- Created by: getrevising22
- Created on: 17-06-18 11:27
Law is a set of rules and regulations used to govern society and guide our conduct.
Sir John Hammond describes law as a body of principles recognised and applied by the state in the administration of justice.
Compliance with legal rules is compulsory and is imposed and governs all members of society who must obey it
Breaches of legal rules will result in state sanctions and procedures;
law can be implemented immediately;
statutes are given a commencement date.
Precedents can be created in court rulings and are binding for future cases in lower courts.
Morality can be many things. Unlike law which is recognised by all society, morality can
be individual to a person. Whereas laws are enforceable, morality may carry social
condemnation but it is the choice of individuals whether they want to follow it or not.
Britain has a very divers society who of their own accord follow different moral beliefs,
but who are all required to follow the same legal rules.
There are many differences between law and morality that are already becoming
apparent. Laws are enforced formally, created externally and largely concern external
human conduct. Morality has no sources, no officials and no agencies capable of creating
moral rules and is largely concerned with the inner motives of individuals. Morality can
alter to a humans own human dignity and conscience, where law is imposed on all
members of society alike. Disputes over legal rules can be resolved through looking at
statutes and precedents, which are to be accepted, and cannot be disputed. Morality is
open to dispute because this is not available. The progressive development of morals over
thousands of years means that the views are much the same today. This makes solving
disputes near impossible. This shows how there are great differences between law and
morals. But this is not to mean they do not have a close relationship. Many of the legal
rules that we follow are both moral and legal rules. Murder, ****, theft and child abuse
are violations of morality, prohibited by law. This relationship was described by Sir John
Salmond as two intersecting circles. The area in the intersection representing the
common ground between law and morality and the area outside the intersection
representing areas separate to each. The common ground is known as primary law and
includes for example murder and theft. Primary law is what encourages and excites us
to think that law and morality are one and the same thing, and shows how close their
relationship can be. These longstanding legal rules have moral connections that trace
back to the ten commandments in the Bible. This is a clear example of how close the
relationship between law and morality evidently can be.
The UK has a very diverse multi cultural society, with individuals following different religious and political codes, which leads to a great variety in the moral values of society. This diversity can impact on the relationship between law and morality, and mean in areas the coincidence can only be partial. For example, Abortion raises a great variety of moral values. Some view abortion as immoral, and will never view it as acceptable. Others feel that it is moral, but only for medical needs. Even those that agree that it can be moral, disagree on the stage at which the procedure should be allowed. This shows the relationship between law and morality, and also affects the ability of law in upholding moral values. Although society have very strong moral values, that should be upheld by the law. In this example it is near impossible to achieve public consensus on this issue, so it would therefore be impossible for the law to uphold moral values. Another example that highlights this difficulty is the case of Gillick v West Norfolk and Wisbech Area Health Authority, concerning the prescription of contraception to girl sunder the age of 16. If the courts were to rule that parental consent was required then there is a risk of increasing numbers of teenage pregnancies. On the other hand if the courts ruled that parental consent was not necessary then there is a possibility of encouraging underage sex. The law should and ought to uphold for example the moral view that underage sex should not be encouraged, but with this risks the increasing numbers of teenage pregnancies
The fairly recent case of R v Brown and others concerning sadomasochistic acts, which were consented to by adults in private, raises the argument as to whether the law ought to uphold moral values. The sadomasochistic acts were held to be unacceptable by the public, so therefore should that mean that the law upholds this moral values and makes it illegal? This was a large part of the case, and the decision raised moral and legal themes. Legal themes concerned the validity of consent and the lawfulness of acts in private or lack of it. The moral themes concerned were whether an individual should be forced to conform to the will of the majority, infringing on the rights of the individual for the benefit of society.. The question was raised as to whether the law should act as a greater good i.e. an enforcer of morality for society. This raised the Hart and Devlin Debate, which was concerned largely with the extent to which the law should enforce moral values.
The Wolfenden Committee investigated legalising homosexuality and prostitution and this raised the question of how far law should go in upholding morality. Hart and Mill believed that the law should not be used to enforce morality, and that the individuals should not be made to conform to the will of the majority. Hart believed that it was undesirable, unnecessary and morally unacceptable for the law to impose morality because it infringes on the rights of individuals. Devlin however disagreed believing that society shared a common morality and that the law should intervene to punish acts that offend this shared morality. He even stated that a failure to intervene could result in the disintegration of society. In R v Brown and others the Lords sided with Devlin, holding that the sadomasochistic acts were morally unacceptable according to society and that therefore the law should intervene to punish those acts as illegal. Whether the law ought to uphold moral values, is a continuing debate, but it is worrying that the Lords sided with Devlin, and that the rights of individuals were infringed upon in order to enforce morality
A number of controversial laws have recently been passed in France, thought to have come from the country’s attachment to secularism. Bans were introduced in both 2004 and 2011 ‘Burqa Ban’ infringing upon the rights of the individuals to wear what he or she wants. A survey revealed that in 2011, 80% of the French population were in favour of banning political and religious affiliations within private schools and nurseries. So here as in Brown, moral views held by society have been upheld, but at the expense of the individuals rights within society. The law has however altered with changing moral values in areas such as homosexuality. The more accommodating views of homosexuality in the 60’s led to the introduction of the Sexual Offences act in 1967, which legalised homosexuality between consenting males in private over the age of 21. This was raised to 18 in 1994, and 16 in 2000 in line with changing moral opinions. The Civil Partnership Act 2004 and the current bill of parliament; Marriage (same sex couples) Bill, all demonstrate how the law is now changing with morality and upholding the more accommodating moral views successfully.
Natural law theorists base their entire theory of law on morality, so for them upholding morality is clearly essential. Aristotle based his theory on the moral standards which govern human behaviour, he thought derived from the nature of human beings and the nature of the mind. This later became known a s the Divine Law and Sir Thomas Aquinas went on to say that if this Divine Law came into conflict with man made laws then the Divine Law or law of God should take precedence. Natural Law theorists strongly believe that the law should not only uphold morality, but that morality is the source from which law derives. In opposition to this theory are positivists, who believe that natural law is ‘nonsense upon stilts’. They have no consideration or do not look at all for law to uphold moral values, they only care about the man made ways in which law is created. Sir Jeremy Bentham and John Austin are positivists, who define law as ‘a body of principles, enforced by the sovereign, whom the bulk of society are in the habit of obeying; enforced by society. The contrast is that natural law theorists base everything on laws moral values, whereas positivists are not concerned by this at all. The danger in law upholding morality is that it can infringe on the rights of individuals who do not conform to the ‘shared morality‘ of society, as was seen in the decision of R v Brown and in the passing of the French laws. Law is successful in adapting and changing with shifts in moral opinion as in the recent Civil Partnership act (2004). But the progress here has been protecting the rights of individuals. Overall law and morality clearly have a very close relationship, as seen in Primary Law, although there are areas where it is difficult to diverge the two as in abortion. It is also necessary for law to uphold moral values, it just needs to be done in a way that ensures the minority do not suffer.
Theorists have argued about law reflecting morality. Natural law theorists believe that law should reflect natural law. Therefore contraception is immoral as it interferes with nature. Whereas pluralists believe that if law has gone through the proper motions then it is morally right. Hart and Devlin argued about imposing morals in law. Hart believed it was up to society to establish its own morals whereas Devlin said that people should be protected from moral corruption by the state. There is also an argument over if law did not link with morals judges would be the ones setting morals in society. Judges are unelected and predominately white, middle aged, middle class men therefore not very representative. However they have the experience and expertise and so are best placed to reflect morals.
Finally it is important to law keep up to date with morals. R v R showed the law being out of date because it took until 1991 to have marital **** made illegal. Concerning gay marriage Cameron believes that society has changed and attitudes are different so the law should reflect this change. With measles many argue that people should be forced to vaccinate their children so to protect them and other children from a potentially life threatening illness. However some argue that it infringes people’s civil rights and civil liberties. Therefore law ought to reflect morals.
In conclusion it is difficult to determine if law ought to reflect morals. However with the constant change in attitudes it seems likely that to achieve fairness law ought to reflect morals.