This shot essay aimed at an A level audience seeks to discuss the relationship that exists between laws and moralities drawing on the UK for relevant examples.
Law and Morality
Laws are a collection of rules imposed by authority which carry with it some form of punishment. Morals are being concerned with principles of right and wrong or conforming to standards of behaviour and character based on those principles, these are not enforced by an authority unlike laws but can have other ramifications. Law and Morality also differ in the way in which they are formed. Morality develops overtime and cannot be deliberately changed while laws can be introduced instantaneously and with intention.
There is much debate about whether law should reflect morality, this is known as the Hart Devlin debate. After the Wolfenden committees report in 1957 which reported that homosexuality and prostitution should be legalised professor hart approved and claimed that law and morality should be separate, feeling that morality is a private subject and the state should not intervene. He further argued that it was wrong to punish people who may have done no harm to others. Lord Devlin on the other hand believed that society needs some form of morals and that the law should reflect this even if public opinion is changing. He further argued that Judges have a right to preserve some morality which was exercised in Shaw v DPP 1962 when the defendant was convicted of corrupting the public morals after publishing a directory of prostitutes, the lords effectively invented the crime to cover the situation. This line was also taken in the more recent case of Brown 1993 where the lords imposed standards of acceptable behaviour despite the consent of adults and only minor injuries occurring. This judgement however was passed with two dissenting lords. Four years later the lords took the Hart view in the case of Wilson saying that the consent was between a man and his wife and the law should not intervene. Durkheim would appear to take the Hart side of the debate as he feels that morals are too diverse and it is impossible to find a set that represents a modern society.
Another linked debate is the natural law and positivism debate about whether law and morality should reflect each other exactly. An extreme supporter of natural law would argue that the two should coincide and that laws come from a divine source, immoral laws should be ignored. Positivists argue that if a law has passed following the correct procedure then it must be obeyed even if they are not liked and conflict with morality.
Laws and morals inevitably and often overlap and this is reflected in both criminal, tort and contract law. Acts such as murder, theft and rape are considered wrong both legally and morally. The defences for murder are also rooted in morality, insanity is allowed as it is consider wrong to convict somebody who does not know what they are doing while the rules on voluntary intoxication come from society’s views on acts done while under the influence.
Sometimes laws and morals find themselves at polar opposites, this was evident in 1990 with the poll tax a massively unfair and immoral tax system which had widespread opposition. Law and Morality not being as one is also evident with euthanasia laws on which many people feel that those who assist a suicide of a terminally ill person should not be prosecuted, the house of lords decided in 2001 in the case of pretty that such an act would be criminal.
In contract law use of morals is also evident in the case of Parkinson v The college of ambulance the contract was considered void because its purpose was to corrupt public life. In tort the moral obligation of doctors to treat their patients comes from the Hippocratic oath although doctors have been able to justify withdrawing feeding to patients as in the case of bland.