Law and Morals

In contrast, morals are described as “beliefs and values shared by society or sections of society, they are known as what is right and wrong. They are enforced by social pressures and often result in disapproval by friends and family or being shunned by the society in which you live.”  Both the Law and morals can be seen to lay down boundaries of what society considers as acceptable and unacceptable behaviour. With regard to morals there has been debate in cases as to whether Morality should, when felt necessary, be referred to when deciding upon the outcome of a case. In the case of R V Gibson (1990), a man wore an earring made from a three month old freeze dried foetus. He was convicted as the act outraged public decency in such a way. The above shows that when the law feels necessary it will intervene to protect public health and morals.

It is apparent that within the English Legal System there are areas of Law which have moral implications. For example, Promissory and contractual obligations (within Contract Law), these are based around the principal that promises should be kept and are morally binding.  A second area is that of Tort Law, in particular negligence, its main principle being that those who harm others should compensate for the damage done. With Regard to the Law having taken into account morally debatable issues there have been numerous recent cases.

One of particular relevance is that of Airedale NHS Trust v Bland [1993] 1 All ER 821 which involved a 21-year-old patient who had been in a persistent vegetative state for three and a half years after suffering a severe crushed chest injury causing brain damage. He was being fed through a tube and the opinion made by all doctors who examined him was that there was no hope whatsoever of recovery. The Health Authority took the case to court to ask to end his life with the least pain, suffering and distress possible. The patient’s parents and family supported these actions. The judge granted the declarations sought. Lord Hoffman said, “When deciding whether Bland should live or die there could be no difference between law and morality, they were one and the same.” This shows that even judges believe that in some circumstances the law should be juxtaposed with core moral attitudes on issues so important as those of life and death. Here the courts made a decision based on the state of the victim, and in allowing the termination of his life they accepted that it was morally wrong to allow a person to be ‘an existence’ rather than a life. 

Another case decided in the same year was R v Brown [1993] 2 All ER 75, in which a group of sado-masochistic homosexuals willingly participated in the commission of acts of violence against each other for sexual pleasure. These activities took place in private locations and video cameras were used to record the activities, members of the group-received copies. The appellants were tried on charges of assault occasioning actual bodily harm, contrary to s 47 of the Offences against the Person Act 1861, and unlawful wounding, contrary to s 20 of that Act. Following a ruling by the trial judge that the consent of the victim afforded no defence to the charges, the appellants pleaded guilty and were sentenced to the terms of imprisonment. An appeal was made but it was dismissed.  The decision was made due to public policy requiring that society be protected by criminal sanctions against a cult of violence. Again, this case is a clear example of when the Law uses its powers to intervene to protect society.

        These cases highlight the need for a connection between Law and Morality when the courts feel it is necessary. The Law therefore is seen not to follow moral values but instead to enforce them within the community as well as preserving Law and Order. It would be somewhat impossible to completely separate Law from Morality, as there are many crimes, which are seen to be both illegal and immoral. For example, rape and murder. Why would we outlaw such acts if they were not wrong and harmful to society as a whole? It is clear that personal moral views should not be imposed and that the Law does not take into account those minor moral issues which have little impact upon the rest of society, it is though held by many theorists that the more grievous immoralities, particularly those harmful to others, should always be deemed illegal.

A similar case to that of R v Brown, was that of R v Wilson (1996) 2 Cr App Rep 241. This case involved a man being charged with assaulting his wife contrary to section 47 of the Offences Against the Person Act 1861. The appellant admitted using a hot knife to brand his initials onto his wife's buttocks. The judge stated that he was bound by R v Brown (1993) and so was convicted. An appeal was allowed and it was proposed that consensual activity between husband and wife, in the privacy of the matrimonial home, is not a proper matter for criminal investigation or prosecution. The outcome of this case contradicted that to R v Brown and therefore showed the public that the Law will not always follow Morality and that what society may deem immoral is not necessarily illegal. It is down to the courts discretion and they will intervene when they feel necessary.

The issue of whether Law should follow Morality was hotly debated in the late 1950’s when public concern arose about the decline in sexual morality. The Wolfenden report declared that prostitution and homosexuality should be legalised with some restrictions. The report gave rise to the debate between Oxford legal philosopher H. L. A. Hart and High Court Judge Patrick Devlin. Lord Devlin opposed the report arguing that some form of common morality is necessary to keep society together and that immorality should be judged by the standard of the right minded person. Professor Hart argued with Devlin’s view and agreed with what the report proposed, he stated that private morality exists and that morality must respond to societies needs. Society has no right to prohibit private consensual behaviour due to the ‘right minded person’ finding it intolerable.

In conclusion, this essay has examined the observations of Lord Coleridge and provided a critical analysis of his views regarding the fact that Law and morality are not the same. It would appear that within the present Legal system the Law not only functions in isolation but also it has clearly been based on morality. Whilst there are problematic aspects of the Law following morality which include the fact that moral attitudes tend to change over time and in doing so the Law would be continuously changing. Alongside this, it is also difficult to pinpoint a set of moral values which society as a whole hold. The courts therefore feel it necessary to intervene only when an act affects or harms society in such a detrimental way. To find a balance between Law and morals within today’s society is a difficult task, which is why the Laws key task remains to protect the public from harmful acts and to prevent such acts from re-occurring. According to Lee a balance between the two is necessary for the good of society as a whole. After all, we are more likely to obey laws if we agree with them.