there was an obligation of “good faith” in insurance contracts).

How was a judge to determine these questions without applying values? Where were the values to be found if not in the subjective views of the individual judge?

The answer, Sir Rabinder said, was to be found in using the conventional techniques of legal reasoning, by referring to relevant legal materials, such as binding precedents or legislation, and by reference to the “fundamental values which are well established in our system of justice”. The principle of proportionality, for example, in relation to sentencing.  The rights set out in the Human Rights Act 1998 were a good guide, if not an exhaustive one, to what our society regarded as fundamental values.

Most observers of the English legal system would acknowledge that its values included the concepts of fairness, equality, democracy and the rule of law. Sir Rabinder continued: “Although the law does not any longer attempt (or even think that it should attempt) to enforce morals in the sense that Lord Devlin thought it should 50 years ago, that is not to say that the law is immoral or even amoral. It is based on values, which lie at its foundations, but one of those values is that we do not necessarily think it right to impose a subjective code of private or sexual morality on an individual.”

He then cites what Lord Devlin had argued about the enforcement of morals, and Professor Hart in reply, much as Sir James also does in his lecture. But interestingly, there’s another passage from Hart (which Sir James does not quote), in which he speaks in the language of values: “The unimpeded exercise by individuals of free choice may be held to be a value in itself with which it is prima facie wrong to interfere; or it may be thought valuable because it enables individuals to experiment – even with living – and to discover things valuable both to themselves and others.”

The fact that the law is no longer concerned with the enforcement of morals (as Sir James makes abundantly, and perhaps triumphantly, clear) does not mean, says Sir Rabinder, that “the law has become a value-free zone. Far from it. It means that the values of the law are now different from what they were 50 years ago.” But it could still be said that the law was a system of values.