Law and Morals - example essay

Examine the relationship between law and morals and the extent that the law promotes it.

Law can be defined as a body of principles (Salmond) imposed and enforced by the sovereign (authorities)(Austin) with coercive power (Hobbes). Blackstone gave the definition that law made from pre-existing customs exist as positive law separate from its legislator or judge.

Morals, on the other hand, can be seen as principles of right or wrong resulting from one’s conscience or social standards of behaviour. They are customs developed over team which may eventually become laws (Bills of Exchange 1882). Religion is arguably the largest source of morality, e.g. the UK’s laws on murder and theft can be traced back to the 10 commandments.

There are a number of clear distinctions between law and morals. For example, law can always be proved by referring to a written record of it while morality is opinion and open for dispute.
Second, law can change instantly, e.g. homosexuality was legalised instantly by the Sexual Offences Act 1967, while morality changed gradually. Lastly, law can be enforced by legal sanctions, while morals are dependent on social condemnation of the individual.

It is evident that moral viewpoints have a great influence over law making (e.g. Common law itself is from the moral decisions of judges over decades), although this depends on the area of law involved. For example, areas of criminal and sexual offences have led to a lot of controversy. Others such as murder, robbery, and rape, clearly share a more common viewpoint on morality. Abortion is an area that whilst appearing to be based on moral positions, is certainly not accepted by everyone as there are varied viewpoints on the sanctity of life, and this can be seen in the decisions of judges themselves. While the courts have made it legal to carry out abortions under the Abortion Act 1967, they have refused actions for ‘wrongful life’ (McKay v Essex). Debate itself is present concerning the time period up to which abortion can be legally carried out (Human Fertilisation and Embryology Act 2008). Euthanasia is also an issue that generates passionate debate (e.g. Pretty and Purdy).

There are some areas where the law will overlap with morals. In (Brown) it was held that homosexual sadomasochists could not consent to harming each other’s genitalia as it was not within public interest, while in (Wilson) it was ruled that a wife could consent to her husband branding his name on her buttocks. Decisions in Emmett and Kingston are also seen as moral, as well as R v R which shows judges have changed the law to reflect changing social values. Other fundamental overlaps include the Theft act 1968, it is both legally and morally wrong to steal. Even in Common Law 'thou shalt not kill' is the legal expression in the law for murder.

However, morals are difficult to promote and can be unfair. Gillick v West Norfolk showed that the law does not always back up morality but may go against it: the courts upheld a girl’s right to take contraceptives against her mother’s moral disapproval. Strong legal enforcement of morals can be seen in the use of strict liability in some sexual offences. This resulted in some injustices such as R v G where the D was convicted of having sexual intercourse with a girl under 13 under the Sexual Offences Act 2003 even though there was apparent consent and D genuinely believed V was of age. This decision could be seen as a moral principle implying that a girl under 13 cannot consent to sex. Baroness Hale considered the decision reflected the need of the state to protect such victims. Other cases include  Barnet v Chelsea and Kensington H which shows that legal duties have been imposed to back up doctors’ moral duties under the Hippocratic Oath.

There is much debate over whether law should reflect morality, with the most major argument being the Hart/Devlin debate. This was prompted by Hart’s approval of the Wolfenden Committee’s recommendations to legalize homosexuality and prostitution, saying that law and morals should be kept apart. Hart was a positivist, who believed rules are valid irrespective of content. Austin and Mill shared the same view – that morality is a separate issue and the state had no right to intervene in people’s private life where they had consented (in cases such as Brown or Wilson), as it was unfair to punish people who have done no harm to others. Hart believed that validity of law is not dependent on moral acceptability, even if law is repugnant. This can be seen in Nuremburg Laws on the prosecution of Jews. Durkheim appears to support Harts view by saying morals are too diverse and it is impossible to find a set that represents a modern society. He also believed that since society is held by social structures, the law must operate as an integral means of ensuring those structures work.

Devlin, on the other hand, believed the fabric of society is dependent upon a common morality, and where the bonds of that morality are loosened by private immoral conduct, the integrity of society will be lost. Thus he felt judges had a residual right to preserve this common morality (as in Shaw v DPP where D was convicted of corrupting public moral by advertising prostitutes, even the House of Lord invented a crime to cover the situation). He also backed the case of Brown with this view, where the HoL imposed standards of acceptable behavior despite the consent of adults to minor injuries. This view was shared in the past by Aristotle and Aquinas (naturalists), who believed that law is invalid unless it corresponds to a higher morality, i.e. God or Nature. Lon Fuller also supports Natural Law, the view that law and morality should be one and the same. He believed we should follow our ‘inner morality’. However, Devlin deviated from the main naturalist argument in believing conventional morality – what is best for society as a whole, but keeping the status quo. This means that he would recognize apartheid slavery or apartheid if that was the norm.

Although it is clear that the extent of whether law enforces morals depends on the area concerned, it would be too unrealistic to suggest that law should be totally separate form morals, as it is largely based on morals itself and the separation would result in disobedience of law go against the conscience of individuals. However, while law enforces morality, it cannot satisfy all variations (e.g. Muslim acceptance of polygamy contradicts Christian views) as society is so pluralistic. However, legislation such as the Human Fertilisation and Embryology Bill 2008 have been described in Parliament as ‘a pragmatic fusion between science and the social mores of today’. Such considerations were seen in the Civil Partnership Act and the Equality Act 2006. Thus it shows that the law continues to be developed to enforce the dominant public morality and thus seeks to uphold and promote moral values.