Any application of a legal rule, especially by a judge, implies or presupposes a moral decision, that is, the decision that the legal order in which that rule is valid is all in all just or moral enough to deserve our approval and claim our allegiance. Legal Positivism, as I understand it, asserts both a thesis about the social nature of law and a thesis about the separation of law and morality. The Social Thesis claims that what counts as valid law is a matter of social fact and that legal norms can be distinguished from other social norms by virtue of having the right sort of pedigree. Hart claims that every legal system contains a rule of recognition that specifies the criteria that officials of that system employ (even if only implicitly) in identifying appropriate legal behavior.
By contrast, the Natural Law tradition, insists on the inseparability of law and morality due to the connection between them. The tradition debates about the connection between law and morality – whether moral content is a condition of legal validity – can be extended to legal interpretation. The traditional Natural Lawyer should think that legal interpretation necessarily involves good moral reasoning and cannot represent the law as immoral to any significant degree, whereas the traditional Legal Positivist should think that legal interpretation does not necessarily conform to good moral reasoning and can deliver conclusions about what the law is that represents it as significantly morally defective.
Keep in mind that Law and Morality is not necessarily the same thing. In criminal law, law and morality often coincide. For example, there are laws against theft, fraud, assault and murder; theft, fraud, assault and murder are morally wrong. This coincidence or overlap between much of the criminal law and some moral principles is no accident: the criminal law is fundamentally about ensuring the protection of basic moral rights, including the right to life, to liberty, to physical security and to property. The moral rights enshrined in the criminal law and those regarded as fundamental by the wider society; they constitute the basic moral norms of the society.
There a few reasons on why legal and moral rules often overlap, one is due to the fact they both aim to impose standards of conduct to help society function. Law and morality also reinforce and supplement each other. Moral codes can be seen to underpin legal rules, and finally both moral and legal codes set out rules for conduct and codes of practice for behavior.
There are some legal rules which have no moral connection at all, for example tobacco and alcohol are both addictive substances which can cause serious illness or death but they are both legal. However cannabis is seen as a non addictive substance that only cause problems over a long term extensive use but is seen by the law as an illegal substance.
Some moral codes aren’t enforced as well, for example there is no moral obligation in our society to help those in danger, unless a duty of care has been created as was seen in the cases of R –v- Stone & Dobinson and R –v- Dytham. Some say the main reason for this is because Law makers are trying to keep a balancing act between becoming a “nanny state” and being inefficient. The Government has to decide whether more social harm may be created than prevented by legal intervention.
A few questions which the House of Parliament still needs to be legislated upon are:-
1. Should prostitution be legalized?
2. Should euthanasia be allowed in certain circumstances?
3. Should the death penalty be reinstated for heinous crimes?
In the media it was said 90 patients died in the hospital due to them being unhygienic, a hospital is the place you would expect to make people better and not harm them. It was said that “nurses at the trust were too rushed to wash hands and left patients to lie in their own excrement.” Is that right? To leave 90 patients alone while a dangerous infection clostridium difficile is spreading to the patients?
It is also said that “For many of these patients there may well have been a good chance that they would have recovered if all steps had been taken” why weren’t those steps taken?
Is this morally right not to help them as much as they could?
All in all One of the difficulties for law is that not only is the society pluralistic, with a wide range of views on all moral issues, but also that these views are sometimes passionately held, allowing little scope for compromise.
