Discuss the extent to which the law is influenced by moral values and consider how far it should be so influenced.

Clint Aaron Sinclair 23/04/2004

Discuss the extent to which the law is influenced by moral values and consider how far it should be so influenced.

Law can be defined in various ways, but possibly the best of these describes it as “a rule of human conduct, imposed upon and enforced among, the members of a given state”(Law made simple). Humans by nature are sociable animals, which tend to form societies for go co-existence with others. Laws were therefore drawn up to ensure that members of that society could live and work together in a peaceful and orderly manner. The larger the community, the more numerous and complex these laws tend to be.

Morality on the other hand can be defined as the unwritten social laws that imply correctness of certain behaviours and acts. Unlike Law, there is no official monitoring system and no specific sanction brought against an individual, were they to contradict moral codes, although there are consequences for such action.

Initially Law was developed in England from moral views held by the people of the time. Both are normative in that they specify what ought to be done and aim to mark the boundaries between acceptable and unacceptable conduct.

Mary Warnock, an academic involved in inquiries into issues of moral concern says, “I do not believe that there is a neat way of marking off moral issues from all others, some people, at some time, may regard things as matters of moral right or wrong, which at another time and another place are thought to be matters of taste, or indeed to be matters of no importance at all”.

A case that caused much controversy was that of R v Human Fertilisation and Embryology Authority ex parte Blood (1997). In the case, the husband of Diane Blood fell into a coma. The husband had asked for samples of his sperm to be collected for future IVF. The husband died, and the Human Fertilisation and Embryology Authority (HFEA) prevented the research trust from releasing the sample on the grounds that the applicant had not left written consent that the sample could be used. The applicant sought judicial review, and was permitted to use the sample. The HFEA was not considered to have initially made the wrong decision in not releasing the sample. Instead it was appreciated that the circumstances were exceptional and Parliament had not considered it when writing the statute. Consequently the courts showed the level of flexibility of the law, debatably it could have been either morally wrong for the courts to arrive at that decision. This does however emphasise that the law can be independent of traditional moral views.

A contrary example to this however is in that of the birth of Dolly the sheep. In 1997 the HFEA and the Human Genetics Advisory Commission (HGAC), published a consultation paper inviting views on various issues raised by cloning. The most controversial question concerned the cloning of a human being. The issue is constantly debated, however the position of the HFEA at the moment is to not allow human cloning of any kind. Although this could assist in medicine around the world, i.e. reproducing organs for patients, there are high risks involved in cloning for the individuals’ identity, and the ...

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In the Case of R v Brown & others (1993) where six middle-aged men were prosecuted for a variety of offences arising from their soda masochistic practices. All had given consent, but were prosecuted in the House of Lords under GBH.

The decision was made because 3 of 5 judges believed that society needed to be protected from certain immoral, and violent acts.

However in the of R v Wilson (1996), a man was convicted of assault for branding his name with a hot knife on his wife’s buttocks. The defendant’s wife had given consent to the act, but a doctor reported the incident. The court saw no criminal acts had been performed, with the idea that what a married couple chooses to do in their bedroom is their own choice.

Another highly controversial issue that has been contested on many occasions is that of euthanasia. Euthanasia in England was completely illegal until 1993 in the case of Airedale Health Authority v Bland. There was a young man who had been injured and fallen into a coma. Kept him alive in his vegetative state with food and healthcare, they however requested removing the patient’s food supply thereby inducing death as a side effect. This was allowed under the conditions that the patient died from his injuries, and not aided by the doctors. For this reason Diane Pretty who requested aided euthanasia, was rejected because it was not considered to be in her best interest for the courts to allow her death. This change in the stance of the judiciary on euthanasia showed that the law could change and discard was considered old-fashioned ethics, however, the case of Diane Pretty showed that the court is only willing to tread carefully, a slowly adapting the law outside traditional moral boundaries.

The issue of whether or not law should be influenced by morality was heavily debated during the 1950s. The government of the day had set up a commission to investigate whether laws around homosexuality and prostitution should be changed. The finding of this was published in the Wolfenden Report. In the centre of these debates were a leading judge, Lord Devlin who opposed the report, and professor Hart a liberal who approved of it.

As a liberal Hart believed basically, that people should be left their own devices, as long as they didn’t harm others. The report suggested that the law had no requirement to go any further in dictating the lives of individuals, than to protect each individual from harm. Implying that homosexuality, and prostitution should be decriminalized with certain controls.

Lord Devlin argued that some form of common morality of good and evil had to be maintained to protect society. Devlin believed that society would only be protecting itself by retaining certain moral ethics that it had already developed. However, one can never truly say what is good or evil in some situations such as allowing a suffering person to die. Hart’s opinion on the matter was that opinions on morality, which changes, should be reached through informed and educated discussion with a democratic system of deciding which should prevail.

Devlin believed that there should be a set of basic principles that should be followed by the legislature. Firstly he believed individuals should be allowed maximum freedom, consistent with the integrity of society and privacy should be respected as much as possible. Secondly he believed that punishment should only be to those who disgust the right-minded people, and the law has the right to eradicate any practices that is an offence. He also said that lawmakers should be slow to changing laws that protect the morality of our society. Thirdly, society should set down a minimum standard of morality.

Hart’s views immediately contradict Devlin’s. Hart contested that if one was to follow these principles, morally society would be frozen, the individual would not be free and that these protective measures were unnecessary because society had survived major moral shifts. There is also the fact that each person is an individual with unique experiences and morals, therefore what could one regard a right-minded person.

Thus hart suggested his own principles under which he believed society should act.

Hart considered the law should only be used to prevent some harm. Hart elaborated on this point by explaining that he meant not merely physical harm, but also psychological. This would imply that he agreed that pornography should not be displayed in shop windows, however, if an individual wants to buy or sell the product, they are free to do so. Hart’s definition of Harm however, is still very vague. If one person claimed to be psychologically harmed by another individual, then who was to argue? Further clarification is needed in this particular Topic in order to allow Hart’s ideals to become practical.

To an extend it is evident that law is and has been influenced by morality, and that cases regularly appear that test the position of the judiciary on specific moral issues.

To say that law or is not influenced by morality would be too vague a statement; many of the above cases appeared to have similar moral dilemmas, however the law handled them in different ways. This could possibly be an indication that morality is not universal; instead it is an individual’s idea of what is right or wrong. As society grows, so will public opinion, and eventually, if enough people agree then our new morals will become the law. Arguably it could also be said that maybe one day, all of our morals will reflect the law, for the sake of society.