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An Essay about Law, Freedom, and Morality.

Some Chosen and Revised Considerations on Aspects of Enforcement of Morality by the


Law

1. Introduction.
The paper1 seems to be general but it really isnt. What is my aim? I want to analyze
relations between law, freedom and morality, i.e. the phenomenon of so called enforcement
of morality by the law in connection with the freedom value, changes in the law in socially
and morally controversial cases, and conservative and liberal points of view of the law in the
field.
My hypothesis is that the law concerning socially and morally controversial cases is
often a result of social compromise and it is a power of the law because of strong social
legitimization of the law but, on the other hand, the law seems to be incoherent axiological
system what causes some problems related to moral consistency of the legal system and its
justification. The law liberalization in the field of morality, especially sexual morality, is still

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It must be necessarily said that the first version of the paper had been presented at the IVR world conference in
2007. Then it had been published in Romania (the first version) as follows as: BUNIKOWSKI, D. (2008)
Enforcement of morality by the law. Romanian Review of Philosophy of Law and Social Philosophy, 1(7). Later,
the correct version was published in Poland, as a chapter of an international project/book: BUNIKOWSKI, D.
(2010) Enforcement of Morality by the Law IN GIZBERT-STUDNICKI, T. & KLINOWSKI, M. (Eds.) Law,
liberty, morality and rights. Wolters Kluwer Polska OFICYNA, Warszawa.
That version we can see now is the third, completely revised, version of the paper I have mention at the
beginning of this footnote. It is very changed, wider, and more critical point of view. In this version I express
some ideas which are not visible in the another versions. So for me it is quite another paper that presents my all
comprehensive ideas about freedom, law, morality, and the enforcement of morality by the law problem. I think
that a liberal option of thinking in the previous versions hided some very important and serious issues such as
a clash of values, a cultural war, conservative morality, or an argument of majority in democratic states, and so
on. I have developed also some philosophical approach in the field of considerations about freedom as a moral
and social or individual value. I have developed my political considerations in the field of relations between the
law in socially and morally controversial cases and the regime (political system), and between the political
decision and the law, too. My conclusions now are more full and really comprehensive, I would say. Maybe six
years ago I would not have agreed with the current theses but they are a result of my so far research after 2007 or
2010. And now I know that it is the complex and definitely last version of the paper with which I started to talk
in 2007.
At the end of this explanation I would like to thank very much my old Master, Professor Wiesaw Lang
for so many directives, suggestions, advices, support and kindness in my research about law and morality. He
died on the 31st of December in 2012. He would be happy to see my scientific development in the Scandinavian
high education system, I hope so.

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going on, although, as I maintain, the legal system may not be axiologically compatible. Let
me add that the law is like a fight between perfectionist morality and absolute freedom.
Freedom as one of the social and individual values is the subject of regulation of
morality and the law. But what does enforcement of morality by the law mean? First, it
seems to be a legal regulation of morally and socially controversial cases in society, especially
the restriction of moral choices in the light of the law in fear of collapse of the society
existence (as Devlin prophesies). I must add that the category of socially and morally
controversial cases at some level is still changing in one society (e.g. a divorce or a
homosexual act is not so controversial now as it was 50 years ago in many European countries
when societies were not so secular and liberal). Second, it is an incorporation of the
perfectionist moral rules to the law with an incorporation of ontological justification of the
perfectionist moral values to the law. In the Western culture these are matters such as e.g.
abortion, pornography, prostitution, homosexual acts, homosexual marriages, euthanasia,
cloning. Prohibition of killing is not an example of enforcement of morality by the law
because it is obvious and necessary prohibition but prohibition of abortion is a typical
example of the enforcement of morality by the law because it is socially and morally
controversial case. Relations between morality, the law and the freedom value seem to be
rather certain and obvious. If I cannot do something in the light of the law (e.g. abortion)
because it is legally forbidden by reason of immorality of that controversial act (abortion is
socially controversial, but killing is not controversial as I said), I know and feel that my
freedom is restricted. We can ask: why are some human acts forbidden or allowed? What is an
axiology of legal restrictions? What is an axiology or justification of legal regulations in
morally controversial cases?

2. Freedom. Schopenhauers thought about freedom.


What is freedom? Everybody has another description and definitions about what it is.
Let us follow one of the greatest philosophers.
According to Arthur Schopenhauer2, we can distinguish three types of freedom:
physical, intellectual and moral freedom. Physical freedom means lack of obstacles of all
kinds e.g. free space, free place, free way, free chair, free entrance. There are no

2
See SCHOPENHAUER, A. (2004) O wolnoci ludzkiej woli (On Freedom of Human Will), Krakw, Zielona
Sowa.

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physical material barriers. Intellectual freedom means that an intellect shows human will
non-false stimulations as they are existing in the external world. Stimulations are chosen by
us. Man is intellectually free because an act is a clear result of reaction of his will for
stimulations. There are many different stimulations in the world e.g. beauty, desiring of
power, hunger (Schopenhauer 2004: 9-10, 82). I am intellectually free because I see these
stimulations without any deformation/distortion (e.g. I know that I am hungry and it shows
me that I should eat; I know that you are beautiful so I may fall in love with you). The
intellect makes it possible for me and for my will.
Moral freedom means that there are some stimulations such as threats, promises,
dangers which may be barriers for human acts, even these are compatible with his will.
Will means that I may do it what I want. But my will may be restricted in practice by
some stimulations which are not physical barriers. These are moral norms or threats correlated
with moral and social sanctions for break out these norms (Schopenhauer 2004: 10-11). For
example, if I want to kill the neighbor who probably rape my daughter, I know and feel that I
can be punished and socially stigmatized so I think I do not commit that crime. My moral
freedom is relatively related to social morality which prohibits some acts, limiting the
possibility of my eventual moral choices. The field of moral choices is just restricted for my
fear of social stigmatization and alienation. Is that man still free? Schopenhauer could ask.
I would like to underline that in societies based on ethical pluralism there are different
moralities. Morality and choice of moral norms treated as mine are a part of our freedom.
These are so called autonomous norms because I choose these norms, accept them and
agree with them. It is just the moral freedom, as Schopenhauer could say.

3. The law as a minimum of morality (Hart, R. Dworkin).


Idea of the law as a minimum of morality is a defense of both ethical (moral) and
political (constitutional rights) liberalism in the current states nowadays. That is a legal and
constitutional standard in many modern democratic societies and states (Europe, North
America, South America, Australia and so on).
In doctrine of law (Hart, Ronald Dworkin) the law is often said to be an ethical
minimum or the law as a minimum of morality3 (Mason, McCall Smith, Laurie 2002: 147-

3
See MASON, J. K. & MACCALL SMITH, A. & LAURIE, G.T. (2002) Law and Medical Ethics, London,
Butterworths.

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148).4 Ronald Dworkin5 wrote about political morality or constitutional morality that No
legislator can afford to ignore the public outrage. It is a fact he must recon with. It will set the
boundaries of what is politically feasible, and it will determine his strategies of persuasion and
enforcement within these boundaries. But we must not confuse strategy with justice, nor facts
of political life with principles of political morality (Dworkin 1971b: 55-72). It must be a
social consensus which strictly establishes that some concrete immoral acts may be legally
forbidden or ordered. So, as Dworkin rightly argues, a conscientious legislator who is told a
moral consensus exists must test the credentials of that consensus. How to reach that
consensus? Dworkin says: The claim that a moral consensus exists is not itself based on a
poll. It is based on an appeal to the legislators sense of how community reacts to some
disfavored practice (Dworkin 1971b: 68). The social consensus problem concerns the
average member of one society who thinks rationally, too (but not the Clapham omnibus who
think only morally like the majority). The social consensus does not exclude e.g. the
prohibition or limitation of pornography because of rational reasons and arguments (Dworkin
1971b: 72).
Herbert Hart6 underlines that there are many personal moralities in society and socially
controversial cases as abortion or homosexual acts. Hart stresses that a man is a part of society
and cannot live without society. Some social rules are absolutely obvious. Hart writes: A
collection of individuals is not a society; what makes them into a society is among others
things a shared or public morality. This is as necessary to its existence as an organized
government. So society may use the law to preserve its morality like anything else essential to
it. But according to Hart, not every immoral act must be legally punished. He maintains that
No doubt we would agree that a consensus of moral opinion on certain matters is essential if
society is to be worth living in. He gives examples of legal prohibitions of murder or theft.
Hart thinks that if prohibitions of abortion or homosexual acts are enforced by the law,
morality which is perfectionist seems to be the law foundation (Hart 1971: 51). Laurence
Tribe7, an outstanding professor of constitutional law, also thinks that prohibition of abortion

4
As Lord Chief Justice Coleridge said in case R v. Instan, 1893, 1 QB at 453: It would not be correct to say that
every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation.
5
See DWORKIN, R. (1971b) Lord Devlin and The Enforcement of Morals IN WASSERSTROM, R. A. (Ed.)
Morality and the Law. Belmont, Wadsworth.
6
See HART, H. (1971) Immorality and Treason IN WASSERSTROM, R. A. (Ed.) Morality and the Law.
Belmont, Wadsworth.
7
See TRIBE, L.H. (1990) Abortion. The Clash of Absolutes, New York London, W.W. Norton.

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restricts womans freedom and is unjustified: woman has the right to decide not to terminate
pregnancy (Tribe 1990: 224)8.
Going back to Hart, it is very important to underline that he recognizes some values,
natural law in the law which must be respected by every law in order to be the law that is
socially acceptable. Hart9 (Hart 1961: 169) treats morality as a social phenomenon. He uses
the concepts such as <the morality> of a given society or the accepted or conventional
morality of an actual social group. To what does he refer these statements? He explains his
point of view as follows: These phrases refer to standards of conduct which are widely
shared in a particular society, and are to be contrasted with the moral principles or moral ideas
which may govern an individuals life, but which he does not share with any considerable
number of those with whom he lives. Then it is added that the main element in the shared or
accepted morality is rules of the kind. What is else, Hart (Hart 1961: 193-200), analyzes
that obvious rules come from natural facts. We are humans and we have the human
nature. What does The minimum content of Natural Law mean? It is universally
recognized principles of conduct which have a basis in elementary truths concerning human
beings, their natural environment, and aims (Hart 1961: 193). So even a positivist Hart must
retain that the values coming from the human nature are important and significant for the law
and the community. It is worthy to highlight this fact.
What is the most important for the liberals such as Dworkin and Hart they did not
agree with the law and morality based on intolerance, indignation and disgust. They
considered cases of enforcement of morality by the law in context of abortion, homosexual
acts and pornography, questioning legal prohibitions of these acts. It is obvious that we can
find common moral values and principles or rules in society. But it is not a perfectionist
morality which includes principles and rules such as: be a good man, be a good Samaritan,
help others, love all the people. It is rather a public or social morality understood as a
minimum of morality which is based on principles such as: do not kill, do not steal, do not
harm others, meet ones obligations, etc. The minimum of morality includes only fundamental
rules of human behavior and moral principles which make the peaceful cooperation in society
possible. In theory of the law as a minimum of morality there is no place for ethical

8
Compare liberal considerations about the right of woman to terminate a pregnancy: DWORKIN, R. (1993)
Lifes Dominion. An Argument About Abortion And Euthanasia, London, Harper Collins, pp. 3, 110, 241.
9
See HART, H. (1961) The Concept of Law, Oxford, Oxford University Press.

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perfectionism in the law. The rudimentary law purpose is not to make men better but make the
existence society tolerable and peaceful.

4. Freedom restricted by the law are we absolutely free? Mills and Kants
theories, and legal paternalism (G. Dworkin)
In fact John Stuart Mill10 developed political backgrounds for the liberal law which we
see nowadays. It, i.e. the law, according to Mill and his contemporary followers writing about
moral neutrality of the law, should be based on so called the harm principle. There are some
philosophical, moral and pragmatic reason to make the law based on the harm principle.
The law always interferes in our freedom. The interference may be justified or
unjustified. John Stuart Mill asks: What, then, is the rightful limit to the sovereignty of the
individual over himself? Where does the authority of society begin? How much of human life
should be assigned to individuality, and how much to society? (Mill 1971: 11). Mill answers
that the harm principle is the limit of interference of society in individual life. How does the
principle sound? The sense of the principle is that I may do everything if I do not harm others.
So I may drink too much and I will not be punished in the light of the law. If I kill someone, I
must be convicted and punished. If I steal your money, I must pay you. Mill gives an
interesting example of enforcement of morality: Suppose now that in a people, of whom the
majority were Mussulmans, that majority should insist upon not permitting pork to be eaten
within the limits of the country. This would be nothing new in Mahomedan countries. Would
it be a legitimate exercise of the moral authority of public opinion? and if not, why not? The
practice is really revolting to such a public (Mill 1971: 20). Mill does not accept such legal
regulations. Mill rightly asked in essay On Liberty what were the limits of the power of which
could be legitimately exercised by society over the individual. The Millian harm principle? Or
the Kantian Law of Liberty? Look at Kants idea of freedom that is extremely similar to
Mills theory, it seems to be so. In Kants philosophy11 freedom is also fundamental value
which must be respected by the state not founded on ideas of paternalism or religion. Barrier
of my freedom is freedom of others (Kant 1995: 19-20).12 How does this apply to our

10
See MILL, J. S. (1971) On Liberty IN WASSERSTROM, R. A. (Ed.) n Morality and the Law. Belmont,
Wadsworth.
11
See KANT, I. (1995) O porzekadle: To moe by suszne w teorii, ale nic nie jest wart w praktyce. Do
wiecznego pokoju. Projekt filozoficzny (On Saying: It May Be Right In Theory But Is Not Anything Worth In
Practice. To Eternal Peace. Philosophical Project), Toru, Comer.
12
Compare very interesting interpretation of Kants freedom philosophy and its consequences: RAWLS, J.
(2000) Lectures on The History of Moral Philosophy, Cambridge, Massachusetts, London, Harvard University
Press, p. 289.

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considerations? The conclusion to which we come is that the legal restriction of freedom must
also be justified in the field of moral principles, and Millian harm principle or Kantian
freedom principle are very interesting philosophical examples of justification for limitation of
the law based on ethical perfectionist or religious norms.
The limits of freedom about which Mill wrote are also correlated with problem of
legal paternalism. Gerald Dworkin13 understands paternalism as the interference with a
persons liberty of action justified by reasons referring exclusively to the welfare, good,
happiness, needs, interests or values of the person being coerced (Dworkin 1971a: 108).
Which cases are examples of legal paternalism? What restricts our freedom on the ground of
paternalism? Dworkin gives the following examples: laws requiring motorcyclists to wear
safety helmets, laws forbidding persons from swimming at a public beach without lifeguards,
laws making suicide a criminal offence, laws forbidding womens and childrens work at
certain types of jobs, laws regulating homosexuality among consenting adults in private, laws
regulating the use of certain drugs, laws requiring a license to engage in certain professions,
laws compelling people to pay a part of their income to Social Security Fund, laws forbidding
various forms of gambling, laws regulating the maximum rates of interest for loans, laws
forbidding dueling (Dworkin 1971a: 108-109). Realization of idea of paternalism in the law
causes restrictions of our freedom: physical and moral freedom. Restrictions may be justified
or unjustified and we must always consider justification of legal restrictions of freedom also
in the field of social or personal values. Every paternalistic regulation must be reliable
justified by reason of respect of human freedom and human dignity.
It sounds like a truism that freedom is limited by the state. We cannot take some acts
against somebody or something without the state repulsion and punishment. I cannot kill you
if it is not a form of so called necessary defense. I may kill somebody in the light of the law
if he attacks me and my life or health are in danger. We are not absolutely free in the light of
the law but we can feel absolutely free on the ground of our conscience or mind and our
system of values. Legal freedom is something more clear, direct and formulated than moral
freedom or feeling of freedom (on the psychological ground I may feel free, sitting in
prison).

13
See DWORKIN, G. (1971a) Paternalism IN WASSERSTROM, R. A. (Ed.) Morality and the Law. Belmont,
Wadsworth.

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5. Devlins idea about the law and morality. Conservative law.
Not only liberal but also conservative issues of the law are still important for the law-
makers. We should go back to Lord Patrick Devlins theory of law. Is not it better when the
law is rather based on so called the shared morality than e.g. only on the harm principle? This
morality that would the basis of the law requires from people much more that the harm
principle. The problem sounds: how to make people morally better, how to preserve the
traditional morality, shared morality, the morality majority of one society?
That is right that Lord Patrick Devlin 14 was a conservative English philosopher of law.
It should be said that it is necessary to use many quotations to analyze his philosophy of law.
Devlin asked: What is the connection between crime and sin and to what extent, if it all,
should the criminal law of England concern itself with the enforcement of morals and punish
sin or immorality as such? (Devlin 1971: 25). He attacked liberalisation of the law which did
not forbid homosexual acts. According to Devlin, homosexual acts must be forbidden and
punished. Institution of marriage as a part of the structure of our society and the basis of
moral code which condemns fornication and adultery must be protected by the law, even by
violence. Morality is a foundation of society and its existence (Devlin 1971: 24-48).
Without social common morality there is no society. Everybody knows what is moral
and immoral people have moral feelings and feel its immorality of behaviour in conscience:
Immorality then, for the purpose of the law, is what every right-minded person is presumed
to consider to be immoral. If society takes aim at being alive and exists no only by the
generation time, morality must be respected and the law must be based on the society
morality. If you break down morality, you must be punished because your immoral act may
influence on members of society and you yourself. Immoral acts such as abortion,
prostitution, fornication or homosexual acts must be forbidden by the law. Integration of
society and its uniformity seem to be a central point of Devlins thought: There is
disintegration when no common morality is observed and history shows that the loosening of
moral bonds is often the first stage of disintegration, so that society is justified in taking the
same steps to preserve its moral code as it does to preserve its government and other essential
institutions. There is no private and public morality. I do not think that one can talk sensibly
of a public and private morality any more than one can of a public or private highway,
Devlin says. Why is there no difference between them? Devlin adds that Morality is a sphere

14
See DEVLIN, P. (1971) Morals and The Criminal Law IN WASSERSTROM, R. A. (Ed.) Morality and the
Law. Belmont, Wadsworth.

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in which there is a public interest and a private interest, often in conflict, and the problem is to
reconcile the two. He believes that most people would agree upon the chief of these elastic
principles. There must be toleration of the maximum individual freedom that is consistent
with the integrity of society (Devlin 1971: 36-40).
In Devlins thought the morality is correlated with religion: Morals and religion are
inextricably joined the moral standards generally accepted in Western civilization being
those belonging to Christianity. Religious norms such as Christian or Muslim rules may be a
foundation of the law in Devlins theory. Devlin concludes: No society has yet solved the
problem of how teach morality without religion. So the law must base itself on Christian
morals and to the limit of its ability enforce them () without the help of Christian teaching
the law will fail. Responding to Harts critique, in which we can read that Devlin thinks that
morality can never be changed without the destruction of society, Lord Patrick thinks that If
morality is changed, the law can be changed (Devlin 1971: 28, 37, 48).
So, what follows for my analysis? First, even in conservative philosophy of law we
can find some aspects which make the law liberalization in socially and morally controversial
cases possible. Second, the conservative philosophers of law have serious difficulty in
proving that the society morality is never changed. Third, in spite of Devlins critique the
idea that society must be based on fundamental principles and rules, and there must be
necessary connections between making legal prohibitions and real danger to the society
existence (if the law liberalization would be), seems to be still alive and inspiring for lawyers,
philosophers, politicians. These theses on one hand are important for the liberals but on the
other hand mean that Devlin was not so silly man as he is now too often presented. He
followed the reason and the way of thinking of average member of one traditional society (the
Clapham omnibus that was a moral-legal concept of a rational man of Victorian moral era, I
would say).
Devlin really supported the idea of morally conservative law as a measure to preserve
one society. Even if his theses are a little exaggerated we cannot avoid the questions what is
better for the society morality in law-making process, what the shared morality means, what
to do with opinions of the average citizens, and whether politicians really know better than the
citizens how to make the law better, and where is their (politicians) legitimacy when
politicians actions are contrary to the society majority15. These issues are still open.

15
E.g. if 70 % of one society population supports a capital punishment for 30 recent years and the politicians
say: it is impossible to come back to this measure because it is not humanitarian and seems to be legally doubted
in the light of international obligations, then my question sounds: where is a democracy and a voice of the

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6. The kinds of enforcement of morality by the law.
It is obvious that even in morally and politically liberal states16 we have many kinds of
enforcement of morality by the state.
In doctrine of law 17 (Wasserstrom 1971: 6-9) we see different kinds of the
enforcement of morality by the law. These are the following kinds: penal enforcement of
sexual morality, nonpenal enforcement of sexual morality, nonpenal enforcement of
nonsexual morality, penal enforcement of nonsexual morality. The penal enforcement of
morality by the law uses penal and criminal measures such as fines, arrest, the jail
punishment. The nonpenal enforcement of morality by the law is based on civil and
administrative sanctions. Sexual morality relates to e.g. abortion, contraception, homosexual
acts, pornography, prostitution, and concerns a problem of human sexuality. Let us give some
examples now. Prohibition of homosexual acts between the adults is an example of the penal
enforcement of sexual morality. A lack of financial help for women aborting foetus
establishes a form of the nonpenal enforcement of sexual morality. On the other hand, the
nonpenal enforcement of nonsexual morality may be visible in e.g. judgment of guilt in the
divorce adjudication. Moreover, e.g. a fine for people not respecting religious celebrities
seems to be an example of the penal enforcement of nonsexual morality.
I think that many of these kinds of the enforcement of morality by the law are visible
in both authoritarian and democratic states. It does not matter what in fact is the regime. The
political system (regime) is not dependent on how more kinds of the enforcement are visible.
The problem of the enforcement relates to culture, tradition, customs, politics, and to a
problem what is the shared morality in one society. It is not the same in China and Poland or
Finland. In authoritarian China there is the one-child policy and parents are punished when
they have more than one child in the city or two children in the village. In the authoritarian
Sudan but also in democratic Poland and Ireland we have very conservative (restricted)
abortion law. It seems to be that the problem is more sophisticated, complicated and subtle
than one could even imagine! My intuition was that the authoritarian state (politically) implies
the conservative law (morally, sexually and so on) but really there is no connection between

nation? Vox populi non est vox Dei in a democratic state? On the other hand, as Mill teaches us, the majority may
be wrong because most of people are stupid at all. It does not mean that it is good to disdain moral feelings of
people who are the majority in one society.
16
Morally liberal state means morally liberal law (permissive regulations such as abortion on demand, divorce,
homosexual marriages, right to euthanasia and so on). Politically liberal state means democracy and rule of law,
constitutionally guaranteed. They are correlated, it seems to be so.
17
See WASSERSTROM, R. A. (1971) Introduction IN WASSERSTROM, R. A. (Ed.) Morality and the Law.
Belmont, Wadsworth.

10
these two factors (the regime and the law in socially and morally controversial cases), and
there is no a clear and simply pattern!

7. The law as a result of social compromise.


The problem of freedom shows us that the justification of legal rules in controversial
cases must be very deeply well-thought-out. In the world of postmodernity or postmodernism
it seems to be more a fundamental value than security. The area of freedom seems to be
generally still spreading and increasing (the liberalization of law, especially in sexual cases)
but on the other hand, we can easily see too many paternalistic regulations or rules concerning
functioning the market, so the process, I talk about, is rather sophisticated and incredibly
hermetic. The law must draw attention to this process and seek/find a golden rule in the
problem solution of coercion of people into doing something which is moral or socially
useful. The state does not have to punish for immorality if somebody does not harm others.
This principle may also have some exceptions. Look at a problem of the protection of public
morality and public-moral feelings in public sphere and places (e.g. prohibitions of drinking
or indecent behaviour in public place). But we must also understand that freedom and its
limits are relative to cultures, moralities, religions, traditions, local customs, etc. Legal limits
of freedom are part of social restrictions of this value in society. Freedom will be differently
understood in the Muslim countries and the European Union. In the contemporary states and
societies of the Western civilisation the law often is a result of compromise created in public
and social debate so the lack of perfectionist rules in the law seems to be natural or normal
although the law often begins to be noncoherent axiological system. For example, we may
consider why abortion for social reasons is legally forbidden but prostitution is allowed by
the law. Polish Criminal Code of 1997 prohibits abortion, referring to special legal act which
includes exceptions from this principle (1. mothers health or life, 2. defect of foetus, 3.
pregnancy as a result of crime - it concerns a rape and incest or when a girl is under 15-year-
old). If an axiology is a system of values conceptualisated in many legal provisions, we can
ask what is an axiological justification of such provisions about abortion. In the Polish law
prostitution is not forbidden but pestering somebody with an offer of the prostitution act is an
offence/misdemeanour. On the other hand, a pimp is a serious criminal. Legal provisions in
such controversial cases often seem to be a result of political or social consensus and
sometimes do not include axiological consistency, being an expression of axiological
compromise. I think that a lack of the axiological consistency shows the diversity of the
outlooks on life and the intricate origins of the culture.

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8. Conclusions. Good consensus... Rotten compromise? Clash of values? The
state of nature? Freedom outside.
Sometimes we could say that the law is like a fight between perfectionist morality and
absolute freedom. Enforcement of morality by the law is a part of legal orders. In Western
civilisation liberalisation of law in socially and morally controversial cases is spreading.
Looking at the history of law, we are often shocked by significance of changes in the
law and many legal institutions. There were no legal divorces before the French Revolution 18,
abortion was mainly regulated by the Church law, euthanasia was no problem in Greek
society, homosexual acts were severely punished in the Medieval Ages and to 2 nd half of the
20th century or were allowed in countries such as Rome, etc. We must understand the
achievement of discovery of freedom and some dangers correlated with that process. As
Batista19 writes: La historia es resultado de una masa enorme de necesidades y fatalismos
acumulados, en la que las intervenciones de la libertad tambien se hacen oir (Batista 1981:
275). It is true that the area of moral freedom is increasing. Legal regulations concerning so
called enforcement of morality by the law shows that historic process in the world.
Now I think of some additional but very significant issues concerning the sovereigns
decision as follows. This compromise I have mentioned above is still or often very rotten but
it may be such the way that it is good for the society (it means the heterogeneous society) if
the law is based on the compromise.. But what to do in the homogenous society where the
compromise is based on the decision made by20 the majority which is morally or religiously
conservative? Should not we respect this decision? Look at authoritarian Saudi Arabia law or
the laws in democratic Poland or Malta, Ireland, the Faroe Islands For example, I mean
abortion law. What would an argument from democracy or argument from the majority of
public opinion say to us? If the law made by the majority respects the minimum of freedom of
the minorities(And what does it mean? To respect of the minimum of freedom...). It really
is a hard case. But how much visible it is in the current world where not only heterogeneous
societies with liberal laws and legal protection of ethical pluralism appear! Legal pluralism
and legal diversity teach us that even strict and severe law in the field of socially and morally
controversial matters is possible and should be acceptable. Why? In different cultures also a
18
For example see more about divorces: SUENENS, C. (1961) Love and Control, Westminster-Maryland, The
Newman Press, p. 28.
19
See BATISTA, J. M. (1981) Reflexiones sobre los Valores de Libertad e Igualdad (Aspecto Filosofico y
Social) IN Memoria del X Congreso Mundial Ordinario de Filosofia del Derecho y Filosofia Social (I.V.R.),
volumen III. Mexico, Universitad Nacional Autonoma de Mexico.
20
It is enough that the society majority accepts the decision. It does not mean that it must make the decision by
referendums in every case, there are another institutional bodies or procedures to fulfil this gap, and formally
make it valid.

12
freedom is differently understood. There is no universal freedom unless there is universal law.
Even human rights are only formally universal, we know that in practice they are interpreted
and understood different ways. We also know that they are not ahistorical, in fact being a
result of development of natural rights theories in Europe and Northern America, from the
Ancient both Greek and Roman philosophy to the Medieval Ages and the 20 th century.
I see another problem, too, i.e. a clash of values (e.g. a freedom of woman to terminate
a pregnancy and a life of unborn child; full of sanctity human dignity and a right to terminate
a human life if you are incompetent, being seriously ill) and a possibility of so called the
cultural war between both morally liberal and conservative members of one society in the
West. We can observe these problems, this fight of the values, in some period of time, not
only in the streets, media and so on, but also in the courts and American judges or
politicians minds, in many states of the United States in the field of abortion after the Roe v.
Wade21 and entering the liberal permissive law into force, in the euthanasia rights
phenomenon and homosexual marriages field. That is the axiological fight for the law. I see
this fight in many verdicts concerning limitation of abortion rights in the U.S. (e.g. it
concerned teenagers, or rejection of refunding abortion action as medical treatment, or
cancelling some social rights in case of committing an abortion) after this famous precedent
(e.g. it is obligatory to analyze the following verdicts to know that it is an judicial opposition
to the Roe precedent: Danforth v. Planned Parenthood of Central Missouri22, Harris v.
McRae23, H. L. v. Matheson24, Hodgson v. Minnesota25, Rust v. Sullivan26, Webster v.
Reproductive Health Services27). Similar process appear in Europe e.g. in European Court of
Human Rights in Strasburg and its jurisprudence (not all judges are liberal, we can easily see
it in the separate opinions to the verdicts about the right to abortion).
Well, freedom is a fascinating theme for a philosopher of law to discuss: I may be free
in a prison (being legally punished, and having some technical barriers to move); I may be
free, breaking moral (private, public) rules such as Thou shalt not commit adultery. But if
am I really free in these cases? And what the real freedom mean? Is it a false or true freedom?
And what do they mean? There are so many questions and another more subtle and
complicated or sophisticated variations of issues to mention. What I know freedom is a wider

21
Roe v. Wade, 1973, 410 U. S. 113.
22
Danforth v. Planned Parenthood of Central Missouri, 1976, 428 U.S. 52.
23
Harris v. McRae, 1980, 448 U.S. 297.
24
H. L. v. Matheson, 1981, 450 U.S. 398.
25
Hodgson v. Minnesota, 1990, 497 U.S. 417.
26
Rust v. Sullivan, 1991, 111 S.Ct. 175.
27
Webster v. Reproductive Health Services, 1989, 492 U.S. 490.

13
category than the law or the morality. That is the reason it is restricted by both the law and the
morality to retain taboo because taboo, i.e. a system of orders (moral and legal), is to
preserve a civilization or a state of things in one society. I do not mean freedom based on
religious truths (Catholic and so on). I mean freedom as internal value which becomes
something external, too. Freedom is not in the law, it is outside. And somewhere outside
freedom is a servant of the public morality and own conscience (my private morality). She is
very wicked and slothful servant. She wants to taste both what is good and what is evil. Even,
if we flash on Mills harm principlefreedom may not accept this minimum of social
cooperation and a principle of order. Freedom is also outside the morality, freedom is in a pre-
human and relatively wild heart of a man, in a core of deep life, at the center of the law of
nature, and the most fundamental principles of natural law about which Grotius 28 wrote
(Grotius 1901: 68-77). We are to protect our businesses and interests including life, health,
property, family, and so on (in Grotius theory). The another point is that interpretation and
conditions of freedom are very ingrained, deeply embodied and rooted in tradition of one
society or community, and in this sense I support the legal pluralism ideas. This tradition
which influences on the morality, of course, is a ballast for freedom. Freedom is not legally
universal (and it does not matter whether it would be even in the future), as I said earlier, but
is humanly universal, being in the core of our hearts, desires, thoughts, actions.
Freedom will be always contrary to the law made by one state and the morality made
by a society in a historical development (public morality) or accepted by a conscience (private
morality) or given by God (religious morality). The paradox is that the law and the morality
will be always trying regulate a human freedom that is really fallible but necessary process. If
we do not want to come back to the (wild, barbarian) state of natureWhere all liberty and
force are waiting for us one more, again. There we were really free persons, ever in the past.
And after this philosophical approach I must highlight some political issues at the end.
I think that the law is always arbitrary because it seems to me it is result of lobbies activity,
political games and consensuses, conventional acts, political power of concrete persons, and
some political, social, economic influences. And our freedom is always between the law and
the morality, overlapping and exceeding them, jumping to be free, to the kingdom of freedom.
I do not know whether one clever man, a sage of the sages, found or would find a solution
how to resolve a huge tension between freedom and normative systems (the law, the morality,

28
GROTIUS, H. (1901) The Rights of War and Peace, New York, The Online Library Of Liberty (Accessed
28.02.2013).

14
and e.g. the religion). I think this problem is not possible to resolve in the democratic states.
We have only some projects, conventions, borders, consensusesDemocratic power is as
arbitrary as the authoritarian one in this field. We cannot predict anything. Nobody would
have imagined in the 1970s in the U.S. that a number of legal abortions will be one million
per a year, since 1975 to nowadays. Nobody in Poland could even imagine 30 years ago that
in democratic Poland an abortion on demand will be punished in comparison with the
communist times when it was allowed (since 1956 till 1993).
What is the most important we must realize that it is the fact that our human
possibilities to resolve some problems concerning legal and moral regulation of human
freedom are particularly tricky. Well, I can say like Epictetus well enough that I am free
because I have no too much desires, not caring about both legal and moral issues too much as
wellMaybe that is the better flexible way.

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Verdicts:
R v. Instan, 1893, 1 QB at 453.
Roe v. Wade, 1973, 410 U. S. 113.

16
Danforth v. Planned Parenthood of Central Missouri, 1976, 428 U.S. 52.
Harris v. McRae, 1980, 448 U.S. 297.
H. L. v. Matheson, 1981, 450 U.S. 398.
Hodgson v. Minnesota, 1990, 497 U.S. 417.
Rust v. Sullivan, 1991, 111 S.Ct. 175.
Webster v. Reproductive Health Services, 1989, 492 U.S. 490.

17