Law and Morality Model Answer

• Sir John Salmond describes law as a body of principles recognised and applied by the state in the administration of justice. Legal rules are a set of statutory or common law rules used to enforce basic rights and regulate society which are supported by sanctions administered by the state if broken.
• Phillip Harris defines morals as principles affecting standards of behaviour. They are a set of beliefs and values that change over time and are not shared by all members of society but can be individual to a person. Morals are often developed from religious beliefs and teachings such as Christians get their moral code from the 10 commandments and in the bible.
• If broken then they carry no official sanction but relies on the individual's sense of shame and social condemnation. An example of this can be seen with adultery. Most people would agree that adultery is morally wrong but in the UK there is no legal prohibition against it.
• Morals are fluid and can change as society develops. For example, attitudes towards marriage have changed since the Marriage Act 1949 and the introduction of Equal Marriage under the Marriage (Same Sex Couples) Act 2013.
• Whether the law should enforce morality may depend upon which theoretical viewpoint is adopted; Legal positivism or natural law. Legal positivists believe that law and morals should be treated as separate distinct issues. That a legal rule is valid if it is created in the proper way by a legislative body. For example, in the UK by Parliament. If Parliament creates a law which goes through the proper stages this would be valid regardless of what it actually did and must be obeyed.
• Legal positivists such as Austin argue the law should not enforce morality, arguing that 'A law which exists is a law, though we happen to dislike it.' He developed the 'command theory' arguing that the law is a command that we should obey regardless of the fact we may think it is immoral. Therefore, he would argue that the laws made in Nazi Germany were still valid laws which were enforceable even though they were immoral.
• Natural law theorists on the other hand believe that law and morals should have a link and the law should enforce morality. St Thomas Aquinas argued that laws come from God and when our laws fail to conform to morality then they are not valid laws. He would disagree with Austin and argue that laws in Nazi Germany were not valid laws as they failed to conform to the higher power of morality and agree with the fact that informants were punished after the war even though they had been following the law when they acted as informants.
• Additionally, since the decline of religion in many societies, Lon Fuller argued that a valid legal system had eight legal and moral requirements, including that it is in existence, published, understandable and consistent.
• Positivists such as Bentham criticised the natural law theories for confusing legal issues and moral issues. The Wolfenden Report was published in 1957 which led to the de-criminalisation of homosexuality in the Sexual Offences Act 1967 highlighted the disagreement between natural law and positivist theorists was seen in the Hart-Devlin debate. The Wolfenden Report had said that that the law shouldn't 'intervene in the private life of citizens' and that there 'must remain a realm of private morality and immorality which is not the laws business.'
• This was a clear example of the law choosing not to enforce morality. Lord Devlin was critical of the report and took a paternalistic approach in his cases believing the law should set the basic standard of morality. He thought that there should be a shared morality in society and that if private immoral conduct was allowed then society may disintegrate.
• In the case of R v Brown, Lord Templeman's comments echoed those made by Devlin, that there is a moral duty to protect society against immoral behaviour. Despite the 5 men engaging in consensual acts of sadomasochism, a guilty verdict was reached, illustrating the law does and should enforce morals.
• Professor Hart disagreed. He was influenced by the utilitarian approach of John Stuart Mill who thought that a minority in society should not be made to conform to the will of the majority. Hart went further and said that the law should not enforce morality as it was unnecessary, undesirable and unacceptable. The role of the law should be very limited in protecting and enforcing morals. He argued that the law should only enforce morals if there was a 'genuine threat to social order from the immoral conduct.'
• In the case of R v Wilson, Russell LJ drew on the dissenting judgements in R v Brown to move away from the Brown ruling. He commented that 'consensual activity between husband and wife, in the privacy of the matrimonial home, is not, a proper matter for criminal investigation, let alone criminal prosecution. Hart and Mill disagreed with the ruling in R v Brown arguing that the law shouldn't interfere with the men's free will to do the immoral activities in private as it wasn't threatening society as a whole and they were only hurting themselves.
• Essentially, private immorality is private and is not for the state to interfere with, therefore the law shouldn't enforce morality.
• There is arguably great difficulty for Parliament to pass laws that reflect morals and beliefs of everyone in society; what some people consider immoral others do not. Durkheim commented that in small societies it was possible for there to be a common morality and therefore common laws. However, we live in a pluralist society; that different religious and social groups will co-exist and tolerate the different moral rules that each has.
• Pluralist societies contain a wide range of moral standards and values which makes it difficult for the law to please everyone and there is genuine need to balance the morals of society against individuals morals. As the government do not want to lose public support and want to endeavour to be re-elected, Parliament may make use of Private Members' Bills to pass controversial laws.
• Instead, backbench MP's will pass the law, for example, in 1967 the Abortion Act legalised abortion. This served the need of ensuring the safety of women by allowing abortions in proper clinical conditions and avoid 'backstreet abortions' risking their lives. Women's groups such as 'Abortion Rights' favoured the reflecting a woman's right to choose what happens to their own body.
• However, the Catholic Church believe that abortion is always wrong as life begins at conception. Essentially, the law does try in some circumstances to enforce morals and the Abortion Act appears to be based on moral positions, just not ones accepted by everyone.
• However, there are laws in this country which do not enforce societal morals. This can be seen with the law on euthanasia as the assisted dying bill was defeated in parliament, indicating the law should not enforce morality. Even though many people may believe that euthanasia is morally right and is legal in other jurisdictions such as Switzerland, the government refuse to change the law.
• The decision in R (Pretty) v DPP 2002 to refuse a terminally ill woman the right to die was correct in law, as the law of the UK prohibits euthanasia and equally a number of religious organisations supported this decision as morally right. However, there were also some social groups and movements (e.g. Dignity in Death) who argued it was immoral to refuse Diana Pretty the right to die and allow a human being to suffer and lose their dignity, refusing to accept her consent to die.
• There is not a need for the law to always enforce morality, for example, strict liability offences. The fact mens rea does not need to be proven helps to protect the public and ensure high standards are met regarding health and safety, matters in relation to food and drink, pollution, building and road use.
• Although in cases such as Callow v Tillstone where a butcher checked whether meat was fit for human consumption with a vet who said it was, was found guilty because it wasn't have been massively criticised arguing it is immoral to find someone guilty of a crime that they had no idea they were committing and even tried to prevent it.
• It is also argued that the law should not always enforce morality because the parties involved in a case may hold a particular religious viewpoint that the courts do not agree with. In Re A, the parents of conjoined twins opposed the separation of their babies on religious grounds. However, the court authorised their separation. These decisions are controversial as the Judge is making a moral decision. Judges are criticised as being old and out-of-touch because they are from a narrow social background and their morals may be different from those of the public.
• In conclusion, there cannot be a complete separation between law and morals as many are intertwined e.g. 'thou shalt not kill' from the ten commandments is reflect in the common law offence of murder by Lord Coke. The law can influence people to become more morally accepting of issues and moral issues in society can influence law making. In many cases, the law does try to enforce morality but as morals are constantly changing with each generation, the law sometimes fails to keep up.