Legal Values Past Paper Question

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Explain the relationship between law and morality [14]

Both law and morality are normative, they dictate how people should behave just in different ways. Laws are explicit and are enforced by established organisations and it is punishable if these laws aren't followed. Morals, on the other hand, are implicit and they are established within local groups whether that be society, a community, or a home. They are standard principles, values and beliefs that are enforced through social pressure but compliance with them isn't compulsory. 

Several theories have been proposed about the relationship between law and morality, all expressing alternate views. The Natural Law Theory suggests that law and morality are related, that law should be governed by and based on morals which act as a higher code. Professor Fuller wrote about the requirements a successful legal system should have in relation to Natural Law principles: Rules should be explicit (generality) and should be made known to all (promulgation).Rules should not act in retrospect (non-retroactivity) but instead, they should possess no ambiguity and not conflict with each other (consistency). The rules should be realistic thus they aren't impossible to comply with thus they won't need to be changed too frequently (constancy). Finally, administration of rules should coincide with the publics' knowledge. Alternatively, another theory devised by philosopher John Stewart Mill outlines that individuals should possess free will in choosing to behave in ways that they want to without having society's morals forced upon them. However, this liberty can only justify for actions that do not cause harm to others. 

These opposing views to the relationship between law and morality were amplified by the Wolfenden Report. This report discussed the issue of legalising homosexuality and prostitution and Professor Hart and Lord Devlin contributed their conflicting philosophies. Professor Hart offered a humanistic approach that focussed on individuality and was influenced by John Stewart Mill. Hart believes that the legal enforcement of a moral code was unnecessary and ironically, is morally unacceptable as it interferes with individual liberties. Hart believes that populism should not occur, the conventional morality of a few should no be justification for prohibiting people to behave in ways that they want to. Lord Devlin, on the other hand, offered a much more pragmatic and focused view on the majority rule, suggesting that law without morality "destroys freedom of conscience and is the paved road to tyranny." Devlin believed that "there is disintegration when no common morality is observed", suggesting that criminal law must respect and reinforce the moral norms of society to prevent the degradation of society. 

Despite these clearly opposing views, whether case law supports them is ambiguous. R v R 1991 is a perfect example of how a shift in morality amongst the public lead to a policy change. Prior to this case, **** within marriage was not illegal as it was a part of the marriage contract that a wife was essentially the property of her husband. Nevertheless, this case established a change in law that **** within marriage…


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