Events - 01.12.2016 - 00:00 

Criminal law: how much morality is appropriate?

What is the relationship between law and morality? Do they have to be considered separately from each other? And what are the implications when moral pressure determines laws? – A conference at the HSG looked into these questions.

2 December 2016. The Swiss Association for Philosophy of Law and Social Philosophy (SVRSP) met for a conference at the University of St.Gallen on 1 and 2 December. The lectures and discussions focused on the relationship between "Criminal Law and Morality". Topics dealt with included populist influence which most recently resulted in new laws such as the implementation of the life-long custody initiative and the deportation initiative.

A relationship fraught with tension

The first speakers’ lectures made clear that a great deal about the relationship between law and morality had been discussed and disputed in the course of history. "The relationship between criminal law and morality is complex. There are elements which separate the two, and elements which link the two," explained Prof. Dr. Kristian Kühl from the University of Tübingen. The fact that the relationship between legal and moral norms had been fraught with tension for centuries, was also underlined by Prof. Dr. Lukas Gschwend, Vice-President for Teaching at the University of St.Gallen.

The lectures and discussions revealed that law and morality are indeed independent of each other. Ethical norms do not make legal norms, nor vice versa. In addition, there is no independent instance before which an infringement of a moral norm is actionable. Then again, law and ethics can probably not be completely separated either. A legal system which systematically clashed with ethical rules would probably have little stability and would hardly be acceptable.

Moral pressure by the general public

It was emphasised at the conference that in some cases new laws were enacted and existing laws were reformulated or amended because there was strong moral pressure in society. This revealed that societal morality and legal regulations were interlinked to a certain extent. It had to be made clear, however, that moral ideas might enter into laws but that the law was unable and unwilling to prescribe any morality. "Law is actionable before a court of law, morality is not."

Prof. Dr. Martino Mona from the University of Berne referred to initiatives which in the last few years had been adopted by the voting public against the will of parliament and government and against the unanimous conviction of experts in criminal law. This was an actual polemic. If the popular will tightened criminal law, this led to considerable tensions between the principles of the constitutional state and democracy. The problem was that citizens made laws for "the others". When a law was drawn up, however, legislators had to assume the perpetrator’s perspective. "One must also want a law to apply to oneself." If this were not done, the result was selective legislation that was completely disproportionate. "It then doesn’t concern 'us' but only other people, whom we ourselves will never be and to whom we can often hardly relate at all" – foreign nationals being a case in point.

This aspect was taken up and illustrated by further speakers. The debate about the Act on Excessive Speeding revealed, for instance, that at some stage people realised that it did not only apply to young men from Balkan countries but also to themselves. It was also emphasised that when lay people demanded tighter laws, they often failed to take into consideration superordinate law or achievements like the European Convention on Human Rights.

Politicisation of criminal law

Dr. Patrick Guidon, Vice-President of the St.Gallen Cantonal Court, expressed his regret about the politicisation of criminal law and sentencing. He pointed out that an ever longer list of penalties was not a deterrent but watered down the core criminal law. "Rules which keep changing are difficult to communicate. If, however, people are no longer able to understand them, the question arises as to whether the penal system is fit for purpose." Also, the opinion that criminal law was a "panacea" for the elimination of social grievances was wrong.

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