Law and Morality

Rules exist in many contexts, not just in the case of legal rules or even moral rules. The term rule has been defined by Twining and Miers as ‘a general norm mandating or guiding conduct’. In other words, a rule is something that determines the way in which we behave, whether because we submit ourselves to it voluntarily, as would be the case with moral rules, or because it is enforceable in some general way, as would be the case with laws.

Rules either develop through time, reflecting current ideology or through custom or practice, and would thereby involve the disapproval of the community if broken.

Rules are generally obeyed because:

They carry with them a sense of moral obligation. The very nature of the word Tort (meaning wrong) indicates that there is a good deal of morality attached to it, and that people should be free from invasion with their personal life or property.
It is reasonable and relevant, and this clearly didn’t apply to the Poll Tax of the 1980’s which was thereby duly repealed
Penalty may be imposed if the rule is broken, despite personal disagreement; compulsory seat belts still had to be obeyed.

So it is possible to describe law as the body of official rules and regulations, governing found in constitutions legislation, judicial opinions and the like, that is used to govern a society and to control the behaviours of its members, so law is a formal mechanism of social control. Legal systems are particular ways of establishing and maintaining social order.

Whereas, it could be concluded that being moral means conforming to standards and principles, so moral values lay down a framework for how people should behave. Morality is generally to do with beliefs, so may be affected by religion (e.g. the Ten Commandments on Christians). We all have a moral code of some kind which defines what we think is and is not acceptable behaviour, but concept of morality differ from culture to culture, although nearly all outlaw extreme behaviour such as murder, inevitably, morality has an impact on law. Very often it concerns behaviour of a sexual nature and leads to controversy.

Despite the fact that law develops from a shared morality, there are significant differences between the two.

Morality develops over a long period of time, while it 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. In the late 19th century, the author Oscar Wilde was ruined and imprisoned over his homosexuality. Now gay couples have rights to a sexual relationship as heterosexual couples. It has taken society time to accept or tolerate homosexuality, but other behaviour can be declared lawfully overnight.

Morality inevitably depends on voluntary codes of conduct whereas law is enforceable. Breaches of moral codes in general carry no ...

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Morality inevitably depends on voluntary codes of conduct whereas law is enforceable. Breaches of moral codes in general carry no official sanction, but they rely on its effectiveness on the individual’s sense of shame or guilt, whereas Law makes certain behaviours obligatory with legal sanctions to enforce it.

One of the key problems with morality is that while many moral views coincide, there are also many that differ. A French sociologist, Durkheim, suggested that it is almost impossible to find a single set or moral values that would be acceptable to all the members of a modern society. Issues or topics such as Euthanasia, pornography, prostitution, foxhunting all cause great controversy.

Mary Warnock, and Academic, believed that some people, at some time, may regard things as matters of moral right or wrong, which at another time or in another place are thought to be matters of taste, or indeed to be matters of no importance at all. Moral attitudes tend to change over time as we have come to see with cohabitation, homosexuality and women’s liberation.

Morality is personal to the individual, but law must be universal to society, but both the law and morality are said to be normative. This means that they both dictate the way in which people are expected to behave. 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 positions, but ones not accepted by everyone. The obvious example being the legalisation of abortion under the Abortion Act 1967. The act served a vital need in ensuring the safety of women so that they should have abortions in proper clinical conditions. At the time of the Act, which stated as Davis Steel’s private members bill, there was much publicity regarding horrific injuries and even death caused by back-street abortions. Nevertheless groups such as LIFE fiercely contested the morality of abortion. Indeed, the case of Gillick vs. West Norfolk and Wisbech AHA (1986) demonstrates that there are individuals who forcefully rejected the idea of giving contraceptive advice and support to underage girls without parental consent, despite the evidence of the scale of the need demonstrated in the figures of teenage pregnancies.

In contrast, many in the women’s movement saw 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.

Moral contradictions can also appear in the law with doctors being prosecuted for openly practising euthanasia as in R vs Cox (1992) (where a doctor aided a patient to die), but withdrawing feeding so that a patient in a permanent vegetative state would die was accepted in Airedale NHS Trust VS Bland (1993). In Re B (2002), it was confirmed that a competent adult may refuse medical treatment, even if the likely result will be their own death, but R (on application of Pretty) vs DPP (2001), it was held that the Director of Public Prosecution did not have the power to give an undertaking that he would not consent to prosecute the husband of a terminally-ill woman if he helped his wife to commit suicide. So despite all the concerns about morality and sanctity of human life, a person can choose to refuse life saving treatment and thereby die, but a person in equally the same pain but not hospitalized can not legally exercise their right to self determination.

Despite their overlapping, there as being numerous debates as to how far and if at all law and morality should reflect each other. This debate came to head with the Hart-Devlin Debate after the finding of the Wolfenden Committee of 1957 who were told to examine and consider a range of moral issues, they recommended that both prostitution and homosexuality should be legalised.

Professor hart approved the finding of the report and argued 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 (he was reiterating Mills “harm principle” where the only time law can be used to prevent someone doing an act is to prevent harm to others).

Lord Devlin felt that society required the observance of certain moral principles and, even if public opinion was changing, the law should still support those moral principles. He also felt that the judges have a residual right to protect and preserve some sort of common morality. This was exercised in Shaw vs Dpp where the House of Lords invented a crime of conspiracy to corrupt public morality in respect of a contact magazine.

English law continues to take this line in some cases as we saw in R vs Brown where a group of men took part in sadomasochistic could not consent to harming each other’s genitalia. The very moral justification given was that it was not in the public interest to allow such behaviour, for the possible corrupting effect on other people. However, the Court of Appeal in R vs Wilson held that a wife could consent to her husband branding his initials in her buttock with a hot knife, again morals formed part of the reasoning, it was not the role of the courts to interfere in the private pastimes of husbands and wives in a domestic context.

This a perfect example of the judiciary willing to move the goal post and prohibit behaviours they think society will be wronged. The question therefore is, who should say what should be prohibited? Should it be parliament, our elected representative, or judges, entrusted to save the society, but not elected by society, and as we can see, susceptible to partiality

The use of a partial defence to murder can also be seen as having a base in morality. Hence the notion that it would be wrong to convict a person of murder whose reasoning was impaired by an abnormality of the mind, as with diminished responsibility under s2 Homicide Act 1957

The defences also in many ways reflect morality. In insanity for instance, the defendant has a defence because he does not known that it was wrong. The rules on voluntary intoxication demonstrate society’s natural repugnance for acts done while under the influence of alcohol or drugs. Even in the case of involuntary intoxication, the case of R vs Kingston was in many ways a moral judgement

All in all, I believe that since the early 60’s with the granting several freedom of expression, we as a society have gradually being moving away from our paternal stance and towards a more modern pluralist attitude of self-government, especially concerning race relations and sexuality, the argument is no longer whether homosexuals should be tolerated, but whether they should be given parental responsibility like heterosexual couples. In a sense, it shows that we are finally moving away from religious beliefs.

We will never be able to separate our law from representing our moral stance, as great and bless a race we are, our greater flaw is our inability to stay impartial. Our personal ideology always affects our judgements and with each of us being unique, we are bond to disagree from time to time. I guess society is more liberal nowadays, we want to be able to decide when to do what we want to would hurt no else as in euthanasia, but religious and morality bodies are very powerful and know how to persuade, ultimately, I believe we government should follow the Utilitarian approach developed by Jeremy Bentham and great happiness of the greater number. Most now accept abortion as a way of life and self determination, so it should stay legal, but when it comes to murder, who has the right to say when one can keep their self or stay alive, ultimately we are trying to play God with human life, and nothing cause as much controversy and it. We contradict ourselves by saying that all killing is unlawful except in self-defence of course but we allow doctors to left patients die, when we refuse others so clear unwilling to be alive because of their suffering like Mrs Pretty, Euthanasia is a tricky subject because its legalisation who be open to abuse and personal condemnation from sectors of the public , but its criminalisation leaves some in desperate conditions, but, I ultimately believe that our law should comply with our morality unless this morality becomes so unjust that its practical enforce is unwarranted.