- Created by: Elliiphant
- Created on: 01-06-15 14:06
The law's relationship with morality is a matter of enduring controversey. It is widely accepted that there is a link between law and morality but many people question whether the law should be used to enforce moral values.
I will be discussing how the law relates to morals and why it's relationship with the law continues to be an important debate.
Meaning of Law
Law has been discribed by John Austin as ''a command issued from a sovereign power to an inferior, and enforced by coercion''.
A brach of legal rules will result in state sanctions.
It is not for the public to choose whether they comply to legal rules; complience is compulsory and the rules will apply to everyone in society.
An example is a ban on smoking in public places which has applied to everyone since legislation was created in 2007.
Meaning of Morals
Morality has been defined by Phil arris as a set of belief's, values, priniples and standards of behaviour.
Unlike legal rules, you don't have to comply with moral rules.
People have different morals and so what some consider to be morally acceptable others do not.
For example, some people think that abortion should not be allowed, such as the Roman Catholci Church who believes that each life i sacred.
Moral rules tend to be forced informally due to social pressure whereas legal rules are enforced through sanctions which reflect how an offender should be punished.
An example of a moral rule is adultery which is frowed upon by society as a whole, but is not illegal.
Overlap of Law and Morality
In any legal system there will be an overlap between legal and moral rules.
This can be described by Salmond's interlocking circles which shows how much the law and morals coincide in primary law, but also where there is a seperation between the two.
The Ten Commandments which include murder and theift reflect the opinions of society that, for example, murder is morally wrong and will result in punishments.
Oublic morality influences reform often such as in the Abortion Act 1967 which was introdcued due to the general acceptance of abortions in society.
This debate between law and morals contunies to be important. Clearly, morals do change, but so do laws and this means that today and way into the future laws will constantly be changing due to the acceptance, or perhaps the un-acceptance, of certain things in society.
Homosexuality was once referred to as a 'sin' and made an offence under the Crimina Law Amendment Act 1885 stating homosexuality as 'gross indecency'.
However, due to the changing of opinions of society people have begun to accept homosexuality which is reflected in certain acts such as The Sexual Offenes Act 1967, which legalised homosexuality between males over 21 (which has since been decreased to 16) and the Civil Partnership Act, allowing same sex couples to have the same legal entitlements as married couples.
From this change in legislation, we can see just how important the relationship between law and morals is today, because overtime our opinions have changed and the law reflects this.
Natural Law Theories
There are theories as to whether the law should be based on moral values.
Natural Law theorists argue that in order to be valid the law must coincide with natural law.
There is quite often an overlap with religion so if the bible appears to, for example, reject relations between the same gender then natural law theorists might base their morals upon this view and reflect current legislation
In Gibson a women made earrings out of foetus' and natural law theoriests were appalled, stating that this was public indecency.
However, many people who are religious agree with homosexuality and so this reflects the importance of how moals change and if the natural law theory was applied the law and society would become stuck in time.
Positivists, such as Jeremy Bentham would say that natural law theories are nonsense.
He promoted the utility principle; the greates happiness for the greatest number.
Hart was a leading positivist and believed that the law is and what the law should be are two different questions.
Positivists believe that moral wrongs should not be a crime unless they harm other people.
Embryos: Modern examples
Whilst there are examples of the law changing due to social values, the law also reflects the relationship between changing technology and morals, therefore keeping up to date with current affairs.
The creation of 3 person embryos has recently caused much debate as to whether they should be allowed to be created to avoid some genetic diseases.
The law has changed to allow the creation of these but this went aginst arguements put forward by the church and others who felt that it was morally wrong to interfere with creation of life and to 'play God'.
In the past, 'test-tube' babies was seen as being very unethical and many people opposed to it, however over time people have accepted that created babies outside the human body is safe and is now commonly used to help families who can't have children.
The 'pluralistic nature (which means that society is made of many cultures, opinions, religions and ethnicities) of the UK means that it is very hard to base the laws on moral values as people have very different opinions about moral values and their relationship with the law.
Harris once said that ''legal rules do not exist in a vacuum but are found side by side with moral codes of greater or less complexity''
For an example of how the law is complex due to morals is Euthanasia which is currently illegal in the UK. The law does't except Euthanasia as a defence to murder, however there have been several cases fighting for this and in a recent survey 80% of people were in favour of a change to the law.
One example of this is Tony Nicklinson who had 'locked in syndrome'.
He wanted to have the right to die, however the Supreme Court declined to make a change to the law because there is no consenses of opinion on Euthanasia.
Positivists/ Natural Law Theorist views on Euthana
Positivists would argue that allowing a person to die when they choose should be allowed as it does not harm others.
However, natural law theorists would oppose it as they believe that the sanctity of life should be protected in all circumstances and that to allow Euthanasia would be the thin edge of the wedge and may lead to some people's lives being viewed as less valuable than others.
In the case of Gillick a mother who had 5 daughters wanted the courts to make a declaration that her under 16's could not be given contracaption as she believed it was morally wrong.
This was rejected by the court, with Lord Scarman saying that when a child has sufficient understanding and intelligence their right will yeild to their parents right.
The Hart-Fuller debate 1958-1967 questioned the validity of legal rules that conflict with moral rules.
After WW2 Nazi's were charged with the murders that they committted during the war.
They argued that at the time their crimes were legal and accepted as morally right, but once the war was finished they were no longer legal.
Fuller suppirted this decision, but Hart disagreed believing that the law was valid despite being contrary to moral principles.
There is a close relationship between legal and moral rules.
It is clear that the law is based on morals, but whether or not this should be the case remains arguable.
Whilst we have s significant section which supports the view of Professor Hart, we must accept that moral views cause much debate in our legal system.
In the 21st century the relationship continues to be important and in the future it may well be that more laws are changed/ created due to peoples moral opinions.