An Analysis of The Introduction of The Hunting Act 2004 In The Context of Fuller's 'Moral Code'

Bristol Law Review 2021-2022 Online Edition

Abstract: This article uses Fuller’s moral scale to evaluate the history that led to the introduction of the Hunting Act 2004. The Hunting Act 2004 was enacted by a Labour Government after over fifty years of attempted and failed bills of the same kind. The process of introducing the Hunting Act 2004, from initial interest to Royal Assent, will be critically evaluated to better understand why this legislation was enacted when it was. Fuller’s ‘moral scale’ will be used to consider whether, and to what extent, morality can explain the way that the Hunting Act 2004 was introduced.

Fuller’s Moral Scale

Legal moralism is a legal theory which holds that there should be a relationship between law and morality. Lon L Fuller theorised the idea that there is a ‘moral scale’ which sits alongside life and the law. [1] The ‘moral scale’ is based on two types of morality; ‘duty’, [2] and ‘aspiration’. [3] The ‘morality of duty’ represents the rules of an ordered society, and describes what should and should not be done. Fulfilling the morality of duty is a minimum and failing to do so is wrong. On the other hand, Fuller describes the ‘morality of aspiration’ as the “good life”, [4] and states that it comes from Greek philosophy and key ideas of excellence, fulfilment, and the fullest realisation of human power. Aspiration can be distinguished from duty, as a person is not inherently committing a wrongdoing when they fail to fulfil aspirational morality. Fuller uses these two types of morality to create a scale; ‘aspiration’ at the top and ‘duty’ at the bottom. This represents what drives ‘all elements of human life’, including the law. [5]

Many legal moralists believe that the law should reflect the moral views of people as they adapt and change over time. [6] However, the law does not always reflect the public’s moral views, largely because not everyone will have the same moral views. To put hunting in the context of legal moralism itself, it would be logical to suggest that there should have been anti-hunting legislation long before 2004. This would reflect a moral view which clearly existed for many years before the Hunting Act 2004, as demonstrated by years of attempted legislation, protests, and campaigns. [7] Despite this, legislation to ban hunting still took decades to pass in Parliament, which suggests that those who opposed hunting legislation had strength, and a meritorious argument. This can be evidenced by certain events, such as the Countryside Alliance, [8] wherein more than 250,000 people rallied together to protest against legislation that aimed to ban hunting. [9]

There were two main groups in relation to the morality of hunting. The first was against hunting and formed pressure groups (the League Against Cruel Sports, founded 1924) [10] and campaigns [11] to have hunting banned. The second group supported hunting and later protested against anti-hunting legislation. [12] A considerable majority of the people who partook (and still do) in hunting, appeared to live within upper class society. [13] Throughout history, this upper class has for the most part included MPs and members of the Government. [14] There is a discussion to be had as to whether the overall moral view of Parliament, regarding hunting, was able to postpone the success of anti-hunting legislation. For this reason, this essay will use Fuller’s ‘moral scale’ to specifically analyse the morality of lawmakers, and discover why it took so long for anti-hunting legislation to be successfully passed through Parliament.

Fuller suggests that in order to judge what is bad in human conduct (make law), we must know what is perfectly good. [15] This concept implies that lawmakers believe, at least to an extent, that they know what is good and therefore can determine what is bad and should be illegal. [16] There is an implication from the ‘moral scale’ that those who make law must sit somewhere around the middle between ‘aspiration’ and ‘duty’, and be able to value both ordered society and human aspiration for excellence and power. [17] However, Fuller does submit that “moral duties cannot be rationally discerned without embracing the ‘morality of aspiration’”. [18] This suggests that the morality of duty and aspiration are heavily connected rather than separated at each end of a scale. Fuller implies that the ideas of what is perfectly good, lay on the ‘aspiration’ side of the scale, however, this notion has changed with the further development of rules and law in society.

The criminalisation of hunting appears to be low on the moral scale toward the ‘morality of duty’. This is because the argument to ban hunting is rooted in a desire to prevent people from hurting animals for sport, food, and leisure. On the other hand, the notion of keeping such an act legal, tilts much closer to the ‘morality of aspiration’, as it holds value in something that people were finding pleasure and power in.

The journey to ban hunting

Attempts for 20th century anti-hunting legislation can be dated back to 1949, when a private member’s bill was introduced for “the protection of animals”. [19] This particular bill failed (at the second reading in the House of Commons) and faced particular backlash from various MPs. In the second reading of this bill one MP stated that those who want the bill to be passed believe that they have a “monopoly” on morality, [20] and that the bill needs to be rejected in order to stand up for the “liberty” Parliament. [21] This suggests that the liberty of hunting, as well as the benefits of it as a leisure activity, outweigh the morality of protecting animals from cruelty.

It appears that this argument is built on the idea that if this bill were to pass, society would no longer be free to do what it wants. It also implies an argument against legislation that may affect leisure and emphasises the importance of the morality of leisure activities, even above the lives of animals. The comments made here appear to sit high on the ‘moral scale’ toward the ‘morality of aspiration’, as they support the free will and power of people to do what they wish to do.

Michael Tichlear discussed a concept in his 2006 article [22] which provides context for the views demonstrated above. Tichlear argued that it was clear that the people involved in hunting recognised that it was cruel, [23] as they even started to ban children from attending hunts due to their callousness. However, he commented that it did not matter whether an act was morally wrong if it was able to provide the upper class with leisure, sport, food, or power. [24]

This is an interesting point, because it means that people who oppose the bill might view hunting as morally wrong from a duty perspective, but still continue to support it. This idea could be part of the ‘morality of aspiration’, where the people who support hunting are valuing their power as humans to choose what they want to do (as sport or for leisure) over their duty morality to protect animals.

A supporting argument for the 1949 bill, displayed in the readings stage, was that banning hunting shows a “reasonable and rational” progression of how civilisation has developed. [25] This supports the legal moralist theory that law should change to fit changes in people’s moral views over time. [26] This argument seems to sit lower down on the ‘moral scale’, toward the ‘morality of duty’, but not entirely down at the bottom. This is because legislators are not only attempting to change the law to regulate society in a way that prevailing social attitudes view as ‘moral’, which reflects duty morality, but are also attempting to please a certain group of people (animal rights activists), which reflects aspirational morality. This appears to suggest that the introduction of a law can rarely ever be entirely at the bottom of the ‘moral scale’. This is because laws are often made to please certain people, which reflects the morality of aspiration.

In 1970, another anti-hunting bill was introduced, [27] this time passing through the House of Commons. However, it still failed as the bill could not pass before a general election was called. [28] At the time that the bill passed through the House of Commons there was a Labour majority, a party which had demonstrated some support for anti-hunting legislation. [29] However, after the general election there was a Conservative majority, and the bill ran out of time. It could certainly have been construed that a lot of the key policies from the two parties felt closer to opposite ends of the ‘moral scale’. Labour largely focused on social policy, animal welfare and crime, [30] which surrounds social order and ‘duty’. Conversely, the Conservatives were more set on war and economics, [31] which is closer to power and ‘aspiration’. The way that the policy of the Conservatives seemed more focused on the ‘morality of aspiration’ could go some way to explain why they allowed the anti-hunting bill to run out of time.

The run up to the Hunting Act 2004

In the 1990s anti-hunting bills started to appear in Parliament once again. The 1992 Wild Animals (Protection) bill [32] and the 1993 Fox Hunting Abolition bill [33] both failed in the House of Commons. Sir Anthony Buck, in the second reading for the 1992 bill, commented that the people who were in support of the anti-hunting legislation were “naive” about the act of hunting. This implies that he believed that if people were educated about hunting and its advantages, they would not necessarily support the act. It appears that the MPs that were against the legislation believed that the key advantage of hunting was that it was a ‘field sport’ [34] that provides “pleasure”. [35] This concept that hunting, although considered cruel, [36] should still be allowed because it provides pleasure, reflects the ‘morality of aspiration’.

Fuller suggests that the morality of ‘aspiration’ does not deal with ideas of right and wrong, but instead with the concept of “proper fitting conduct” that best fits with “human functioning”. [37] This could explain the argument suggested by Sir Anthony Buck, and those who support hunting. These individuals are not concerned with whether hunting is morally wrong or not but rather with whether it is conduct that fits with the way that society functions. Of course, these supporters of hunting believe that it is conduct that fits human societal functions because it is something they have always done, and has rarely been challenged.

Kevin McNara, who introduced the 1992 bill as a Private Member’s Bill, stated that the bill’s purpose was a moral one, to protect animals. [38] This particular wording, on the surface, appears to lean toward ‘duty morality’ on the scale. This is because it supports the idea that people should not harm animals (and this would, therefore, enforce order in regard to hunting activities). However, it is possible that the idea of protecting animals could connect to the ‘morality of aspiration’, as those who are against hunting wish to be good [39] (and be viewed as good) and aspire to look after the earth’s creatures (as in Greek mythology). [40]

Fuller suggests that part of the ‘morality of aspiration’ may hold “overtones of a notion approaching that of ‘duty’”, but that aspiration is about a “man realising his fullest capabilities” and what he has the power to do. [41] This would include having the ability to protect animals and keep them from harm if one wishes. There appears to be an essence of pride that people who campaign for animal welfare feel, [42] as they are taking it into their hands to look after something that may not otherwise be able to look after itself. This suggests that the aspiration of those who supported anti-hunting legislation was to protect animals and to stop hunting for leisure. However, despite this aspiration it still took many decades for anti-hunting legislation to pass, which may be because this was not the ‘aspiration’ of the people that had a majority in Parliament (at that time). This argument can be supported by the fact that the Hunting Act 2004 was eventually passed when Tony Blair’s Labour Government was in power, a party which had campaigned to put bans on hunting in the run up to the election. [43] In fact, concerning the 1993 bill, Tony Banks points out that “only the Labour Party are committed to banning fox hunting”. [44]

Nevertheless, it took over seven years for this Act to be passed after Tony Blair was first elected. This was largely due to disagreements as to what should be contained in the bill, and the sluggishness of the legislative process. The first anti-hunting bill brought forward during Tony Blair’s time as Prime Minister, ran out of time when the 2001 general election was called. [45] After this, two bills were brought into the Houses of Parliament which both failed to become law because they were not specific hunting bans and were therefore blocked by Labour MPs who wanted such specific bans. [46] It was the next anti-hunting bill to enter Parliament after this, in 2002, that became the Hunting Act 2004.

The Hunting Act 2004 and the moral scale

Fuller actually suggests that as the moralities of ‘aspiration’ and ‘duty’ appear to overlap and borrow from each other, (as was demonstrated above by the motives for supporting animal welfare), there is no need for a clear line between the two moralities. Given that there is no clear line between the moralities of aspiration and duty, focusing on each type of morality discretely would not explain why anti-hunting legislation took so long to pass. It may have been the existence of the moral scale itself that explains this. The two moralities [47] represent two relatively different forms of motivation that could be applied to law-making. At the time when anti-hunting bills were failing to pass, [48] it seems that the majority of MPs were prioritising the top of the scale (this is demonstrated by the comments made about hunting being a pleasurable sport). [49] However, eventually, the agenda of Parliament shifted to the ‘morality of duty’ and that gave way to the Hunting Act 2004. [50]

Fuller does not apply the moral scale to hunting or animal welfare, however, he does draw on the example of gambling. He proposes that the ‘morality of duty’ would deal with gambling by assigning a ‘moral legislator’. If this moral legislator decided that gambling was harmful, then people would be required to refrain from gambling. [51] He says, in contrast, that the ‘morality of aspiration’ would consider what could be gained from the act of gambling, and the worth of that gain to people. [52]

This framework can be similarly used for hunting. It appears that for the majority of failed bills, it was the ‘morality of aspiration’ which was prioritised, as lawmakers focused on what could be gained from hunting. They concluded that the pleasure gained from hunting as a sport outweighed the cruelty it caused to animals, and therefore they would not legislate to ban hunting. However, when the Hunting bill 2004 [53] came to Parliament, a ‘morality of duty’ approach was taken by Parliament, as lawmakers decided that hunting was considered to be harmful enough [54] (to animals) that they could legislate to stop it.

The shift from ‘aspiration’ to the ‘morality of duty’ can be demonstrated in various ways. Firstly, it appears that there was increasingly more support for anti-hunting legislation each time a new bill came to Parliament. Both the 1992 [55] and 1993 [56] bills failed at the second reading at relatively close majorities, and there was discussion in both cases about animal protection and the cruelty of hunting. [57] By the time that the Hunting Bill 2004 [58] was introduced, the majority of the anti-hunting discussion was focused on the cruelty of hunting. This aim is one that reflects lower down on the ‘moral scale’, as it holds value in placing a regulation on conduct that is considered wrong. [59]

In the 2004 bill, [60] there appeared to be a considerably larger amount of support against hunting. For example, it was insisted that anti-hunting legislation should not be stopped from passing just because some find pleasure in hunting. [61] This argument suggests that the law should take the side of animal rights activists rather than those who partook in the cruel sport, as it would be more just to do so. This is a key example of the ‘morality of duty’, as it is suggested that law should stop people from acting in a way that is morally viewed as cruel. The way that the majority view in Parliament shifted from that of ‘aspiration’ (to support hunting) to that of ‘duty’ (to ban hunting), appears to have given way to anti-hunting legislation to finally pass through Parliament. [62]

Conclusion

Fuller’s ‘moral scale’ can be analysed and dissected to explain why there were more than fifty years between the first anti-hunting bills and the first anti-hunting legislation. The ‘moral scale’ between the two moralities demonstrates how the morality of Parliament appeared to shift over time. Where bills to ban hunting were failing, it could be explained by looking at how Parliament’s priorities appeared to fall higher up on the scale [63] (toward the ‘morality of aspiration’). The first reading for the Hunting Bill 2004 demonstrated the ‘morality of duty’ [64] more than the ‘morality of aspiration’, and this was different from previous anti-hunting bills. [65] This may imply that, regarding hunting, the moral scale shifted toward the morality of duty. This is because Parliament had changed to a Labour majority once again, which is the party that appeared to have policies that generally fell lower down on the ‘moral scale’.

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Fuller, The Morality of Law, (1969) Universal Law Publishing Company (Revised edition, Fourth Reprint 2006), 3 [7] Darryl Chamberlain, “Celebrities take sides”, BBC News Online 16/09/1999 (accessed online 02/01/2020: http://news.bbc.co.uk/1/hi/special_report/1999/08/99/fox_hunting/431671.stm ) [8] Countryside Alliance, “A sense of purpose: 20 years of the Countryside Alliance”, (2017) Countryside Alliance online 29/06/2017 (accessed online 02/01/2020: https://www.countryside-alliance.org/news/sense-purpose-20-years-countryside-alliance ) [9] BBC NEWS, “Countryside Fields, 250,000 protestors” (1998) BBC NEWS Online (accessed online 03/01/2020: http://news.bbc.co.uk/1/hi/uk/60845.stm ) [10] The League Against Cruel Sports “The League- About Us” (accessed online 21/12/2019: https://www.league.org.uk/about-us ) [11] Darryl Chamberlain, “Celebrities take sides”, BBC News Online 16/09/1999 (accessed online 02/01/2020: http://news.bbc.co.uk/1/hi/special_report/1999/08/99/fox_pa/431671.stm ) [12] Countryside Alliance, “A sense of purpose: 20 years of the Countryside Alliance”, Countryside Alliance online 29/06/2017 (accessed online 02/01/2020: https://www.countryside-alliance.org/news/sense-purpose-20-years-countryside-alliance ) [13] Thomas Dunlap, “Sport Hunting and Conservation, 1880-1920”, 1988, ER 12:2 Spring 1988 (pp 51-60), 53 [14] Thomas Dunlap, “Sport Hunting and Conservation, 1880-1920”, 1988, ER 12:2 Spring 1988 (pp 51-60), 56 [15] Lon L. 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