The relationship
between law and morality is a complex and often a philosophical one, as is the
answer to the questions, what is law, and what is morality?
As we live within a
pluralistic society with many different cultures, sometimes with conflicting ideas
over punishment for issues such as theft; abortion and adultery, and whether
indeed some things are even considered a crime or immoral, there is no shared
morality by the whole of society and the true origins of British morality seem
to be impossible to definitively quantify.
Natural law theory proposed
by Aristotle advocates that law and morality are entwined and that they should
reflect one another. Natural law theorists suggest that if a law is immoral
then it is not a law at all, and citizens are under no obligation to adhere to
it. St Thomas Aquinas described these laws which have no moral grounding as a
perversion of law and that all laws should reflect the god given morality in
the name of the greater good of society. In direct opposition to this theory,
legal positivists emphasize the distinction between law and morality as two
separate entities, believing that laws should be adhered to, regardless of
individuals’ moral opinions. Dictatorial as this sounds, regimes such as the
Nazi party and Soviet Russia could be interpreted by legal positivists as being
justified as they were legally binding, thus justified. Aristotle believed that
“the law is reason free from passion,” abdicating this notion would be the
legal realist Oliver Wendell Holmes. He wrote in The Common Law (1923) that if the legal system was merely a
combination of rules to be obeyed, there is no real need for solicitors and
baristas conducting adversarial hearings as presiding judges hold discretionary
powers to decide the outcome of the case based on these rules. If this was the
case; a judge’s mood, political ideology or social class may determine the
outcome of the case, highlighting the need for a trial by jury (Op Cit:
sixthformlaw.info).
Marxist theory of law
focuses on the power groups that control the legislative processes, as well as
the power of controlling which acts are labelled as criminal or deviant.
Laureen Shnider recorded how capitalist states are often reluctant to pass laws
that will damage or restrict profits and deter possible investments, even at a
cost to the rest of society. Marxists also argue that white-collar crimes such
as fractional reserve banking, financial terrorism, fraud and tax evasion are often ignored and
lower class crimes like benefit fraud, burglary and theft are given prominence
and heavily punished to make an example of, and that we are encouraged to
conform to this model of crony capitalisms inherent inadequacies and
fundamental flaws, consumerism and the legitimisation of slave labour by the
institutions we are surrounded by; school, media, the law, the police, the
judicial system and religion (Haralambos).
For practical purposes,
it is generally accepted that our present legal system began in the reign of
Henry II (1154-1189) and the doctrine of binding precedent, or stare decisis is at the heart of the
English common law system today. Decisions within the hierarchical structures
of the English Court system must be adhered to, if the precedent was set by a
court of equal or higher status, then it is common practice for the presiding
judge to follow the rule established, however if the precedent is set by a
lower court, the new case does not have to follow the precedent, although it
will be considered and not overruled without due consideration. (Op Cit:
Keenan, D 2001 p5) (Slapper, G and Kelly, D 2007 p 1, 41, 42).
It is entirely
plausible and highly likely that laws have shaped peoples morals over time. As
morals are; purely subjective based on an individual’s socioeconomic
environment and upbringing and are not enforced by institutional means, whereas
law has the rigidity aforementioned, often differing from country to country,
their origins are hard to pin down. Morality is shaped by a number of factors
including the law itself; as well as being passed from family and friends, and
from what appear to be diluted versions of Christianity’s Ten Commandments.
Breaking the ‘moral code’ usually only results in an adverse reaction from
other members of society such as excommunication, but is not punishable by law;
it is safe to assume that these Ten Commandments have shaped the law
themselves. Evidence of law shaping moral behaviour could be the introduction
of the smoking ban. Prior to the ban commencing in July 2007, it was perfectly
normal to smoke in designated areas within restaurants, on public transport, in
night clubs, pubs and in the work place, whereas today it would be highly
frowned upon to deviate from this particular law and would result in a fine if
apprehended (Op Cit: politics.co.uk).
In theory, law can be
defined as a set of official rules and regulations which are a mechanism of
social control designed to maintain social order and promote prosperity,
enforced through institutional means. Law has a rigid structure of rules that
can easily be traced back through history and can be found in constitutions
such as the Magna Carta, government legislation and past judicial opinions and
decisions, or common law. If these
rules are broken, the state usually enforces some form of punishment or a
remedy for this behaviour. Society’s opinion on whether a law or specific
punishment is morally right or wrong is irrelevant, laws exist and must be
adhered to (according to legal positivism);
however, a vast majority of the public must agree with them in order for them
to be effective otherwise upheaval may ensue, and pressure from public groups
or activists can promote changes in legislation or the way in which they are
interpreted. This was the case in Quintavalle v HFEA [2005], in which the Human
Fertilisation and Embryology Authority set out strict guidelines for future
cases to be dealt with on a case-by-case basis, to allow for ‘saviour siblings’
to be created using gender selection, but not allow for genetic selection of
gender for social reasons. The House of Lords recognised that the case raised ‘profound
ethical questions’ as the families involved use systematic abortion to select
the required gender and tissue type, yet it ruled that the Human Embryology and
Fertilisation Act 1990 may be interpreted to allow for this type of selection (Op
Cit: prochoiceforum.org.uk) (Op Cit: Slapper, G and Kelly, D, 2007 p1).
As moral views change
over time, laws need to be updated to accommodate these changes within society.
Further updates to the Human Fertilisation and Embryology Act were needed as
same sex couples acquired more notoriety and demanded equal rights. The 2008
Human Fertilisation and Embryology Act included an outright ban on gender
selection for social reasons alone, but the main feature was the addition of
same sex couples having the same rights as opposite sex couples, “allowing for
the recognition of both partners in a same-sex relationship as legal parents of
children conceived through the use of donated sperm, eggs or embryos” (Op Cit:
hfea.gov.uk).
Further evidence to
suggest that laws could shape society’s moral attitude can be seen in the way
we now view homosexuals. Prior to the 1967 Sexual Offences Act, it was a crime
to be a homosexual. This law and moral opinion most likely stemmed from a
passage in the bible, Leviticus 18:22 which read that we should not lie with
mankind as we do with womankind as it is an abomination. Today however,
politicians are openly debating and in some instances supporting whether or not
same sex couples should be granted the same rights as opposite sex couples when
getting married, although the church is in opposition, it is already legal to
have a civil partnership which grants gay couples the same rights in marriage
as that of heterosexual couples (Op Cit lawteacher.net) (Op Cit: bbc.co.uk) (Op
Cit: bibleapps.com)
The 1967 Sexual
Offences Act came about from the Wolfenden Committee Report in 1957 which
recommended that homosexual acts between consenting adults in private should be
made legal on the premise of the harm principle proposed by John Stuart Mill.
The report, controversial at the time sparked a debate between professor Hart
and Lord Devlin; Devlin suggested a fairly authoritarian approach that
suggested society depends upon a shared common consensus and also believed this
should be enforced regardless of whether acts were committed in the privacy of
peoples own homes, even further suggesting that breaches of the majority shared
morality should be regarded as treason and could lead to the disintegration of
society, a view shared by sociologist Emile Durkheim. Given the pluralistic
nature of society today, it is hard to find evidence to support Lord Devlins’
assumptions, and it could even be argued that with the integration and
acceptance of more minorities, we are more mature and less prejudice as a
society, the reverse of Lord Devlins’ thesis. In opposition to Lord Devlins’
argument was professor Hart. Although Hart accepted the need for criminal law
prohibiting immoral acts in public which cause nuisance or outrage, he argued
that “to punish people for causing distress to others would be tantamount to
punishing them simply because others object to what they do.” Hart also challenged
Lord Devlins’ coercive methodology of enforcing moral standards, he believed
that there is “little evidence to support the idea that morality is best taught
by fear of punishment. Much morality is certainly taught and sustained without
it, and where morality is taught with it, there is the standing danger that
fear of punishment may remain the sole motive for conformity.” Another point
Lord Devlins argument falls down on, is that enforcing the will of the majority’s
moral opinion is nothing but a harrying, totalitarian stance (Op Cit: Currer, J
and Darwent, P 2013).
There have been
instances when morals have been influential in the formation of new laws, Gillick
v West Norfolk and Weisbech Area Health Authority [1986] saw the introduction
of children having greater control of their medical treatment after a mother of
a minor challenged a doctor’s decision for prescribing contraceptives, which
failed upon appeal to the House of Lords. This case president gave rise to the
term ‘Gillick competent’ and is a set of guidelines laid out by Lord Fraser in
his judgement of the Gillick case in the House of Lords (1985), which apply
specifically to contraceptive advice. It is now taken as a given that sexual
health advice and contraception is readily available to teenagers under the age
of consent, without expressed permission of a parent provided that they fulfil
the criteria and exhibit the maturity required to undertake such a decision as
well as the implications involved, whereas before this was seen by some as
immoral as minors were expected to wait until the legal age of consent to have
sex. The implications of this case may be being felt today as teenage pregnancy
and underage sex seems to be an ever more prevalent issue within our society,
possibly further evidence to suggest laws shaping morals and highlighting a
definitive and somewhat symbiotic relationship between the two (Op Cit:
nspcc.org.uk).
Although
it may seem obvious that the law does exert some
shared moral views on issues such as murder, assault, rape, criminal damage and
theft, professor Hart acknowledged this as ‘the minimal content of natural
law,’ the minimal amount of interference the government should impose on
individuals when enforcing morality. The amount of interference the law should
impose on morality, especially acts which deviate from the norm in the privacy
of our own homes is still an issue for debate today and the Hart/Devil debate
will most likely have continued relevance in shaping the direction of English
law for future generations to come, although with the addition of the European
Convention on Human Rights in English law by the Human Rights Act 1998,
particularly section 8, which emphasises the right to respect for private life
it seems pretty clear cut that barring the harm principle is not breeched, we
are free to choose our sexuality and religious beliefs, living in a ‘fair
society’ where we can freely express ourselves unrestricted by the tyranny of
oppressive governmental regimes, or so we are lead to believe. Furthermore,
taking in to account the somewhat valid points made by Marxist theologise, laws
being passed to encourage large businesses to pursue massive profits in the
name of personal greed, as well as the deregulation of the banking system could
have had a direct impact on societies morality within all social strata as
aforementioned, laws could have had a direct impact on individuals behaviour,
resulting in selfish behaviour in the pursuit of personal greed.
Reference List Word count: 2280
Slapper,
G and Kelly, D (2007) English Law 2nd
edition Routledge, London.
Keenan,
D (2001) Smith and Keenan’s English Law
13th edition Ashford colour press, Gosport.
Currer,
J and Darwent, P (2013) AQA A2 Unit 4:
Concepts of law Hodder and Stoughton, London.
Haralambos, M and Holborn, M (1995) Sociology; Themes and Perspectives 4th edition Harper Collins,
London.
http://www.politics.co.uk/reference/smoking-ban
http://www.nspcc.org.uk/inform/research/questions/gillick_wda61289.html
http://www.hfea.gov.uk/134.html
Biblography
Anti-smoking
and Health (ash) Key dates in the history
of anti-tobacco campaigning
http://www.ash.org.uk/files/documents/ASH_741.pdf Date
Accessed 09.04.13
What
is law: http://sixthformlaw.info/01_modules/other_material/law_and_morality/0_what_is_law.htm, Date accessed:
13.3.13
Hadfield,
G and Weingast, B (2013):
Journal of Law and Courts: Law without
the State, Legal Attributes and the Coordination of Decentralized Collective
Punishment: http://www.jstor.org/stable/10.1086/668604: The
University of Chicago Press
Case law
Quintavalle
(on behalf of Comment on Reproductive Ethics) v HFEA [2005] UKHL 28, Norfolk
and Wisbech Area Health Authority [1985] 3 All ER 402 (HL).
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