This chapter introduces the central questions that are explored in the book. Not only do legal systems enforce morality but they ought to do so. The legitimacy of legal prohibitions on a host of moral wrongs such as murder, rape and burglary is widely taken for granted and not subject to serious dispute. Since legal systems do and ought to enforce morality, the interesting question is not whether the law should enforce morality. The interesting questions concern what parts of morality the law ought to enforce, the considerations that justify its enforcement, how the law ought to enforce morality, the relationship between the legal and social enforcement of morality and whether there are moral limits that constrain the enforcement of morality, and if so, what are the nature and justifications for these limits. In the course of introducing these questions, the chapter distinguishes different senses of enforcement, as this notion applies to both legal norms and social norms more generally. It distinguishes a broad from a narrow understanding of morality and further distinguishes critical from social conceptions of morality. The chapter concludes with a brief discussion of the relation between principled limits on the enforcement of morality and pragmatic reasons for imposing such limits.

There is no getting around the fact that we live in a social and cultural environment and there is no denying the fact that the laws of our society deeply affect its character. From the fact that law impacts the environment of those who are subject to it, it does not follow that legal officials should attempt to improve its ethical character. This chapter presents a presumptive case for why legal officials are not only permitted but also have a duty to do so. Ethical environmentalism is the political project that aims to satisfy that duty. After clarifying the notion of an ethical environment, and relating it to the aspirational ideal of the common good of a society, the chapter argues that ethical environmentalism is supported by considerations of fairness. The relation between fair treatment and neutral treatment is then explored and clarified. Ethical environmentalism presupposes a public/private distinction. The shared public world, as contrasted with the private thoughts and activities of individuals, defines its scope. With that in mind, the chapter distinguishes two forms of legal moralism, character-centered and status-centered, and discusses how each form relates to the project of ethical environmentalism.

This chapter continues the defense of ethical environmentalism by introducing the integration thesis. This thesis holds that the ethical, interpersonal and impersonally valuable dimensions of morality interlock in ways that frustrate efforts to focus exclusively on one without attending to the others. The case for ethical environmentalism would be considerably strengthened by the truth of the integration thesis. This chapter presents a series of arguments in support of the integration thesis, each of which builds on the integral connection between distributive fairness and the common good of a society. Policies and laws that at first pass do not appear to be distributive are shown to have distributive effects on the lives of those who are subject to them that merit consideration at the bar of fairness. Given the truth of the integration thesis, the chapter next argues that the project of ethical environmentalism lends substantial support to certain forms of legal paternalism, state support for impersonal goods, such as natural beauty and human excellence, and state support for the goods of tradition. The chapter concludes by relating the project of ethical environmentalism to Devlin’s thesis that a society may use the law to preserve itself.

A high point in the modern debate over the enforcement of morality was reached in the UK in the late 1950s and early 1960s. Consisting of a spirited exchange of essays and lectures between Patrick Devlin, a distinguished sitting judge, and H. L. A. Hart, a professor of jurisprudence at Oxford University, the debate was sparked by the publication of a controversial report commissioned by the British government that recommended that the criminal law in the UK be liberalized regarding prostitution and “homosexual offences.” The Hart/Devlin debate centered on sexual morality, but the issues it raised pertain to a much wider range of concerns. This chapter pays particular attention to the distinctions and arguments the debate introduced concerning legal moralism and legal paternalism. Devlin defended a version of legal moralism. Hart rejected legal moralism, but granted the permissibility of legal paternalism. The chapter distinguishes critical legal moralism from the social legal moralism that Devlin proposed. It argues that a plausible form of legal moralism must be informed by critical morality, not social morality. It also defends the plausibility of moral paternalism and legal moralism.

Proponents of the harm principle often appeal to a notion of personal sovereignty in setting out their position. This notion helps to fix the application of the harm principle. Critics of the harm principle seize on this point and argue that, once a principle of sovereignty is introduced, it can do all the work that needs doing. Appeals to harm become otiose. Further, the critics contend, the harm principle cannot explain the impermissibility of certain “harmless” wrongs, such as those involved in harmless trespass. This chapter assesses this sovereignty-centered critique of the harm principle. It argues that neither the harm principle nor the sovereignty principle enjoys priority over the other. The two principles complement each other with neither meriting a privileged position. The chapter then discusses the content and stringency of the sovereignty principle, and its relation to the Volenti Maxim, which holds that a person is not harmed or wronged by that to which they consent. The critical discussion of the Volenti Maxim, in turn, reveals limits to the sovereignty principle.

Personal liberty can be viewed through the lens of the good or the right. Do we value liberty because it is part of our good, or a means to our good, or do we value it because it is our right to have it? This chapter considers the value of liberty from the standpoint of the good. The ethical environmentalism defended in previous chapters, it argues, must be sensitive to the value of liberty as a personal good. In an important sense, people only lead good lives if they lead free lives. The chapter begins with the common idea that there is, or ought to be, a general presumption in favor of liberty. It next considers deeper ideals of liberty, such as autonomy or authenticity, that can be appealed to in order to explain liberty’s value. These deeper ideals are shown to be genuine ideals but their value is qualified in ways that are not widely appreciated. The chapter concludes by considering expressive or conventional reasons for opposing coercive or manipulative liberty-reducing interventions. It argues that these reasons require a deeper explanation, and one that pulls us beyond the value of liberty understood as a personal good.

From 1764 to 1776, there was a political crisis regarding the authority of the British Parliament over America. Yet the British case for parliamentary sovereignty was not particularly clear, and by 1774, most Americans argued that Parliament had no authority over internal affairs in America. Even English politicians and lawyers, such William Pitt the Elder and Lord Camden, argued that Parliament had no ability to tax the American colonies. In 1776, the American colonies declared their independence and a war of independence ensued, that Britain lost. But what could explain this disagreement over sovereignty? This chapter looks to several factors for explanation. These include the fact of Britain’s uncodified Constitution, which rendered it unclear which laws were in any case ‘constitutional’. There was also disagreement as to how the British Constitution applied in the colonies. Many Americans asserted that only a shared monarch connected American colonies legally to Britain and to each other, and that colonial assemblies were comparable to Parliament. There was, however, no acceptance of this in Britain, where the doctrine of undivided and unlimited sovereignty was increasingly employed by those in power.

The legacy of nineteenth-century constitutionalism hampers the effective realization of democracy in the UK. Bagehot’s eulogizing of the fusion of the executive and legislature now appears to grant far too much power to the government, given the context of parliamentary sovereignty and a ‘first past the post’ electoral system. But democracy is a far richer notion than one which requires merely that power should be exercised by a majority of elected representatives. Democracy also requires that individuals and minorities have certain fundamental protections from majoritarian interests. Democracy in Britain has also been weakened by vagueness as to the role of direct democracy (and how it relates to popular sovereignty) and referendums in the UK. The UK Cabinet Manual (which, absent a codified Constitution, is the closest Britain comes to codifying its constitutional principles) does not specify the role of referendums in British governance, nor suggest that a referendum vote might override other constitutional principles. However, the Brexit referendum, although advisory in status, was nonetheless perceived as binding and implemented. If referendums are to become a more frequent feature of British constitutional practice, there is an urgent need for clear principles regarding their use to be articulated.

The concept of federalism, and examples of federalism, are considered. Although, over 100 years ago, British Imperial federalists argued the empire must ‘federate or disintegrate’, the imperial federation movement did not succeed. Nor did its close relation, the ‘Home Rule All Round’ movement. Instead, the UK has become a devolved State, which transfers power from the centre without relinquishing sovereignty. The main obstacles to federalism in the UK appear to be the ‘England problem’ and parliamentary sovereignty. It has long been recognized that the disproportionate size of one federal unit can destabilize federalism by affecting the capacity of other territorial units to influence central government. However, the main obstacle lies with an insistence on preserving absolute parliamentary sovereignty in the UK. Dicey insisted that ‘limited sovereignty’ was a ‘contradiction in terms’ and that federalism was ‘absolutely foreign to the historical and, so to speak, instinctive policy of English constitutionalists.’ But this chapter argues there is no reason why sovereignty must be understood only as unlimited and indivisible. The obstacle is a lack of political will and not legal impossibility.

Unions take a variety of forms and it is not always clear what species of legal entity one is dealing with. They need not require a unitary State and may exist along a spectrum of State connectivity, from an affiliation of separate States, through to their complete fusion. This chapter examines other Unions – either past, for example Austria-Hungary, or present, such as the USA and EU. The UK Union itself only dates from 1707, is voluntary in nature, and (unlike some Constitutions) there is no legislation prohibiting secession by one part of the UK, nor any constitutional provision asserting and mandating constitutional integrity. This chapter argues it is preferable to understand the UK as a ‘Union State’ – that is, a State where the centre does not directly control every part of the territory – rather than unitary in nature, because there are different constitutional arrangements in different parts of the UK. Unions tend to do better if more elastic and less constraining. But current understandings of UK parliamentary sovereignty make such elasticity very difficult for the UK Union. The doctrine of unlimited sovereignty places an almost insurmountable barrier to resolution of issues threatening the Union today, particularly those of devolution.

There was no legal definition of the British Empire and it possessed no explicit constitutional meaning. The empire was diverse and incoherent and terminology was not very clear. The terms ‘colony’, ‘dominion’, ‘possession’, ‘plantation’, and other expressions were used in different ways at different times. Indeed, an anti-formalist attitude tended to prevail – often eschewing formal law in favour of informal assurances, customs, and conventions. There was no attempt to establish a uniform legal code. And the sovereignty of the Parliament in London was only one of many types of sovereignty that existed. Much of the British Empire lent itself to a more pluralistic type of sovereignty – one that was divided, shared and indeterminate. Indeed, it was likely that power was the only unifying factor underlying the empire, aided by British naval supremacy, and the fact that, in the nineteenth century, global communications were predominantly in British hands. However, that power could not be derived from a unified, coherent account of legal and political sovereignty. And power by itself lacks legitimacy – it must be validated by something else – which is where sovereignty becomes relevant, in providing that grounding. Yet, the claims of sovereignty made by the empire were often mutually self-contradictory.

The legal and constitutional relationship between Ireland and England (and latterly Britain) was unclear for many centuries. Although Ireland enjoyed a good deal of legislative sovereignty under Grattan’s Parliament from 1782, the Acts of Union in 1801 set up direct rule from Westminster. During the nineteenth century, there was a campaign and draft legislation for Irish Home Rule (which Dicey, an ardent unionist, vehemently opposed). This campaign is worth reconsidering in the Brexit/Scottish independence context, given the varied legal and constitutional arrangements that were explored and vigorously debated. However, Home Rule never came about, rendered pointless by subsequent events. Since the Belfast/Good Friday Agreement and devolution in 1998, Northern Ireland has a had a variegated but pragmatic settlement of consociation and compromise quite different from the traditional British constitutional settlement. The EU has played its role in the peace process, providing structures for its continuation. Brexit now presents considerable challenges for Northern Ireland and the Republic.