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Are the notions of law and morality interchangeable?

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Are the notions of law and morality interchangeable?

Law and morality has always been in conflict with each other .Before we could look in more details if law and morality is interchangeable it would be wise to know the definition of both.

Law, we all talk about law, going in depth, my opinion about law is that it is a type of discipline in human beings lives, stopping people from committing crimes, it is also here to prevent any type of injustice, dishonesty and making our lives smoother  as well as creating a barrier for people to commit frauds, crimes etc.. as they would always have that in mind ,should they commit any offence ,they would be jailed ,fined or for example for drink and drive ,probably a disqualification for driving. So, if law was not here, people would not have been bothered about anything and this world would be in  dilemma .

Law is often conceived by lawyers and others alike, as a set of rules which govern a society and create a structure of authority or government to run the social order.[1]

Now, the question is;” where is law made?, where is it’s source from?”In Britain law are made in parliament in Westminster. In the UK there are five types of legislations of considered by Parliament which are Government Bills, Private Members’ Bill, Private Bills, Hybrid Bills and statutory Instruments.[2]The idea of a new law can come from various factors which are change of government, influence of lots crimes occurring so that to find a way to stop it and many more reasons.

Moreover, let’s define Morality; what is its meaning and the connection with law that we would be know whether the notions of law and morality are interchangeable.

It is essential to know what is moral in itself like I would say that in general terms what is “morality” and “moral obligation”. In particular, some people think it is just a matter of personal opinion but unfortunately it is not as if it was; nobody would be criticise for anything they  are doing and they find acceptable and not reasonable for us.

There are certain statements which depend entirely on opinion and tastes like for example: law is an interesting subject; somebody else could say no law is not therefore we can clearly see that everybody’s way of thinking is different. These types of opinions are neither true nor false which means nobody can question any individual by any defended argument as we’re all free to demonstrate our opinions and wishes.

The second type of statements would be that there are certain things in life that depends on hard facts and would not be able to agree or disagree before knowing the specific fact about it. Statements about moral values fall between those two statements mentioned but little bit closer to the second one as for example it is wrong to steal and this clearly assets that certain behaviour are considered wrong and certain right like an example would be do not cheat for example, study well and prepare in advance .

Furthermore, the connection between law and morality are that they are strong beliefs, principles, norms which provide help in maintaining peace, harmony and discipline in the country. It is a set of beliefs, values, principles and standards of behaviours and such codes are found in every society[3].

Ideas of morality are concerned with the conduct of people in a society. It tells us what is good and bad? Also I would like to add that parents, peer groups, religious beliefs and education play important roles in human being life. It is difficult to find one society which has people that agree with all the moral values that exist in society.  There are always people who do not agree with certain moral values and therefore called “moral rebels”.

Adolf Hitler is often used as an example of what happens to a society when traditional Christian moral and social values are abandoned. In reality, one of the reasons why Hitler was so popular with conservative Christians in Germany was precisely because he promised to restore traditional morality. He opposed abortion, homosexuality, pornography, and just about everything else conservative Christians complained were ruining modern Germany[4]

Hitler and other Nazi leaders viewed the Jews not as a religious group, but as a poisonous "race," which "lived off" the other races and weakened them. After Hitler took power, Nazi teachers in school classrooms began to apply the "principles" of racial science. They measured skull size and nose length, and recorded the colour of their pupils' hair and eyes to determine whether students belonged to the true "Aryan race." Jewish and Romani (Gypsy) students were often humiliated in the process.[5]We can clearly see that Hitler’s and the Nazi leaders’ views were wrong regardless of their own opinions regardless of their own opinions and actions.

The legal system constitute of a certain amount of morality, because if law is not essentially moral there is no explanation of the obligation to obey and people would think they are free to do anything that comes into mind which obviously would prove to be catastrophic.

Professor   Hart said that moral and legal rules are certainly not the same and could easily be distinguished from legal rules and moral rules in several ways for example legal rules could be changed by enactment and the date thus fixed whereas morality changes only gradually if at all. Legal rules are enforced by particular class of people like police, judiciary service and prison service whereby moral rules are enforced through social pressure and not supported by threats or punishments. Also there is no doubt that the law of every modern state is influenced by morality but we should not think that law and morality always coincide as they clearly do not.

In 1957, the Wolfenden committee was formed by the government   to look at whether laws on homosexuality and prostitution should be changed.  As a result of much debate in the 1950’s and 1960’s on whether law should follow morality and where there was much public concern about what was perceived to be a decline in sexual morality.

The outcome of the report revealed that homosexual behaviour between adults who both give consents should no longer be a criminal offence and recommended that homosexuality and prostitution should be legalised, with only some restrictions applied. This reasoning was based on the notion that some areas of behaviour had to be left to human beings’ morality than being supervised by law. The report also explained that Criminal Law was to protect people’s order and decency, to protect citizen from what is harmful, offensive and as well as to provide safety against exploitation and corruption of others especially for people who are more vulnerable. It was mentioned that law should not interfere in the private lives of citizens.  The Committee concluded that outlawing homosexuality to encroach upon civil liberties. The view of seeing prostitution as a crime ceased since it harmed no one except ,if both the prostitute and her client are both happy, consenting which does not cause any harm by annoying innocent  people ,then it was fine and also living off immoral earnings which involves the harm of exploitation  were strengthened.

Among the Wolfenden   Committee, there was Lord Devlin who gave evidence in the Committee and also welcomed the report .After months Lord Devlin started to change his views but while still endorsing the specific   proposals; he began to speak and write against the proposition that at any point   Law should not be used to enforce Morality. Lord Devlin arguments were all set in “TheEnforcement of Morals” published in 1959. Lord Devlin arguments were that morality is not just an issue of an individual judgement and pointed out that any society has certain common morality which are acceptable by all and some which are not acceptable which means could be harmful, cause damage to others. Therefore society has a right to protect its existence and moral values which come along with it. Morality also threatens the life of human being which means any harm caused they should be punished and also mentioned that people with good thinking and moral values  binds society together. We can clearly see that Lord Devlin argument was to do with the welfare of the society and law without morality would destroy freedom of human beings, our freedom to speech as well as thinking.

So now let’s see how is morality to be determined, Lord Devlin said for the ultimate purpose of law , people would consider immorality to be immoral  which is obvious everybody’s point of view is not the same. After that Lord Devlin went on to say that abortion was immoral but that a large number of people did not appreciate this. Hart did not agree with Lord Devlin argument s and insisted that whatever people believe or accept shall be not be equated to morality from a critical point of view.                                                                  

Lord Devlin maintained that some form of common morality on good and evil, was necessary to keep the society running.

.

Professor Hart way of thinking was that there is no connection between law and morality. According to him, the question of what is legal and what moral must is and can be distinguished be each other.  He criticised the approach taken by the Nazi courts that did not recognise Nazi rules as law and the Nazi system as legal.

Sir John Stuart Mill advocated the ‘harm principle’. Let’s try and indentify this principle, so this was based that nobody should be restrained to do an action or movement, as long as he does not hurt or harm anyone. If a person chooses to hurt himself and no one else, for example by taking any kind of alcohol, drugs, he or she should not be prevented from doing this action. This is because he or she has the right to do that even if it is considered as immoral or not seem to be acceptable by other individual. Mill also described that law should be used to prevent others from harm instead of using to protect a particular morality but however Mill defined harm as a physical harm and did pay any attention to psychological or emotional harm. When considering his principle, in reality, people can be deeply harmed by other people’s actions, be it physically or mentally. Hence his principle cannot be said to be practical.

Professor Hart was influenced by Sir John Stuart Mill, and he was the one who led the opposition approach to Devlin’s principle. He argued that using law to enforce moral values was not practical and morally acceptable because society was capable of containing many more moral standpoints without disintegrating. Hart was of the view that when people object to unusual behaviour, the response is not always prompted by rational moral objections, but often by prejudice, ignorance or misunderstanding. He further added that as far as sexual morality is concerned, the suppression of sexual impulses affects the development or balance of the individual’s emotional life, happiness and personality and, thus causes them harm. Hart strongly objects to the idea that the law should punish behaviour which does not harm others, but merely causes them distress or disgust by its very existence, even when conducted out of their sight.

Both Hart and Devlin raise important issues. Devlin's view is idealistic and focused on the majority rule whilst Hart’s is more preoccupied about people’s lives.

Lon Fuller argued that law and morality cannot be neatly severed. On the Nazi issue, Fuller’s opinion was in contradictory to Hart’s, as Fuller agreed to what the court decision was.  To him, law has to incorporate what he calls ‘inner morality’. Fuller lists a few requirements to fulfil this idea, for example, the law cannot be retrospective or contradictory. Hence, the Nazi laws which did not have any ‘inner morality’ are not law at all. However, a glaring inadequacy of this idea is that it is possible for rules to exist with ‘inner morality’ but yet is unfair or unjust as a whole.

In analyzing  Hart Devlin debate on the recommendations of the Wolfenden Committee, my opinions are that since the passage of legislation legalizing homosexual activity in England, there is not a great deal of evidence that moral standards have been undermined. However this does not mean that supporting values is not an important function of the law but just that the relationship between law and morality is more stronger and requires lot of thinking , opinions before law could be applied as Mill arguments were right the person is not harming anybody why should the law intervene regardless of his actions and behaviour.

Therefore, we can see that morality plays a big role in the society which should  not be harmed as well . One particular example of a  case where public morals were corrupted is   of Knuller v Director of Public Prosecutions[6], the defendants were prosecuted for having published in their magazine, “International Times”advertisements placed by readers inviting others to contact them for homosexual purposes. Once again the charge was conspiring to corrupt public morals and the court convicted in the  court. On Appeal the conviction was quashed. It must be noted that this conviction came about even after the passage of the 1967 Sexual Offences which stated that homosexual acts between consenting adult males were no longer a criminal offence. 

We would not be able to say that law and morality can be interchangeable.

Bibliography

Phil Haris, 1997 An Introduction to law, Butterworths,. 5th edition

H.L.A. Hart, The concept of law(2nd edn,1994)


[1] Mulcahy L ,Stychin Carl F (2007) Legal Methods and systems London Sweet & Maxwell 3rd Edition

[2] http://www.historylearningsite.co.uk/how_laws_are_made_in_great_brita.htm

[3]Phil Haris, 1997 An Introduction to law, Butterworths,.p27 5th edition

[4] http://atheism.about.com/od/adolfhitlernazigermany/tp/AdolfHitlerChristianValues.htm

[5] http://www.ushmm.org/outreach/racism.htm

[6]1973] A.C. 435

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