Philosophical Moot Memo (Jurisprudence), Essays (university) of Law

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PHILOSOPHICAL MOOT

MEMORIAL

Aanandini Thakare (18010477)

Section A

The facts of the case are that there was an act passed by the state of Murky, called the ‘Decency Act’, hereinafter referred to as the DA, which stated that citizens were not allowed to wear clothing that was ‘revealing’ (nothing that shows skin above the knees or elbows, or below the neck and also dresses that were figure hugging) whether in the privacy of their own homes or in public spaces. This act was challenged by the appellant in the High Court of Anatal on the basis that it violated the right to liberty and privacy. The court held that the right to life included the right to privacy, and that state could not control what people wore in the privacy or their homes. However, it said that that law could be regarded as valid in public spaces as that was within the reasonable restriction of public morality. An appeal has been brought to the Supreme Court challenging this, praying that the DA is unconstitutional in relation to even the public sphere as it violates the people’s right to liberty.

In this essay, we shall be considering three issues, they are as follows-

a. (^) Whether there is a case of judicial overreach by the High Court of Anatal in declaring the part of the DA that regulates clothing people wear in their homes to be void as Right to Privacy would apply?

b. Whether the High Court of Anatal was right in saying that the law was valid with regards to public spaces as this was within the reasonable restriction of public morality?

c. If morals should be reflected in law?

As we all know, we follow the doctrine of separation of powers, this means that power is divides between different branches of the government, i.e. Legislative, judiciary and executive. This is done to ensure that there is no abuse of power and no unfair accumulation of power in the hands of a few. The functions of each branch are well defined, the legislative is tasked with the creation and/or amendment of laws, the executive is tasked with the enforcement of such laws, and the judiciary’s duty is to interpret existing laws and decide upon cases. The State of Murky has argued that by saying the right to privacy applies, and the state could not regulate what the citizens wear in the privacy of their own homes the High Court has engaged in judicial law making, which it has no right to do and would thus amount to judicial overreach. Now naturally, where separation of powers, as stated earlier is followed, judges cannot be allowed to make new law.

In this regard, Dworkin states that judges do not have discretion and are bound by the existing body of laws and must limit their decisions to existing law and statutes. They do not have the power to create new law, and even in hard cases they may only have discretion enough to interpret the existing law. He goes on to say that by allowing judges to have the discretion to create new law, the new law would function retrospectively, effectively meaning that the parties would be subject to law that did not exist at the time the committed the offending act, and which was created by an unelected body of judges. This would clearly be undemocratic. 1 However, he also states that even though judges do not haver the right to make new law, they are well within their rights to interpret the law and decipher it’s true meaning by examining broader legal principles behind the law. Thus applying this to the case at hand, we see that while the judges cannot add the right to privacy to the constitution, they were be well within their rights to interpret the Right to Life and Personal Liberty enshrined in Article 21 of the Constitution of the State of Murky to include within its ambit such a right

1 James Allan, “Legal Interpretation and the Separation of Law and Morality: A Moral Sceptic's Attack on Dworkin”, 26 Anglo. Am. Law Review 405 (1997)

others in the society. To the argument that it could offend the traditional morals of the society, Hart would respond that just because the majority of the society takes a certain moral standpoint, it need not mean that that particular moral standpoint is the right one. And, if indeed, the legislature would wish to formulate laws that would cater to the views held by the majority on the concerned topic, in this case ‘public morality’, then they would have to base them on views by the standard of a reasonable man. Let us examine if in fact the DA can meet this standard - It is argued by the state that the DA should apply even to the private sphere of a person’s home. However, the home would also include one’s own shower, would the act then mandate that we must adhere to this dress code even whilst bathing? Surely, this cannot be held to be a view that a reasonable man would take. Further, how is the state to guarantee that such an act would be followed by any sanction? Bentham and Austin’s command theory of law says that legal command must come with sanctions that will be imposed upon violation of its provisions, as these would be what would motivate compliance with that particular law. However, how is the state to check what each individual is wearing at all times within his own home and then impose sanctions on them? 5

Even in the public sphere, one must take into account that clothing is not always chosen just to meet aesthetic wants of a person or to keep up with trends in society, many a times functionality is also a big factor in choosing what to wear. Can one then reasonably argue that even the attire donned by professional athletes would be governed by this? In sports, range of motion is essential, and this often cannot be achieved by wearing baggy clothes that cover one from head to toe, and thus, banning such clothing would effectively stop people from pursuing that particular sport, and thus lead to the infringement of their right to practice any profession guaranteed under Art 19 of the Constitution. Would a reasonable man hold this to be valid under public morality? We could also take the example of nursing mothers, imposing upon them the law of wearing clothes that do not reveal anything beyond the neck would be highly unreasonable, as it would basically amount to saying that a mother cannot breastfeed her child in public. Other such situation would include wearing shorts in the summer to combat the heat, or having to wear clothes that expose a part of the body mentioned in the DA due to injury or health condition etc. By way of these illustrations we can clearly see that the object o ‘preserving public morality’ is not being met in several situations at all, rather this act is leading to infringement of not only the right to liberty but also other rights of the individual and simply cannot be sustained.

Another way to look at the DA would be through the lens of the two principles of Justice that John Rawls lays down in his ‘Theory of Justice’, they are –

“First Principle: Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.

Second Principle: Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.” 6

The relevant principle in this case would be the first one that imagines people to be equal in terms of the liberties they receive and says that we must have a system that provides similar basic liberties for all. The DA is in contravention to this principle, as while some people who

5 Classical Legal Positivism: Bentham, Austin and Kelsen 6 Rawls, John (1971). A theory of justice. p. 266. ISBN 0674000781. OCLC 41266156.

are in a habit of or prefer to wear the kind of clothes provided by the DA would be able to exercise their liberty to choose whereas those who prefer more ‘revealing’ attire would be disadvantaged and be unable to exercise a similar liberty.

In conclusion, I submit that the Decency Act (DA) as passed by the State of Murky in 2007, cannot be held to valid due to the reasons as discussed above in both the private sphere and the public sphere and must necessarily be struck down. Further, the argument by the State that the High Court overstepped it’s boundaries by declaring the DA invalid in the private sphere by applying the Right to Privacy holds no water due to the reasons held above.