In addition to this, public morality can also be influenced by changes in the law. For example drink driving laws and the band of using a mobile phone whilst driving have influences public morality. Another example is the case of R V Brown and others (1993) that demonstrated how the law can impose certain moral values. Here, six middle-aged homosexual men were prosecuted for sadomasochistic practice and Lord Templeman stated “society is entitled to protect against cult of violence”. There have also been campaigns to change public morality, which is reflected through law reform, an example being the topic of fox hunting.
We as a whole live in a pluralistic society so it is difficult for the law to reflect differing morals. Therefore, coincide of law and morals may be partial. For example, many people believe that homosexuality is immortal, so law and morality do not entirely coincide here. Other examples include the use of cannabis, cigarettes and alcohol. It can be argued why cannabis should be illegal, where it has been scientifically proved that cigarettes and alcohol are just as dangerous, sometimes even worse. Another recent but widely debated topic is late term abortions. Some believe it is wrong to abort foetuses at 24 weeks, whereas others do not see it as an issue. Where there is no consensus, then it’s left to law makers to decide which moral code the law will reflect. For example, in the Diane Pretty case, Mrs Pretty suffered from a condition which left her paralyzed and unable to swallow and speak. Mr Pretty was not allowed to carry out Mrs Pretty’s wishes in helping her to commit suicide, due to the fact the House of Lords and European Court of Human Rights rejected her application, ruling that the right to life does to include to take it away. She later died in 2002, unable to commit suicide, and she faces, in the House of Lord’s words, “a humiliating and distressing death”.
Sometimes, in these difficult circumstances, law makers often avoid legislating on matters concerning morality. For example, in 1957 the Wolfenden Committee considered the law relating to homosexual acts and prostitution. Its report stated that the purpose of criminal law is to “preserve public order and decency”, “protect people from what is injurious” and “provide safeguards against corruption of others, especially the vulnerable”. It recommended that the law decriminalise homosexual activities between consenting males aged 21 or over. However, this was not implemented until 1967 because the government at that time said that the public was not ready for such a change.
There are two different theories with regards to law; the natural law theory and the positive theory. These are linked to the characteristics of laws and the theorists explain their views on whether laws which conflict with moral rules should be valid.
The Natural law theory argues that law must be in accordance with a higher moral code to be valid. If it is not moral, then that law is not valid. Natural law theorists believe that the validity of a law depends upon it’s compatibility with a high moral authority. St Thomas Aquinas and the Greek philosopher Aristotle believed natural law to be the eternal law implanted by God as part of human nature. We therefore have, for example, a natural law inclination to preserve life and procreate. This divine law is revealed to mankind in various religious codes, for example, the Ten Commandments.
Another natural law theorist, Lon Fuller, believed the natural law was earth based. To be valid, a law had to conform to an inner morality and comply with eight principles, including being prospective and possible for people to obey.
On the other hand, the positivist theory believes that a law that is made in a manner recognised by the sovereign power of the state is valid, irrespective to its content. One legal positivist, Jeremy Bentham actually rejected natural law by referring to it as ‘nonsense on stilts’.
John Austin and HLA Hart explain the positivist theory differently. John Austin said ‘The existence of law is one thing, it’s merit or demerit is another. A law which exists is a law, though we happen to dislike it.’ Austin explained law in his command theory. A law is a command from a sovereign whom the population are in the habit of obeying and it is enforced by sanctions.
Professor Hart thought Austin’s theory was simplistic. Hart explained legal positivism in terms of primary and secondary rules. Primary rules impose legal obligation or grant powers. Secondary rules are threefold and include rules of recognition of primary rules, rules of change identifying how legal rules are made and rules of adjudication.
An example of these theories being put forward is the Hart-Fuller debate on the validity of Nazi law on genocide where the Nazi regime discriminated against individuals on racial grounds. In Hart’s view, it was a legal system. The Nazi’s argued that racial distinctions were relevant and reflected in the morality of their society. It was therefore entitled to discriminate and still claim it was treating cases alike. Hart argued that the question of what is law must be separated from the question of whether it is moral or just.
However, Fuller, the natural law theorist, maintains that law and morality cannot be so neatly distinguished and that the post-war courts were entitles to hold Nazi rules not to be law. To call the Nazi system “legal” and call its rules “law” was a false description of what they were. They were instruments of an arbitrary and tyrannical regime.
Another example is the Hart-Devlin debate that was triggered by The Wolfenden committee’s report. Here, the paternalist Lord Devlin believed that “the loosening of morals is often the first stage of disintegration”. This demonstrates that he believed that he believed law should be protective and always uphold morality by restricting a person’s freedom. If is does not, then society will break down. He said that the law should intervene both when a person’s activity causes harm to others, and when it causes harm to himself. Therefore, the laws should be concerned with matters of private morality.
The counter argument to this was proposed by the libertarian Professor Hart, who was influenced by the work of John Stuart Mill. JS Mill said “the only part of conduct for which he is answerable in society is that which concerns others. Over himself, the individual is sovereign”. Therefore, Hart believe that law and morality separate. The law should respect that we have freedom of choice over our conduct, and it should only restrict a person’s conduct when it causes harm to others. It should not intervene when it causes harm to himself. Thus, concluding that the law should have nothing to say on matters of private morality. His views were reflected in the Sexual Offences Act (1967), which decriminalised homosexual activities between consenting males aged 21 or over.
Lord Devlin’s view is reflected in the law around today in victimless crimes such as prostitution. The law is paternalistic in this area. For example, in the case of R V Brown and others (1993), the House of Lords judges considered in the role of criminal law in relation to morality when sex middle aged men were prosecuted for sadomasochistic practise. Here, the majority of the judges followed Devlin’s view by expressing the belief that the law should uphold matters of private morality, even though the activities in this case were consented, the view of the Wolfenden Committee was not followed here.
The law also does reflect Hart’s view. The case of Gillick V West Norfolk concerned the prescription of contraception to children under the age of 16 without parental consent. It was argued that if a person can understand the issues of contraceptive treatment, a third party should not have the right to interfere.
Another example is in December 2000 where the age of consent for homosexuals was reduced from 18 to 16. The decision was made as the rights of homosexuals are increasing to be seen in the Civil Partnership Act (2004) which allows couples of the same sex to be recognised as having the same rights and equal treatment as married couples in a range of areas (e.g. employment).
There are also some issues that are still open for debate but are slightly changing. Such as the Diane Pretty Case (2001) which brought up issues about euthanasia. Although he law still does not aloe this, it is an issue which is constantly under discussion due to the controversial nature and its moral implications.
In conclusion to everything discussed, it is apparent that there are many different views of the link between the issues of law and morality, and whether they should be treated separately. Although there are some laws which do not contain a moral or some moral backing, it is sure that the majority of laws contain moral implications. Whether these laws should reflect moral views, is a topic that is still open for further debate due to the fact the question of laws reflecting the morality of the public remains unanswered.