Over many years a debate has been growing over whether the law should support morals. There are two ideas that link in to this natural law and positivism. The idea of natural law is that law and morality should coincide. It follows that the law is to be found in the source of morality in question, this maybe religious scripture or the natural world. At its extreme if the legal rules of a country are in contrast to the moral code the legal rules should be disobeyed.
Positivists however hold that if legal rules have been enacted by the correct procedures, then those legal rules must be obeyed, even if they are not liked and are in conflict with morality. In 1957 the Wolfenden Committee was asked to examine and consider a range of moral issues. The committee recommended the legalisation of prostitution and homosexuality. This gave rise to much debate on the issues and established the Hart-Devlin debate.
Professor Hart agreed with the findings of the committee and argued strongly that there should be a clear separation of law and morality. He believed that morality is purely private and the state has no right to intervene in private morality. As such, it is wrong to punish those who have done no harm to others. Professor Hart conceded that society could not exist without a form of morality that mirrors and supplements legal rule. However if this stance was taken in the law today it would mean that not wearing a seatbelt would not be seen as immoral however if there was to be an accident the person who does not wear a seatbelt could cause harm to others in the vehicle and in turn damage the NHS (public policy issue) people need to sometimes be protected from themselves.
Lord Devlin’s view contrasts Professor Harts. He believed that society requires the observance of certain moral principles and even if public opinion is changing the law should still support those moral principles. He argues that judges have the residual right to protect and preserve some sort of common morality.
Moral contradictions in the law can also appear, while abortion can be carried out legitimately, the courts have refused action for ‘wrongful life’ in McKay v Essex AHA because it is contrary to the principle of the sanctity of life. Similarly doctors have been prosecuted for openly practicing euthanasia as in R v Cox but withdrawing feeding so that a patient in a permanent vegetative state would die was accepted in Airedale NHS Trust v Bland therefore euthanasia contradicts withdrawal of nourishment. It (euthanasia) is seen as immoral by the law whereas withdrawing nourishment is seen as moral and the law takes this same view, however the view on euthanasia is changing by both the courts and the general agreement felt by the public. The difference between the two examples is that in euthanasia something needs to be done to assist in death whereas in withdrawing nourishment nothing needs to be done.
Within the law there have been many contradictions, first and foremost in the cases of Brown and Wilson. In the case of Brown sadomasochistic gay men were involved, these were convicted whereas in Wilson which involved a man branding his wife’s buttocks, there was no conviction, however a conclusion could be drawn that the reason Brown was convicted and Wilson wasn’t was due to the morality held by the judge in the two separate cases, it was seen as immoral for Brown to do it but it wasn’t seen as immoral for Wilson, even though in the case of Wilson medical treatment needed to be administered but in Brown it did not. If we took John Stuart Mills approach to the law then this kind of behaviour in both cases would be seen a moral choice between the people involved and not something that the law should meddle in as long as the their behaviour did not harm others. The extent as to morality plays a part in the decisions here is great as in the judgement of the Wilson case it would seem morally right that a man could harm his wife and cause her to need medical treatment however it is immoral for adults of 30 years and over to harm each other in a way that did not need medical attention.
Furthermore it was decided in the case of Slingsby that consent was valid as a defence to Actual Bodily Harm in cases of vigorous sexual activity, however in Brown consent was not valid. Therefore a question of when vigorous sexual activity becomes sadomasochism must be raised as there is no clear distinction between the two different situations. It must again be remembered that in Slingsby the defendant was acquitted of the offence even though his wife had actually died as a result of the injuries she sustained.
Lord Justice Mustill said in the case of Brown in that there was a ‘danger of the proselytisation and corruption of the minds of young men’, however the men involved in the activity where over 30. Therefore it seems that morality is trying to be imposed on society and in looking at the profound differences between Wilson, Brown and Slingsby that prejudice has arisen both within the courts and this prejudice is being imposed with the judge’s moral decisions. Here then the relationship between morality in case decisions seems very distinct after looking at these three cases and the law it could be argued is acting in a purely homophobic way here.
In the sport of Boxing you can consent to being knocked out and even if you go as far as to kill someone you would not be guilty of murder however if the organisation wasn’t there you can be convicted of the offence and this appears to be a moral decision. In the case of Jones the defendants threw their victims 10 feet in the air, there was no conviction as the courts ruled that it was rough and undisciplined horseplay. The judge declined to direct the jury that if they thought that the defendants had only been indulging in rough and undisciplined play, not intending to cause harm, and genuinely believing that the victims consented, they should acquit. On appeal, their appeals were allowed on the basis that consent to rough and undisciplined horseplay is a defence; and, even if there is no consent, genuine belief that it was present, would be a defence. This seems therefore like the courts are condoning the act of bullying, throwing two boys who did not want to be thrown in the air who then went on to receive serious injuries is not in the eyes of the law seen as morally wrong. Accountability for the defendant’s actions must be implied in all cases and in John Stuart Mills view this would be wrong as such behaviour is harming others irrelevant of their consent and this is seen as fair and just in the eyes of the law.
Again a moral prejudice in the law can be seen in the case of Aitkin; here the victim suffered serious burns. Although it was accepted that the defendants had not intended to cause injury to the victim the defendants appeals were accepted and their conviction quashed. The decision in this case therefore seems to accept that setting fire to someone who is asleep is morally ok as by sleeping the victim was consenting to such activity, surely this idea is based on a moral perspective rather than a one of law.
In the law on homicide contradictions between law and morality are rife. Some theorists believe that the two defences to murder (diminished responsibility and provocation) seem to suggest that people who use these defences successfully are less guilty than those who are convicted of murder because they receive a more lenient sentence and are viewed in a different light to the former. This can be seen in diminished responsibility as a person who has an abnormality of mind does is seen in a different light. Again someone who uses provocation as a defence because they have lost their self control will be convicted of a lesser offence, however shouldn’t it not be the defendant involved duty to keep his self control, it look as if these two defences therefore are used as an easy exit to reduce their offence in the case of murder
A prime example of morality creeping in to the judicial system regarding homicide can be seen in the cases of Wragg and Sutcliffe. In both cases here diminished responsibility was used as a defence however it was successful in Wragg but not in Sutcliffe however medical evidence suggested in both cases that the defendants did have an abnormality of mind. It is the jury who decided in both cases whether to grant diminished responsibility however because of the nature of Sutcliffe’s crimes compared to Wragg's played a very prominent role in the reason behind the decision that the jury took. It appears consequently that juries temper the rigour of the law through jury equity.
Within the defence of provocation Slowburn cannot be seen to amount to provocation in many cases it is said women will take longer before they lose their self control. It is argued that the need for a sudden loss of self-control makes the defence more available to men than women. This decision seems to be based on morals coming from a legal system which is patriarchal. The jury has to ask themselves what they consider being an ordinary reasonable person and are supposed to take all characteristics in to consideration following the case of Smith. If the jury can make their own decision on what can be an ordinary reasonable person this allows them to bring their own moral judgments into their decision.
It seems apparent that through the law and in the many cases discussed that the question of morality plays a heavy and sizeable role in the outcome of law in the UK. Some cases it will be argued that morality has gone too far for example in the cases of Peter Sutcliffe regarding diminished responsibility and in the case of Brown, regarding homosexual activities versus heterosexual activities. Professor Hart says that society cannot exist without a form of morality which mirrors and supplements legal rules. Lord Devlin however says society requires the observance of certain moral principles and, even if public opinion is changing, the law should still support those moral principles. It does seem that Professor Harts view is of more substance as without law their would be no set of codes of value in which justice can take place and no way in which people can be held to account for their actions, what decides what is right and wrong should be morality along with the law as without morality their would be no point in the law as no one would understand what is right and what is wrong. It has been accepted above that sometimes it can go too far and law cannot play enough part in cases however morality still, I believe is an essential part of the legal system in this country today,
