However, there tends to be a huge overlap between them both. Much law is based on religious principles, for instance the 10 commandments – “thou shalt not kill” which is found in the common law offence of murder and “thou shall love thy neighbour” found in the basic principles of negligence (Donoghue v Stevenson). Most laws have a moral contract, for instance laws surrounding squatters right’s and tax laws.
Also, because we live in Britain - a multicultural society people hold different opinions towards issues on abortion, homosexuality and contraception. Morals that apply to one person may contrast to another’s. This is perhaps why it is so hard to legislate based on morals as opinions vary and by basing laws on one opinion may lead to a public cry out. It appears that morals advance quicker than laws; it is obvious that the law undergoes changes to adapt and reflect to the moral views of society. For instance, in the past homosexual couples were stigmatised and seen as immoral, but in today’s society they have gained legal rights that resemble those of heterosexual couples (marriage, adoption and cohabiting). The changes to the law surrounding rape within marriage was established in R v R, this case recognised the rights of women and the idea women should be equal to men within marriage in this issue.
On the other hand, there are a number of very difficult cases that raise the crisis of moral dilemmas. For instance, in Gillick a fifteen year old girl wanted contraception and went to the doctors who prescribed her with it, but her mother was against the use of contraception as she was Catholic. Here there was a moral dilemma as it was held by giving contraceptive pills to under 16s would encourage them to have underage sex but, by not giving it to them it would cause many unwanted teen pregnancies. Additionally, there has been a recent case on designer babies and whether or not it is a good idea or not. Another example is where individuals choose to abort a baby without any justification – the question to be asked here is where do you draw the line?
In this case, many philosophers have written about their views surrounding the relationship between law and morals. John Stewart Mill was a writer in the 19th century who took a liberal view in his book ‘On Liberty’. Stewart Mill proposed that you should not interfere with ones private life if does not bring ‘harm to others’. Here, there are problems defining ‘harm’ as many people have different views towards it, for instance some would say that pornography and violence on television is harmful and some would disagree. Also, there is conflicting views on what is to be regarded as ‘other’ – is an embryo an ‘other’?
Moreover, the Wolfenden Committee had used Mill’s liberal view when looking at the laws surrounding prostitution and homosexuality. He believed that the laws on prostitution and homosexuality should be more liberal and he argued that they should not constitute as crimes. These recommendations had been later legislated, prostitution was allowed as the ‘harm’ was only between two consenting individuals, but what the law does not allow soliciting immoral earnings. The age of consent for homosexuals to have sex also dropped to 16 – the same as heterosexuals.
Lord Devlin disapproved of their recommendations proposed by the Wolfenden Committee. He argued that there should be a ‘common morality’ (determined by what a right minded person to consider immoral) that society should follow and that society must punish an act that weakens this shared morality. He believed in public and private interest, so if society does not mind it happening it is fine to carry on. But if an act goes against the values of society even if it is done in private it is morally wrong. For instance, in R v Brown, D’s stuck pins in each other for pleasure and was charged with assaults. The CoA quashed their appeals and held that individuals were not allowed to consent to violence that may harm themselves, this case clearly illustrates that moral views are not always taken into account.
From the viewpoint of professor Hart (“law, liberty and morals”) opposed Devlin’s perspective. He followed Mill’s idea that the state should only intervene where others are at risk. He argued that knowledge of harm is insufficient and the state may interfere to stop a person from harming themselves seriously. He criticised Devlin and said people should be free to learn and experiment and that society has the capacity to hold many differing moral values without falling apart.
Furthermore, Dworking suggested that moral values should not be based on prejudice e.g. ‘homosexuality is evil’, emotional factors or facts that have no evidence – e.g. ‘homosexuality spreads aids’. Also, Hughes said that Devlin’s proposals reminded him of Nazi laws allowing judges to punish innocent people, illustrating this could be R v Gibson where an artist had exhibited dried foetus earrings, which was held to outrage public decency.
The Hart-Devlin debate are both influential on practice but are not as opposed as they seem. In a recent committee today called the Warnock Committee who looks at scientific issues such as pregnancy fertilization and embryo research. These issues are seen as unmoral even though they have such beneficial results such as people who can’t have baby’s being able to through donated sperms and eggs. This shows that the law is not always able to meet the needs of scientific knowledge and instead developments as such have caused a moral dilemma.
