Morality

• Lord Devlin 

  Law and morality are inextricably linked – the law should punish immoral acts even in private.

  o   Society should punish any act thought grossly offensive and immoral by the standards of the ‘right minded person’ – links to Aristotle’s ‘Virtuous person’
• Professor Hart 

  There is no widely shared morality, and it is constantly changing with society and time.

  o   Using the law to enforce morality is unnecessary, undesirable, and morally unacceptable – individual freedom is the most important 

  Law should not be used to regulate behaviour unless it causes harm – a paternalistic element.
• Wolfenden Committee report 

  A major report about law and how far it should reflect morality.

  o   It recommended that prostitution and homosexual acts between two consenting males should no longer be a criminal offence 

  o   It maintained that activities (e.g. soliciting in the street) which could cause offence to others were still to be regulated by law
• History of criminalisation of homosexuality 

  Been a criminal offence since the Middle Ages punishable by death. 

  An increase in prosecutions in the 1950s:

  o   Alan Turing – WWII hero who was forced to undergo chemical castration for his homosexuality 
• John Stuart Mill

  Mill was a libertarian – supported classical liberalism

  o   Extreme version of Hart’s view – the government and law should stay out of people’s lives 

  People should be free to make their own choices, so long as they don’t harm others.
• Pluralist society 

  Where many diverse groups and political parties co-exist together

  o   Durkheim – in small societies it was possible for there to be a common morality but that is not the case in a modern, pluralist society 
• Morality in criminal cases:

  Brown – D was found guilty after engaging in sadomasochistic homosexual acts 

  o   Enforcing ‘moral’ values and using law to regulate private lives (supported by Devlin, criticised by Hart/Mill)
• Morality in criminal cases:

  Wilson – held consensual branding of a wife was not a matter for the law

  o   Respects individual liberty 
• Morality in tort law 

  Thomas-Schwab v Costaki – ruled against prostitution in a nice areas due to its character

  o   Enforcing morality
• Morality in tort law:

  Berriman – wife was not compensated for her husband’s death after he died oiling tracks not ‘replacing or repairing’ them 

  o   Not a moral/just outcome 
• Morality in tort law:

  Occupier’s liability – concept of common humanity in OLA 84 

  o   Statute enforcement of morality 

  o   British Railway Board v Herrington – child was injured while trespassing 
• Changing morality

  Doogan – rule nurses could refuse to take part in abortion surgery but not the administrative tasks 

  o   Imposes a changing morality but doesn’t acknowledge personal morality