law and morality evaluation

intro

Morals are a set of beliefs and values. Philip Harris defines morals as principles affecting

standards of behaviour. Morals change over time and are not shared by all members of

society. Many morals are based on the dominant religion in a society, e.g. ‘Thou shall not

kill’. Laws on the other hand are a set of rules that are recognised and applied by the state.

Parmliment and morals

There is sometimes great difficulty

for parliament to pass laws that reflect the morals and beliefs of everyone in society.

Durkheim commented that in small societies it was possible for there to be a common

morality and therefore common laws. However, in modern society people have different

morals based on social status, income, ethnicity, religion etc. This is because we live in a

pluralist society. Pluralist societies contain a wide range of moral standards and values.

This makes it very difficult for the law to please everyone. Parliament may make use of

Private Members’ Bills to pass controversial laws. This way political parties do not have to

reveal their views on controversial issues. Instead, backbench MPs will sponsor the bill,

for example, in 1967 the Abortion Act legalised abortion. This was a very controversial law

at the time and still has people who oppose it today. More recently, the Assisted Dying Bill

was defeated in parliament as MPs couldn’t agree. Many people in society would be in

favour of such a change in the law, however there is still opposition.

Libertarian approach

Lord Devlin took a paternalistic approach in his cases and thought the law should set a

basic standard of morality and that society should aim for higher standards. Devlin

reacted to the Wolfenden Report which led to the legalisation of homosexuality in the

Sexual Offences Act 1967. Devlin was critical of the report and thought that there should

be a shared morality in society and that society may disintegrate if morals were not

upheld. Professor Hart disagreed. He was influenced by the libertarian approach of John

Stuart Mill. Both Hart and Mill thought that a minority in society should not be made to

conform to the will of the majority. Hart went further and said that the law should not

enforce morality as it would infringe a person’s autonomy.

Relgious view points

There have been cases where one of the parties holds a particular religious viewpoint that

the courts do not agree with. In Re A, the parents of conjoined twins opposed their separation on religious grounds; however, the court authorised their separation. In Re S, a

pregnant woman refused to have an emergency caesarean section because it went

against her beliefs; however, a judge ordered the procedure to go ahead against her will.

This was later held to have infringed her right to autonomy and self-determination. These

decisions are controversial as the judge is making a moral decision. Judges are criticised

as being old and out-of-touch because they are from a narrow social background. It is

argued that a judge’s morals may be different from those of the public. Many critics of the

decision in R v Brown made this point when the House of Lords refused by a 3:2 majority

to allow a group of homosexual men to raise the defence of consent when they partook in

sadomasochistic activities. The majority of the court did not want to be seen to endorse

cruelty and degradation, however the dissenting judgments point out the private and

consensual nature of the acts.

positivists

Natural Law theorists consider law and morality to be intimately connected. St Thomas

Aquinas believed that law and morals came from God. Since the decline of religion in

many societies, Lon Fuller argued that a valid legal system had an ‘inner morality’: it would

be in existence, published, understandable and consistent. Positivists such as Bentham

criticised natural law theories for confusing legal issues and moral issues. The

disagreement between the natural law theorists and positivists was seen in the Hart-Fuller

debate. Laws made by the German government during the Second World War were still

valid laws according to Hart. Even though they were immoral, they were legally

enforceable. Fuller said that these laws went against natural law and that, because they

were immoral, they were never actually valid. The German courts agreed with Fuller when

they prosecuted informants as war criminals even though what they had done was legal

during the war.

conclusion

In conclusion, the law does try to enforce morality in many cases but as morals are

constantly changing with each generation, sometimes the law fails to keep up. There

cannot be a complete separation between law and morals as many are intertwined, and

laws do not exist in a vacuum. The Human Rights Act 1998 is an example of the law

enforcing the rights and freedoms of individuals. What causes conflict is when the law

tries to force its idea of morality on a pluralist society.