THE DIVERSITY OF MORAL VIEWS
On problem with morals values is the fact they can differ wildly. A French sociologist, Durkheim, argued that it is nearly impossible to find a single set of moral values that would be acceptable to all the members of a modern society.
The views of different societies and even within society can vary significantly on difficult ethical issues such as euthanasia, pornography and prostitution; even subjects as diverse as foxhunting, sex before marriage and body piercing cause great controversy.
There seem to be certain core morals which are accepted by everyone, and these are usually associated with life and death. However, even then there is also disagreement. While some people see any form of killing as wrong, there are other people who believe that there are some forms of killing that are not considered morally wrong. For example, some people believe that abortion and mercy killing are not morally wrong.
Morals also clearly change and develop. Views on homosexuality have changed dramatically since the trial of Oscar Wilde, and now the argument is more over whether or not gay people should be able to legally parent children, than whether or not their sexual activities are acceptable.
THE DIFFERENCES BETWEEN LAW AND MORALITY
Laws and morals differ in many ways.
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Morality develops over a long period of time, while is possible for Law to be introduced instantly. Morality cannot be deliberately changed; it evolves slowly and changes according to the will of the people. Law can be altered deliberately by legislation; this means that behaviour, which was against the law, can be ‘de-criminalised’. Equally, behaviour which was lawful can be declared unlawful. For example, Mephedrone (meow meow drug) was made illegal in December 2010.
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Morality depends on voluntary codes of conduct, whereas, law is enforceable. Many morals are difficult to enforce if not unfair, for example, Gillick (1986). Breaches of moral codes usually carry no official sanction (though some religions many ‘excommunicate’. Morality then relies for its effectiveness on the individual’s sense of shame or guilt. Law, on the other hand, makes certain behaviour obligatory with legal sanctions to enforce it.
- Breaches of moral rules are not usually subject to any formal adjudication, while breaches of law will be ruled on by a formal legal system, usually in the courts.
THE RELATIONSHIP BETWEEN LAW AND MORALS
Both Law and morality are said to be normative. This means that they both dictate the way in which people are expected to behave. Moral value can clearly have an influence on how laws are made, and some people would argue that the criminal law represents a common moral position.
The moral standards of a community are recognised as having a significant influence on the development of law, but in complex societies, morality and law are never likely to be coextensive. Major breaches of a moral code, such as murder and robbery, will also be against the law, but in other matters, there may not be any meaningful consensus.
The law may appear to be based on moral values, but not all laws will be accepted by everyone. The obvious example is the Abortion Act 1967. The act was introduced to ensure that women were having abortions in proper clinical conditions. At the time of the act, there was much publicity regarding horrific injuries and even death caused by back-street abortions. However, groups such as LIFE and the Association of Lawyers for the Defence of the Unborn Child contest the morality of abortion. In contrast, many in the women’s movement see that the law should be changed and extended so that it reflects a woman’s right to choose what to do with her own body.
Another example is the Civil Partnership Act 2004. Some people believe that it is immoral that gay people can get married and raise children like a nuclear family. They argue that it can destroy a child’s way of thinking. However, other people believe that it is a good thing that the law is now recognising gay people in the society, and it is giving them more opportunities to do things that would otherwise be illegal in the olden days.
Moral contradictions can also appear in the law. For example, doctors have been prosecuted for openly practicing euthanasia as in R v Cox but withdrawing feeding so that the patient in a permanent vegetative state would die was accepted in Airedale NHS Trust v Bland.
Other contradictions involve sexual morality. Many would argue that sex outside marriage is morally unacceptable. However, this viewpoint does not necessarily reflect the law. Similarly, the use of nudity in the sun newspaper may offend many people’s moral sensibilities but they are not against the law.
NATURAL LAW AND POSITIVISM
A major debate is whether law and morality should reflect each other exactly. The idea of natural law is that the two should coincide and that there is a divine source for the law. The supporters of natural law would say that if the legal rules of a country are in contrast to the moral laws, the legal rules should be disobeyed.
Positivists, on the other hand, hold that if legal rules have been made by the correct procedures, then those legal rules must be obeyed, even if they are not liked are in conflict with morality.
THE HART DEVLIN DEBATE
Professor Hart argues strongly that there should be a clear separation of law and morality. He felt that morality was a matter of purely private judgement and that the state had no right to intervene in private morality, and that it was also wrong to punish people who may have done no harm to others. An example is to do with bigamy. Professor Hart would argue that it shouldn’t be made an offence for someone to marry more than one partner because it does not harm anyone and it is a private matter.
On the other hand, he felt that a legal system should be based on logical ideas producing ‘correct’ decisions from rules.
However, he also did admit that society could not exist without a form of morality which mirrors and supplements the legal rules.
Lord Devlin felt laws and morals should go together even if the public opinion was changing. He also argued that the judges have a residual right to protect and preserve some sort of common morality. An example of judges excising this right was in Shaw v DPP (prostitute photos and sexual behaviour). In this case, the House of Lords effectively invented the crime of conspiracy to corrupt public morality to cover the situation.
English law continues to take this line in some cases. A strong example was the case of R v Brown (gay men took part in sad-masochistic acts. Ds were found guilty even though they gave their consent). Even then, the contradictions in law can be shown when the case is compared with R v Wilson (branding). The court of appeal accepted that a man branding his wife’s buttocks with his initials could not lead to a criminal conviction because it was consensual on the wife’s part and was entirely private matter in which the law should not intervene.
THE LEGAL ENFORCEMENT OF MORALS
In criminal law, morals figure very largely in the whole area of sexual offences. An example is the use of strict liability in some of the offences in the Sexual Offences Act 2003. This was illustrated in R v G (2008). A 15 year old boy had sex with a 12 year old girl because he believed she was 15.
The homicide offences and the non-fatal offences also have their roots in the moral view that it is wrong to kill or physically to harm another person with no justification. Even within these offences, the use of partial defences of murder can be seen as having a base in morality. For example, it would be wrong to convict a person of murder whose reasoning was impaired by an abnormality of the mental functioning, as with diminished responsibility under section 2 of the Homicide Act 1957.
