However, in some cases, the law does not generally lag behind the morality. Sometimes, the law can bring about changes in the way social circumstances are thought at the time of the change. For example, drug use was mainly for the upper and middle classes, and was also legal at the time. However, this then went underground when it was criminalised; which led to the increase in social stigma. Drink driving was in the same circumstance as drug use. Before drink driving was permitted in society, as well as the law. However, recently drink driving has been banned in accordance with the law. This then created social stigma amongst the society.
Due to the drink driving and drug use, Oliver Crona argued that it is the law that creates the morality, rather than morality creating the law. He states that the law has had an impact on us since childhood which shaped the morality of an individual.
By new and more recent scientific development taking place, it makes it harder for the law to keep up to date and with moral views. For example, in the new development of using a husband’s sperm in coma to artificially inseminate themselves; as illustrated in the case of R V Human Fertilisation and Embryology Authority, ex Parte Blood. The HFEA said no to using the sperm as the donor had not consented, going back to the statute law. However, as its new scientific development, the law has had to adapt and change. Therefore, the Court of Appeal allowed Diane Blood to use her husband’s sperm and undergo artificial insemination.
By morality being contradictory, this then occurs in the law. For example, while abortion can be carried out legally, the courts have rejected actions for a ‘wrongful life,’ as illustrated in the case of McKay V Essex. Another example being that doctors have been prosecuted for openly practicing Euthanasia as per R V Cox. However, they withdrew feeding a patient who was in a vegetative state as per the case of Airedale NHS Trust V Bland. Another example being adultery. This is not illegal in the UK, but is morally unacceptable within society. However, the main problem being that what does immoral conclude to? The case of Gillicks illustrates that there can be opposing views to morality, i.e., preventing unwanted pregnancies and on the other hand condemning underage sexual activity.
Salmonds model illustrates the overlap between law and morals. This means that there are some parts of law which are unrelated to moral rules. For example, road traffic, speed cameras etc. these prevent illegal happenings but are not immoral. The aim is to increase the road safety awareness. Similarly, adultery is not illegal but is immoral within society. This is because there are differing opinions on what is morally right.
The Natural Law theory is whether law and morality should reflect each other exactly. However, Natural law theorists feel that law should reflect morality. They believe that much of it is based on religious order, and that there is some kind of higher law that sets out the basic moral code. Supporters of natural law would say that legal rules which did not relate with moral views should be ignored. This is because, the see the ‘higher law’ coming from God, (St Thomas Acquinas), whereas others see it as the cornerstone in society. However, the problem here is that various natural law theorists have different theories with regards to what natural or higher law is.
Positivists feel that if legal rules are made via correct procedures, then the legal rules must be obeyed, even though they may not be liked and are in conflict with morality.
Another theory being that utilitarianism. The best exponent of this theory is John Stuart Mill. He argued that society should not impose morality on individuals. Individuals should be free to do what they want in society and behave how they want, but they shouldn’t cause harm to another member of society. If, however, there is harm done, this should not outweigh the harm that denying individual liberty would do. There are problems in relation to harm. Meaning what concludes or means harm? Harm could be referred to as physical harm, or another type of harm. For example, pornography, whereby women are being promoted as sexual objects. This is because it creates more of a demand so individuals are being forced into this industry, those people who don’t want to but have no option but to. As illustrated in the case of Shaw V DPP. Here, they are increasing the rate of public turning to prosecution. Us general public, even though some may feel it to be morally wrong, others may carry on creating more of a demand.
Another example being abortion. With regards to John Stuart Mill’s theory, an individual should have the right to abort their own child. This is taking a life, involving another human being. This creates the problem as to what is termed as ‘other member,’ of society? Does this include embryos or foetus? However, people would consider an embryo as a non-living thing as its still in the existence of its mother has not yet departed, but some people may consider it as a living thing.
Another theory being the victimless crimes; this includes those crimes where there are no victims. People say that these are the sorts of doings that should not be crime at all. This was stated by Edwin Schur 1965. He argues that victimless crimes that only do harm to the ‘criminal’ should be decriminalised. For example, drugs, homosexuality, abortion etc. He states that if these types of activities are criminalised, the demand for them will still be there, however, they will just be pushed underground.
In 1957, the Wolfendan committee was set up with regards to public’s concern over what was seen as a decline in sexual morality in society. They were asked to examine and consider a range of moral issues. Professor Hart and Lord Devlin developed the debate about Mills harm to others principle. He realised that morality is essential to society’s existence. There should be some kind of basic common morality. He believed in a morality based on facts, society should tolerate what a reasonable man would tolerate, and where conduct is so immoral that the reasonable man would feel disgust, and society would ban that activity. The laws should be concerned with the minimum standards, not the maximum standards. Devlin felt that the law should support those moral principles. The judges have a residual right to protect and preserve some sort of common morality. This was illustrated in the case of Shaw V DPP. Here the House of Lords invented the crime of conspiracy to corrupt public morality to cover the situation. In the case of Brown and others, the judges were imposing a certain standard of what was called as acceptable behaviour. However, the case of R V Wilson states that the courts have stated that it was entirely a private matter and therefore the law should not intervene.
Professor Hart developed more on Mills theory of causing harm to others principle. Here the law will have to intervene in this matter, not because it is wrong, but because the conduct is harmful. Professor Hart focuses on the whole of society. Some individuals would want to be protected by the law, which opposes Harts view of the law having no right to intervene in private morality. The criticism for Professor Hart’s view is that the issue of harm arises, but not clearly defined, yet the law still depends on it.
To conclude with, since the Hart V Devlin debate, many discussions and cases along with the court have supported Lord Devlin’s view. However, the recent event of the Human Rights Act 1998. Suggest that there may be a slow move towards a liberal view.
