Positivism emphasizes that separation of law and morality. According to legal positivists, law is man-made or ‘posited by the legislature’. Legal positivism regards law as a system of clearly defined rules. The law is defined by the social rules or practices that identify certain norms as laws.
Law can often be seen reinforcing and seeking to uphold our moral values but this can be seen as a major problem regarding the nature of any moral code. Morals will consistently change over time, to reflect a change in attitudes and the law must attempt to keep up in these situations. An example can be seen in the case of R v R which changed the law so that rape within marriage became a crime. It was viewed that the wife was legally seen as almost the property of the husband via the marriage agreement. This view was morally wrong and outdated and the law seemed slow in adaptation this moral view. If the law is to enforce morals, then it is faced with the problem that what one person considers immoral another might not making it harder to decide which viewpoint should it sanction. This is what was established in the case of Gillick. Where Mrs Gillick sought a declaration that what she saw as an immoral activity (contraceptive advice and treatment available to girls under the age of consent) was illegal regarding its immorality. There was a conflict as some thought it was immoral while other felt it was moral. This shows that if such conflict arises between law and morality then the two can’t be viewed as equal.
Morals can be seen as a set of values that are enforced by the law. They define not how one ‘must’ act but how one ‘ought’ to act and whilst they are not subject to moral enforcement, they can be informally imposed. On the other hand, Law can be related to this culture for example Lord Atkin’s neighbour principle which is the basis of the tort of negligence and derived from the biblical command ‘to love thy neighbour’. With actions like theft and murder they are classed as ‘wrong’ both morally and legally but for crimes such as parking violations they are not seen as immoral, whilst immoral acts like adultery are not a criminal offence under the British Law.
There are various theories on what relationship of law and morals should be. The first theory I have talked about above of St Thomas Aquinas. Aquinas saw it coming from God while Aristotle believed it came from nature. John Mill’s theory of utilitarism which proposed that the moral action was the one that produced good for the many even if it was at the expense of the one.
The Hart and Devlin debate followed the publication of the Wolfenden Report. It recommended the legalisation of prostitution and homosexuality ‘should not intervene in the private lives of citizens or seek to enforce any particular pattern of behaviour further than necessary’ to protect others.
Hart who was influenced by Mill’s theories supported the report’s approach stating that legal enforcement of a moral code was unnecessary and morally unacceptable as it interferes with individual liberty. Devlin, however was strongly opposed to the report on what might be as a natural law approach. He felt that society had a certain moral standard which the law had a duty to support.
The Report supported Hart’s view that law and morality should be separate but various cases decided since the report show that many judges are imposing their moral views in their judgements such as in the case of R v Brown ( defendant’s willingly consented to sado-masochistic practises). Even though none of them complained to the police they were prosecuted and convictions were upheld based on public policy to defend the morality of the society. As illustrated the law is seen to attempt to uphold what it considers to be public morality even if some may dispute the correctness of that moral code.
In conclusion there is a close relationship between law and morals as the law upholds moral values in some cases but the extent to which law should be influenced by morality remains topical.
