Law and Morality

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  • Law and Morality
    • Definitions
      • Law: 'a body of rules, fixed and enforced, issued by a sovereign political power to an inferior and enforced by coercion.' (John Austin)
      • Morality: 'a set of beliefs, values, principles and standards of behaviour.' (Phil Harris)
        • Morality: Derives from the Latin 'mos', meaning custom determined by man's will, rather than law.
    • Similarities
      • Both concerned with setting standards as to how one should live in order to govern the behaviour of individuals in society, the aim being to create peace and mutual understanding
        • i.e.: the law requires drivers to drive on the left-hand side of the road. It's also customary to give way to emergency vehicles. Both are concerned with the behaviour of drivers with the aim of keeping people safe. The only difference is one is a law and the other is a moral belief.
      • Moral rules and the law often coincide with one another.
        • i.e.: Laws coincide with what is written in the Ten Commandments in the Bible. 'Thou shalt not kill' is reflected in the common law on murder. 'Thou shalt not steal' finds itself legislated in the Theft Act 1968. 'Thou shalt not give false witness' is evident in the Perjury Act 1911.
          • Media: KYTV's Mike Flex talks to author and interior decorator 'Honest' Ron Biggins about his adaptation of the Bible, including his updated version of the Ten Commandments, in KYTV's 'God Alone Knows' programme...
      • Law and morality often have a direct influence on one another. The law changes to reflect the constantly evolving moral climate, and what we find to be morally acceptable may be contingent on what is considered illegal.
        • i.e.: changing attitudes towards abortion and growing concerns over the numbers of deaths caused by back-alley abortions paved the way for the introduction of the Abortion Act 1967, introduced as a private members' bill by David Steel MP.
        • i.e.: marijuana, the possession or consumption of, is widely considered to be a morally condemnable substance because it is an illegal drug. This is in spite of several studies which show that marijuana is less harmful than alcohol (which is legal - and widely available).
    • Differences
      • Law can be enforced; morality is not easily enforced.
        • Law: compliance is compulsory. Laws can be enforced by the police and courts, and those found in violation of a law can find themselves facing prosecution.
          • i.e.: grievous bodily harm with intent is legislated in section 18 of the Offence Against the Person Act 1861. If you're found guilty of GBH w/ intent, you could face a life sentence in prison.
        • Morality: it is not easy to enforce moral belief. Sanctions can be brought upon those within a social club who fail to comply to the organisation's moral code. Those who fail to follow the prevalent moral beliefs of wider society can face ridicule and ostracism. Because morality is subjective, it is difficult to enforce.
          • i.e.: racism is strongly condemned in modern society. Individuals who have been found to have been involved in the white nationalists rally in Charlottesville have been dismissed from their employment and disowned by their families.
      • Law is certain; morality isn't.
        • Law: There is certainty as to the content of laws. Each law is written down, detailing what an offence requires. Law is objective - it applies in all circumstances.
          • i.e.: Section 47 of the Offences Against the Person Act 1861 states that actual bodily harm requires assault (or battery) occasioning actual bodily harm. Case law clarifies what is meant by 'actual bodily harm' (i.e.: Chan-Fook).
        • Morality: Morality is subjective - there is no certainty. It is relative to the individual and the society. Morals are typically acquired through repeat exposure, with different countries, time periods and cultures having different codes of ethics. Morals can be contingent on the scenario (what's morally acceptable in one place is not in another).
          • i.e.: In 1895, prolific playwright Oscar Wilde was imprisoned for gross indecency for his relationship with Lord Alfred Douglas. At this time, homosexuality was a criminal offence, based on the moral belief that a relationship can only be between one man and one woman. In 2017, Wilde was posthumously pardoned.
            • Literature: David Hare's 'The Judas Kiss' documents, in two acts, Wilde's relationship with Lord Alfred Douglas (his boyfriend) and Robert Ross (his best friend) immediately prior to his arrest for gross indecency, and after his exile.
      • Law applies to all people; the application of morality upon society varies.
        • Law: applies largely to everyone across the country, including celebrities, politicians and the Prime Minister. Foreign diplomats are extended a measure of diplomatic immunity for certain offences, like refusing to pay the congestion change in London, but this is a minor exception to the general rule. The law applies to all, regardless of whether they agree with them or not.
        • Morality: ranges in application. There are some moral beliefs which enjoy almost universal adoption (i.e.: it is wrong to swear in front of small children) while other beliefs accept only marginal acceptance (i.e.: veganism). Other issues polarise public opinion (i.e.: assisted suicide) to an extent where it is difficult to determine the prevailing public opinion.
          • Media: The broadcast of the 2001 special of 'Brass Eye' divided the press and viewing public. The episode was heavily condemned by those who held a strong moral view that it trivialised a subject which should not be the subject of satire. The ITC ruled that the programme itself was not in breach of its code, but Channel 4's failure to sufficiently warn the audience of the sensitive subject matter was in breach.
    • Should the law influence morality?
      • Legal Positivism: law is a legal rule which, if made in the manner recognised by the legislative power of the state is valid - irrespective of the morality of its content.
        • If the law followed the prevailing moral opinion, society would stagnate. Law must challenge beliefs (i.e.: Race Relations Act 1965).
        • Whose morality is it anyway? How do we decide while moral opinion we should enforce?
      • Hart-Devlin Debate based upon the publication of the Wolfenden Report 1957, concerning the legalisation of prostitution and homosexuality.
        • Legal positivist: Certain aspects of private morality which are not the law's business. The law has no place interfering with an individual's private moral conduct, provided it does not threaten the welfare of others (J.S. Mill's Harm principle).
        • Natural Law: "Without shared ideas on politics, morals and ethics, no society can exist." In other words, society is part governed by morality. The integrity of society is founded upon a mutual moral foundation. Even private morality can threaten the order of society and must be warned against.
        • Literature: E.M. Forster's classic same-sex romance novel Maurice was written in 1914, prior to the legalisation of homosexuality in Britain. It was published posthumously in 1971. Forster was adamant for his novel to have a happy ending, but feared the controversy this decision would spark, were it to ever be released.
      • Natural Law: the validity of man-made laws is dependent on their compatibility with a higher moral authority. Laws which fail to comply with this authority are to be considered invalid.
        • Laws based upon morals are underpinned and therefore strengthened. Where laws are based upon morals, they are more likely to be followed for they are highly held.
        • Legal positivism can justify regimes which we would find morally reprehensible, such as Nazi Germany.


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