Law and Morality

Introduction

Law defined - The set of rules created by the state and governed by the judiciary that aims to achieve justice in all areas that they encompass

Morality defined by Durkheim - ‘A set of social rules and norms that guide behaviour and maintain cohesion in society’

The Hart and Devlin reports 

This argument came about with the proposed legalisation of homosexuality published in the Wolfston report. Hart believed as long as what was being done was not causing anyone harm it should not be stopped by the law.

Devlin argued the law should follow the morality of the ‘ordinary man’ and any infringements on that should be illegal. He also believed the law should set the baseline and society should go further. For example the law would tell people not to kill but people would be expected to go out and help people for the benefit of society.

Assisted dying

In both Pretty v UK and Conway v MoJ the judiciary agreed that morally assisted dying would be morally beneficial to the country, but decided not to go so far as to change the law. Instead, they left it up to parliament to decide as it would be more free from emotion than those judges that had heard the suffering throughout the case. Aristotle would’ve agreed with this ruling as he believed ‘law should be reason free from passion’ and should be carried out properly to be good.

Sexual Offences Act 1967

This de-criminalised homosexuality for men over 21 to better adjust to the evolving morals of the time. Lon Fuller would agree with this idea as he argued morality is inside of us and the law should reflect the morals of the populous.

Abortion Act 1967

Thomas Aquinas believed God placed morality inside us from birth and that people naturally knew right from wrong. In Evans v UK is an example of positivism overruling natural law as it was decided the consent of both partners to keep embryos as more important than article 8 of the ECHR. This follows Aristotle’s ideas.

Conclusion

Overall, the law is more in favour of natural law as it follows human rights. However, positivism is essential too.