The difference among the legal and moral duties and rights is not only a difference of meaning. It is also a difference between formally and institutionally recogonized duties and rights and their informal and non-institutional equivalents. These principles out side the ambit of law signifies that we ought to treat certain actions and interests rather as if they formed part of the institutional apparatus that formulates the law.
The discussion for the existence of a vital relation between law and morality does not
3H.L.A. Hart, The concept of law(2nd edn,1994)p 268
depends upon the society in question having a constitution that refers to moral criteria, for example bill of right. Some societies the number of authentic sources includes some that incorporate moral considerations. Moral considerations are positive in the sense of being formally recognized in the society as relevant to whether something is or is not law4.
The relationship between law and morality is not an easy one. The legal system assumes a certain amount of morality , because if law is not inevitably moral then there is no easy explanation of the obligation to obey, both moral and legal rules have some common traits, 5they share a general (though not necessarily) habit of obedience with in the society to which they apply, and a “critical reflexive attitude” (a sense of “ought-ness”). Moral rules and legal rules are not the similar to each other, they have various ways in which they tend to differ:
1: Morality cannot be changed intentionally, its change is gradual and subject to will of people, where as law can is open alterations at any time.
2: Morality is a voluntary act with no formal force of sanction behind it, the deriving force is human consciences and individual’s sense of shame & social censure, Law clearly has laid down certain obligation binding with the force of sanction breach of which may result in action of law against transgressor,
3: Morality is enforced by social pressure public opinion and isolation from rest of the
4 H.L.A. Hart, The concept of law(2nd edn,1994)p 268
5 T.Honor, Making Law Bind(1985) 106-14
society, legal rules are enforced through state organs delegated with these powers such as Police, Judiciary and prison service.
There are many ore human acts deemed as to be immoral yet they are comfortably be marked very much legal. On the same footing some behaviours are illegal but cannot be termed as immoral, parking on a double yellow line is purely legal matter but morally it fine, on the other side staring at one some(especially women) has got nothing to do with legality but it is considered immoral. Having relation out side the wed lock is not illegal but it is considered highly immoral and furnishes ground for divorce. This can be seen in the case of Gillick v West N or folk and Wansbeck area health Authority(1986)6 . At present in every modern state law is influenced by moral considerations. “All human beings are entitled to the same human rights, but only two hundred years ago the prevailing morality of Western Europe and America was that black people were less than human”7.
Where the morality of society change the, the law may change with it. It was recognized in the mid-20th century that arbitrary discrimination bade on a person’s colour, caste, creed ,breed, faith is wrong. The Race Relation Act 19668 effect to this rules,
6 the summary of this case tells that the claiment, Mrs Victoria G Click was a Roamn catholic. She objected to advice given to doctors from the department of health and social security that ,in exceptional cases they could offer contraceptive advice and treatment to girls under 16, with out parental consent.Mrs Gilick sought a declaration that this advice was illegal because it encourages under –age sex.Mrs Gillick lost at first instance, won in the court of appeal and lost by a majority in the House of lords. The Hose helod that the Guidelines were lawful because they concerned what were essential medical matters. In this field. Girls under 16 had legal capacity to consent to medical examination and treatment, including
7 Bentham,J: Introduction to priciples of Morals and Legislation,ed.JH Burns and HLA Hart,1970.
8 The Race Relation Act 1966
dsintroducing new set of offences of inciting racial hatred and a new tort of unlawful racial discrimination and constituting a Race relations Board to tackle unfair practices. Home sexuality and abortion rules Abortion Act 19679 are the best examples of changing attitude towards these previously considered immoral acts.
The issue of law and Morality was hotly discussed in the mid-twenthieth century and a Wolfenden Committee Report suggested that homosexuality and prostitution should( with some restrictions) be legalized. In the Sexual offences Act 196710 , the homosexual acts for consenting adults in private were also made legal. In the case of Laskey Brown & Jaggard v United kingdom11, the European court of human rights was upheld
Contraceptive treatment,as long as they were sufficiently mature and intelligent to understand the nature and implications of the propose statement.The majority,in reaching this conclusion, stressed they were merely applying the law as it stood rather than taking a moral standpoint , the minority referred to the kind of moral arguments Mrs Gillick had advanced. This does not mean that, in rejecting MrsGillick’s view,the majority ignored morality, even though they claimed to be making an objective decision .It could be argued that if teenage girls were likely to have sexual intercourse anyway ,preventing doctors from giving contraceptive help would simply increase the chance to unwanted pregnancies and it would, therefore be moral to protect girls from that. Neither approach is objectively wrong or right; in this, as in many areas,there are opposing moral views.
9 Abortion Act 1967
10 Sexual offences Act 1967
11 Laskey Brown & Jaggard v United kingdom[1997] 24 EHRR 39, ECHR.
decision by house of Lords stating that accepting the breach of defendant’s right to respect for their life but said it was justified for the protection of health and /or morals.
As discussed in detail before that relationship between law and morality proves to
interconnected. Morality is considered as a important part of natural law and essential source of getting ideas in law making. Legal system history has number of precedents of the conflicts settled in the light moral rules and subsequently becoming part of prevailing law of the country. It would not be wrong to say that many improvements and amendments were the direct result of seeking guidance from principles of morality.
BIBLIOGRAPHY
BOOKS
1. Phil Haris, An Introduction to law,5th edition, butterworths,1997.p27
2. Slapper & Kelly,The English Legal System,7th edn 2004
3. H.L.A. Hart, The concept of law(2nd edn, Butterworths1994)p 268
4. T.Honor, Making Law Bind(1985) 106-14
5. Bentham,J: Introduction to priciples of Morals and Legislation,ed.JH
Burns and HLA Hart,1970.
Cases
- Gillick v West N or folk and Wansbeck area health Authority(1986). All ER.
- Laskey Brown & Jaggard v United kingdom[1997] 24 EHRR 39, ECHR.
STATUTES:
- The Race Relation Act
- Abortion Act 1967
3. Sexual offences Act 1967
