Law and Morality

Definitions

Morality

• ‘Morality is a code of beliefs, values, principles and standards of behaviour’ - Professor Harris 

• lay down a standard of normative behaviour 

• concerned with what people consider to be right and wrong

• may be personal or individual and there is often disagreement between people about many

Law

• Law are rules which regulate human conduct and resolve conflict

• "The law has multiple roles: to regulate, facilitate and resolve" Prof. Brian Simpson

• The law is all pervasive

• "Law is the cement of societv and an essential medium of change’ - Professor Glanville Williams 

• Pluralism (Durkheim)

• Due to pluralistic nature of society, it is impossible to find values common to all

• No common morality

• Simon Lee: Within any society there is simply competing moralities and nobody is morally neutral

Influences

Law influencing morality

• Health Act 2006

• Families and Health Act 2016

• Bylaws - what is right and wrong within a partiular community

• Tobacco and Vapes Bill - guiding moral behaviour

• Data Protection Act

Morality Influencing Law

• Abortion Act 1967 

• Equality Act 2010

• Sexual Offences Act 1967

Similarities

• Concerned with regulating behaviour and conduct standardising behaviour (what is normative)

• Coincide and overlap (e.g Murder)

• Law has moral content and often reflects dominant moral viewpoint

Differences

• fundamental difference comes from origin, source and consequence

• Laws have universal application - morals more personal

• R v Ignlis - "did it with love in my heart" - mercy killing of vegetative state son

• Morals concerned with motive, where the law is unconcerned

• No Good Samaritan Law - but morally upheld?

Law Comes From, Enforced by:

Law comes from:

• Legislation (Parliament)

• Case law - precedent

• ECHR

• Delegated Legislation - public bodies

law is enforced by:

• Police

• courts/ judges

• CPS

• Probation Service

• Prison service

• Citizens

Morals Come From, Enforced by:

Morals come from:

• Religion

• Culture

• Family/Upbringing

• Peers

• Education

• Media influences

No formal consequences for breaking a moral code

Theories

J.S Mill

• "Harm Principle" 

• "only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others’

• Brown - does not follow this principle - no harm caused but stated to "breed and glorify cruelty" 

• paved way for modern notion of divorcing law from morality

• influenced views of Wolfenden Committee

• utilitarian

• law only intervenes in lives if justified on grounds of promoting greater good for greatest number 

• Minorities not the majority, thus forced to live under rules of another - not considered

• Smith v Hughes: "act to clean up the streets" - what about livelihoods and safety of women, and right to work?

• According to this libertarian view, a person's sexuality is a private matter and not law's business

• Brown: Wilson

  • Article 8: Right to Private Life - to live life with autonomy and dignity

Wolfenden Committee

• set up to examine law on Prostitution and Homosexuality

• libertarian viewpoint

• 1957 report led to new laws on prostitution (1959) and homosexuality (1967)

• Recommended homosexuality be decriminalised

• led to Sexual Offences Act 1967, which decriminalised homosexuality

Hart/Devlin - Lord Devlin

• critic of Mil and approach of Wolfenden Committee

• key function of law was to enforce dominant morality of society

• Disregards individual morality - law only reflects dominant class

• Majority view does not make it correct view

• Society has right to protect itself, and consequence of not doing so would be societal disintegration

• popular morality should be allowed to influence lawmaking, and that even private acts should be subject to legal sanction if held to be morally unacceptable by the "reasonable man" 

  • Devin's "reasonable man" was one who held commonly accepted views, not one derived from reason

• Would be the dominant voice of older, white, men - society unable to progress.

Hart/ Devlin - Professor Hart

'Law. Liberty, and Morality’

• held an opposing view (derived from Mill) that law should not interfere with private morals

• would undermine and violate individual freedoms, especially where no harm was caused

• The Abortion Act 1967

• Sexual Offences Act 1967

Using the law to enforce moral standards was:

• Unnecessary - many moral standpoints without disintegrating

• Undesirable - freeze morality

• Unacceptable - infringes on the freedom of the individual

• Punishing offenders harms them when they have done no harm to others (Brown)

• free choice is a moral principle and should not be interfered with

• Exercising free choice - power to experiment and learn and experience

  • Suppression of desires/ sexual relationships affects the development of an individual's emotional life, happiness and personality

Hart/ Fuller - Fuller

Natural Law

• There is a natural order imposed by God which is a higher standard than the law should follow and be measured by.

• view that law and morality are inextricably linked, and that law doesn't comply with morals is invalid

Hart / Fuller - Hart

Positivism

• Law and morality not the same

• As long as law goes through correct processes it is valid

• Law is law in the sense it can be judged on its own terms

• doesn't matter if law is moral or immoral provided it is made properly