How I Learnt to Love the Law

The Rev Gregory Morgan. © Catholic Archdiocese of Sydney. Used without permission.

Do you like jurisprudence? There’s a likelihood that you responded to that question with a rather visceral reaction. (Let’s ignore the far greater likelihood that you didn’t respond at all.) Unlike every other subject, it feels uniquely repressed in its application. Commercial lawyers will draw upon contract law skills, prosecutors will consider their knowledge of criminal procedure every day, and constitutional lawyers are duly bound to administrative law principles; but legal philosophers seem to sit in a realm of their own.

To bridge the gap between jurisprudence and the rest of the law, The Brief is proud to present a conversation with Fr Greg Morgan. Fr Greg, having completed his PhD on the topic of jurisprudence and theories of natural law at Oxford, now serves as a Catholic priest in the Archdiocese of Sydney.

The question ‘What is Law?’ has been asked from generation to generation, from Crito to Hart. Its ubiquity can seem disproportionate to the modern law student. What is the importance of this question, and why should we continue to ask it?

Our understanding of the law and our application of the law are intimately connected. If we don't have a clear understanding of what the law actually is, it's not surprising if we see a complete breakdown in how the law is applied. The question ‘What is law?’ is a gravely important question, simply because the way we answer the question has so much power over the social fabric.

We’ve seen a number of thinkers who consider law to be a set of mere conventions [positivists], or a power game [Marxists], or something entirely divorced from reality [postmodernists, anti-realists]. Is it any surprise that, alongside the popularity of such thinkers, the law became more contradictory? That it was ignored, exploited, and abused? To the postmodern mind, contradictions point towards a greater truth, but the problem is that self-contradictory systems are profoundly unstable in the meantime. Human beings can't live according to two opposing truths.

To understand what the law is, it seems necessary to understand why it exists? Where does it come from, and what causes it to change?

Our laws and our culture are a two-way road.  To a certain degree, opinions within society can cause the law to change, where lawmakers will rewrite laws to accommodate changing cultural phenomena. However, it’s also true that people's moral values and their views of the world are so often shaped by the law. The law has a certain authority in the lives of people, and so any fragmentation in the legal system is a reflection of a fractured society. In the absence of an existing overarching unifying factor, people will try to make sense of the raw data, which can then be filtered down into various new ideologies. If the law is contradictory, it is no surprise that the resulting ideologies can be contradictory.

How can we work to prevent the vicious cycle of fragmented laws and a fractured society from growing stronger?

What I would hope is that people ultimately try to make objective claims based on reality, and then use that as a basis on which laws are established. No one wants to say ‘The law is simply a power game’ when they’re establishing a law, even if they believe that it is. The law can't be just another social phenomenon. The law has to be a bulwark against cultural change that is driven by emotivism or faddism, and this is where jurisprudence is fundamental.

In our world today, discourse is breaking down. For example, we can look at the rhetoric surrounding the concept of equality or liberty and our desire to respect these principles in law. If we're not clear on the definition and the purpose of the law, our laws will be vulnerable to the abuse of power. We should think about going back to that old Platonic idea that, ultimately, the law has to reflect something of reality. It seems like a big metaphysical jump in today's world, but we already try to bring our thinking back to reality: we appeal to nature, we talk about the state of affairs [environmental activism or the prescriptive ideal of peace enunciated by the UN]. Despite all the theoretical postmodern challenges to the concept of a common reality, we haven’t stopped relying on it.

If jurisprudence is so important, why do lawyers and law students rarely consider it?

Something that I’ve observed is that law students would much rather learn about what the laws are rather than what they mean. The deeper ethical questions (which you’d hope that lawyers are thinking about!) only bubble up when you ask the typical questions that jurisprudence asks. It’s a microcosm of society today. What are the most important questions in our life? Most would probably go along the lines of ‘Why do I exist?’, ‘What happens when I die?’, and ‘How can I grow in virtue?’ And yet, it’s seldom that people seriously think about them. We're conditioned not to think in our modern frenetic rat race.

For lawyers, there’s a particular danger in this. You can learn the precedent, you can learn how to present yourself, you can fill your head with the opinions of others and all the while never think: ‘Hold on. What makes a law a law? Are they the mere whims of a legislator or are they related to the common good? Are laws merely conventions, or do they reflect something deeper about reality?’ Now, I don't mind if you end up with an opinion that's completely different to mine, but it is a responsibility of every law student and every lawyer to hold an opinion.

I’ve noticed a sense of apathy to the most important questions of life. Students, generally, tend to be rather apathetic towards jurisprudence. When we study jurisprudence, what often comes up to the surface are questions that we would rather avoid — but the fact that we want to avoid them is generally a sign that these are rather important things to address.

What would you suggest that students do if they want to learn more about jurisprudence?

I am convinced of the value of conversing with those who hold opinions antithetical to my own. Something that I really appreciated about Oxbridge was that, as a priest, I was rubbing shoulders with people who held very different opinions. I was able to appreciate the depth of thought that was there, rather than seeing them as ‘a positivist’ or ‘an example of empiricism’. A good dialogue presupposes that both participants are trying to search for the truth, and my conversational partners were genuinely trying to do so.

The sad thing is that people don't converse about these topics anymore. We’ve slowly convinced ourselves that the truth is unknowable or undesirable. As a result of that, we've given up something that's essential to our human freedom. Real human freedom is to be convinced that you can engage your mind to think about the biggest questions of life and to try and find out if there is a deeper significance. But, it’s hard, challenging work, and it’s easier to try and build an artificial consensus. We know from experience that it doesn't work; an artificial consensus is always going to be broken.

How would you suggest beginning the conversation, granted it’s an inherently personal subject?

When you’re speaking to people you disagree with, you've got to understand them. That’s half the issue — we don't invest enough in trying to understand the opinion of ‘the other’. If we don’t understand their opinion before engaging them in battle, we create battlegrounds that are simply not there. So, before you form any underground movements — which I'm all for, by the way — it's important that we actually know what's really going on. Why do people think that way? Why do they say those things? This is why learning about jurisprudence or studying philosophy is so important — the real battles are battles of ideas.

What is most fundamental is respect. That's part of the principle of charity, I believe. Part of talking is coming to the understanding that the other person has thought their beliefs through. I might completely disagree with this person. I might think that what they're doing is wrong. But the more you understand about why they think the way they think, the more effective you’ll be at learning about the world. At the very least, you’ll be far more effective than someone caught in a screaming match.

Are there any particular pieces of advice you’d give regarding discussion?

There’s a great value in forming little communities for discussion. University is such a wonderful place to find people where you can have honest conversations. The people that change the world are, very often, a rather small group. Think about the influence of the Frankfurt school, a group of intellectuals who were trying to envisage a world emboldened by Marxian principles. There should be a level of excitement, a sense of possibility, but it all does depend largely on being in the correct state of mind. You’re trying to really understand, you’re informed, and you’re conversant with those that you might think are your interlocutors or all views that are different to your own.

It’s also important to talk within what we might consider our own groups, to find out where and why we disagree with those closest to us. For example, in the natural law camp, there are debates as to which universal system provides the best reasons for specific moral laws. If natural law theorists violently disagree as to the nature of that system, they can’t expect to be found persuasive as a whole by people who don't even share those basic foundations.

We have to appreciate and understand ideas, even those that we don't agree with or those that we think are irrational. Before we say anything, we need to understand what our interlocutors think and in what words they express themselves . Otherwise, any dialogue that we attempt to enter into will be completely ineffective; we’ll just end up talking past each other.

On a different topic, how relevant is jurisprudence for the working legal professional? Can it even be useful?

The reason why jurisprudence is so significant is because law reflects the heart of our society. The law can change the ways in which people behave and the ways in which they think about morality. The law is a powerful medium to do that, which is why governments are so focused on changing law. Altering legislation can help in regulating behaviour.

You can often be lulled into thinking that what you do at work has little bearing, but there are great existential questions being raised, and it would be prudent to at least be aware of them. When you're aware of them, you'll be able to understand whether something requires a bit of further reflection, or even whether something is truly outside your understanding that requires further consultation. Or, more likely, whether it’s something that you could just get on with.

Within your career, you're inevitably going to come across situations where you feel like there's something ethically problematic. There’s a variety of ways you can be challenged like this — maybe it’s how you're using the law, or maybe it’s how the law presents itself. In those moments, do you simply go through the flow and say, ‘Okay, I can apply this precedent or that statute to make my life easier?’ Or do you have the intellectual courage to say, ‘There's a problem here that needs to be addressed?’

In day-to-day work, given the gruelling working conditions of many legal environments, how can a lawyer act ethically while delivering results?

It’s difficult to gauge how far you should go in considering the merits of a problem. I'm not expecting lawyers to sit at their desks while reflecting on every case before them — that's the job of a philosopher. But, to some extent, we've all got to be philosophers. We’ve all got to think about what it's we’re giving your life to. In some respects, it's an ongoing process that should be a part of being a lawyer.

Of course, the extent to which you’re free to consider the law depends on the context and your own particular scenario. However, even being cognizant of the bigger questions pressing against us is a step in the right direction. Just choosing to consider those questions that we might like to avoid because they get in the way of efficiency, making money, and so forth.

In day-to-day work, given the gruelling working conditions of many legal environments, how can a lawyer act ethically while delivering results?

A lot of what I’ve been talking about might be labelled utopian. The idea of lawyers, and even the law at large, both have quite a negative profile today. In the public imagination, lawyers are often negatively distinguished from so many other professions, whether it be a priest or a real estate agent. And I think it's because the law seems to be a field so devoid of ethics.

The fruit of legal positivism is that the law doesn't really have much to do with ethics. The is-ought distinction makes sure of that. But ideas have consequences. A generation of students who have had the differences between the law and ethics drilled into them aren’t going to be the most effective when tasked with being ethical in their day-to-day work.

In reality, lawyers are intuitively influenced by ethics, even when they believe that it shouldn’t be the case. It doesn’t necessarily involve abstract metaphysical debates. It just happens to arise when a lawyer works. The nobility of the legal profession and its capacity to be a force for good in society aren’t impossible to maintain when you separate the law and ethics, but they’re not as sustainable. The natural law will act against lawyers when lawyers act against the common good. So, again, it's a two way process. The lawyer should still act in accordance with the laws that reflect the common good. If a written law is unjust, then it behoves us to do something about it.

A law may have been promulgated and generally considered thus, but if a law does not promote the common good, then it's simply not in tune with reality. So, the problem ultimately lies with the law. I wouldn't want to attribute sin to anyone, but the reason that the law itself is so vulnerable to misinterpretation or abuse is simply because of wilful ignorance or malicious intent arising from our own moral shortcomings. The greatest sin of a lawyer is refusing to recognise the nobility of their profession by refusing to reflect on the very nature of the law itself.

This article was originally published under the title ‘A Brief Conversation with the Rev Dr Gregory Morgan: How I Learnt to Love the Law’ in The Brief Edition 2, 2024 — Ceci n’est pas une loi.