Law and morality

• Definition of law


  Sir John Salmond defines law as "the body of principles recognised and applied by the state in the administration of justice."
• Definition of morality


  Phillip Harris defines morality as "a set of beliefs, values, principles affecting standards of behaviour."
• AO1


  Morality is subjective and so morals are not shared by all members of society. Morals change over time and traditionally many morals were based on the dominant religion in society. For example, 'Thou shall not kill'. However, there is difficulty for parliament to pass laws that reflect the moral beliefs of everyone in society, due to the pluralist, modern society and notably the decline in religion as the dominant source of collective morality. Law and morality simultaneously converge, for example murder is both illegal and immoral, and diverge, for example, adultery is immoral but not illegal.
• PEEL 1 (part 1)


  Natural law theorists such as St. Thomas Aquinas believed law and morals were the will of God. However, since the decline of religion in many societies, Lon Fuller argued that a valid legal system had 8 requirements, including that it is in existence, published, understandable and consistent. Positive law theorists such as Jeremy Bentham criticised natural law theories for confusing legal issues and moral issues. Bentham suggested natural law was "nonsense upon stilts".
• PEEL 1 (part 2)


  The Hart-Fuller debate demonstrates the disagreement between natural law theorists and positivists. Hart argued laws made by the German government during World War 2 were still valid, as unjust laws are still law because they come from the legal process. Therefore, despite the fact the laws were immoral, they were still legally enforceable. Fuller rejected Hart's perspective and said these laws were never actually valid because they went against natural law and were immoral. German Courts agreed with Fuller when they prosecuted informants as war criminals despite what they had done during the war being legal at the time. Thus demonstrating the conflicting views of theorists on whether the law should impose morality.
• PEEL 2 (part 1)


  The contrasting views of natural law theorists and positivists is further highlighted through the Hart-Devlin debate. Lord Devlin was a paternalistic lawyer who believe that if society did not punish immoral acts then the fabric of society would disintegrate. Devlin believe law and morality are not separate issues and judges should be preserving a shared morality, because society depended upon "a common morality" for its survival and "people need to be governed by authority". Devlin reacted to the Wolfenden Report which led to legislation of homosexuality in the Sexual Offences Act 1967 and advocated that homosexuality should no longer be a crime. Devlin was critical of the report as believed in shared morality and that society would disintegrate if morals were not upheld. Professor Hart disagreed and believed law and morality are separate issues and we live in a pluralist society so there is no shared morality. Hart was influenced by John Stuart Mill's utilitarian approach and both Hart and Mill thought that a minority of society should not be forced to conform to the will of the majority as this would infringe a person's autonomy.
• PEEL 2 (part 2)


  This also demonstrates the changing nature of morals in society and the difficultly the law may experience in attempting to remain updated with current public opinion. For example, the law regarding rape within marriage. Sir Matthew Hale stated "by their matrimonial consent and contract the wife hath given up herself in this kind and to her husband which she cannot retract." However, in R v R this marital rape exemption was abolished and Lord Keith stated "Hale's proposition reflected the state of affairs in respects at the time . . .marriage is in modern times regarded as a partnership of equals." These examples highlight the difficulties where the law has imposed morality reflecting the majority opinion at the time. Yet the difficulty updating the law to reflect changing public morals, which can lead to years of immoral outcomes and injustices in the law from setting this precedent.
• PEEL 3 (part 1)


  Cases where judges have imposed their own views of morality have led to controversial and contradicting outcomes in case law. This was evident in R v Brown where HoL refused to allow a group of homosexual men to raise the defence of consent whilst engaging in SM activities. Lord Lowry dismissed the appeal stating that SM practices are "not conducive to the enhancement of family life nor the welfare of society". Thus demonstrates that the law is prepared to step in and make moral decisions. However, the conflicting views of the judges in R v Brown, demonstrate the division of opinion regarding whether the law should impose morality. One of the dissenting judges - Lord Mustill - said "these questions of private morality. . . are not standards of criminal law . . .they are to be upheld by the individuals." This takes the approach of Mill's harm principle which would suggest they should not have been convicted as no one else was harmed by their activities other than the five consenting men.
• PEEL 3 (part 2)


  This was the libertarian view taken in R v Wilson where the judges decided that consensual activities between a husband and wife in the privacy of their home was not a matter for criminal investigation or conviction. This highlights the issues that arise where the courts and judiciary impose their own morality, leading to inconsistencies in the law and criticism of judges, from suggestions that the judges views are outdated resulting in prejudice outcomes and thus a loss of public confidence in the system. Likewise, in cases where one of the parties holds a particular viewpoint that the courts do not agree with. For example, in Re A, where the parents of conjoined twins opposed separation of their babies on religious grounds, however, court authorised the separation. Similarly, in Re S, where a pregnant woman refused a C section because it went against her beliefs, however, the court ordered the procedure against her will. These cases present, in line with Hart and Mill, the difficulties imposing morality in legal decisions due to the pluralist modern society. This leads to criticism of judges as being old and out of touch due to their narrow social background.
• PEEL 4


  It would be difficult for parliament to impose morality into statute that would please the wide ranging values and moral standards of our pluralist society. Parliament make use of Private Member's Bills to pass controversial laws, as allows political parties to remain neutral as they do not have to reveal their views on controversial issues. Instead, backbench MPs pass law, for example the Abortion Act 1967 which legalised abortion, which was a controversial law and some still oppose. Another example is the Assisted Dying Bill which was defeated as MPs could not agree. This area of law demonstrates where the legislature and court have been reluctant to impose their own views of morality. However, in Nicklinson the courts suggested that parliament should review the law although understood that 'the right to die could quickly become the duty to die'. In Purdy, the court ordered DPP to produce guidance on what makes a prosecution likely in the case of assisted dying. Despite this, the MPs voted against changing the law and rejected the assisted dying Bill, thus presenting their reluctance to change the law.
• Conclusion


  In conclusion, the law does try to enforce morality in many cases but as morals are constantly changing with each generation, the law sometimes fails to keep up. There cannot be a complete separation between the law and morals as many are intertwined. The Human Rights Act 1998 is an example of law enforcing rights and freedoms of individuals. Issues and conflict may arise where the court tries to enforce its idea of morality on a pluralist society.