LAW04 Law and Morals The Concepts of Law
What is a rule? 'Rules' exist in many contexts. Not just legal rules or moral rules but many different forms of rules in many different situations. The academic writers Twinings and Miers defined a rule as a 'general norm mandating or guiding conduct'. So, a rule simply determines the way we behave... whether that is because we voluntary follow them (morals) or whether it is because we are 'forced' to follow them (laws).
Many rules are neither morally binding or legally enforceable and yet are followed anyway. However, the academic writer Hart believed that the defining characteristic of a rule is enforceability.
Rules are generally obeyed for one of three reasons: 1) Rules carry with them a sense of moral obligation. This can be seen in relation to many crimes. Most crimes are seen as morally unacceptable behaviour and also reflect many religious moral codes... for example, The Ten Commandments.
So, should the law be the ultimate guardians of our morals? In the case of Shaw v DPP (1962) the judges believed that it was their duty to act against immoral behaviour. This then seems to suggest that there should be a very close relationship between the law and morals.
2) The rule is followed because it is relevant and reasonable. Parliamentary law (Acts of Parliament) is supreme but even this will eventually be abandoned if it is seen as irrelevant or unfair The introduction and subsequent abandonment of the poll tax in the Local Government Finance Act 1988 is a prime example of this. The demonstrations and eventual riot against the poll tax highlighted the unreasonableness of the law. The idea that the law must be 'reasonable' is surely a moral idea... again, suggesting a close relationship between the law and morality.
3) Rules are followed because a penalty may be imposed. This is why people follow rules and laws that they do not necessarily agree with.
The basic nature of morals. The moral values of society or a community tend to lay down a framework for how people should behave. But concepts of morality differ from culture to culture despite all cultures generally agreeing on and outlawing extreme behaviour such as murder and rape. We all share a moral code that will differ from person to person depending on what we think is acceptable or unacceptable behaviour.
The Morality Game. Do you think it is moral to do the following? 1) Is it morally acceptable to murder? 2) Is it morally acceptable to steal? 3) Is it morally acceptable for same sex couples to marry? 4) Is it morally acceptable to have an abortion? 5) Is it morally acceptable to take illegal drugs? 6) Is euthanasia morally acceptable?
So, morality will differ from individual to individual. What affect will that have on the law of a country? The law of a country will generally reflect the morality of the majority of the population...... but the law is now less likely to reflect a common religious moral code.
This move away from a religious moral code can be seen when considering adultery. It is against the traditional religious moral code of Christianity to commit adultery and yet it is not illegal in England and Wales. The law shows its disapproval of adultery by allowing it as a reason for divorce. The moral opinion that adultery is wrong is shared by the community and yet it is not against the law. Is this starting to suggest that law and morality are separate concepts and should not influence one another?
Since the 1960s England and Wales has seen a move away from traditional religious beliefs being reflected in the law. Both abortion and homosexuality were legalised in 1967 for example. However, the law is quick to recognise that just because certain moral viewpoints may not be reflected in the law this does not make the moral belief wrong.
Gillick v West Norfolk and Wisbech AHA (1986) Mrs Gillick was a staunch Roman Catholic who was against her local health authority giving free contraceptive advice to girls under 16. the HL found in favour of the health authority (on a majority of 3:2). The HL stated that this did not make Gillick's moral belief wrong, they simply had to choose which was the most appropriate moral stance to approve of.
Another religious moral belief is that human life is sacred and under English law euthanasia is still unacceptable... although there does appear to be evidence of a shift in moral attitudes towards euthanasia. In the cases of Arthur (1981) and Cox (1992) doctors did show a moral acceptance of the need for euthanasia in cases where terminally ill patients are suffering.
R (on the application of Pretty) v DPP (2001) Mrs Pretty applied to the courts for a judicial declaration so that if her husband helped her to commit suicide he would not be prosecuted. The HL refused.
A more limited/passive form of 'euthanasia' is legally accepted in England and Wales and that is the removal of life support systems, as ruled in Airdale NHS Trust v Bland (1993). Some groups believe that is also immoral however as it denies the sanctity of life.
Contemporary examples of euthanasia and the moral shift in opinion can be seen in the cases of Tony Nicklinson and Paul Lamb. Both these men are (our have in Nicklinson's case) fighting for the right for a doctor to be legally allowed to end their lives when the time is right.
Diversity of moral views. Perhaps one of the biggest problems surrounding whether the law should uphold moral values is that whilst people do share moral values there are many that differ. French sociologist, Durkheim, suggested that it was almost impossible to find a single set of moral values that would be acceptable to everyone.
Even when a particular moral code is generally accepted by everyone there can also be disagreement as to its finer points. It is generally accepted that any kind of killing is wrong and yet there are strong, opposing moral views on whether abortion is the taking of a human life or a woman exercising rights over her own body.
This differing moral attitude can also be seen in the abortion law of different countries. In England the abortion law acts a kind of defence for doctors who carry out the abortion as long as certain conditions are met. For example, the pregnancy is more damaging to the woman than a termination would be. In the USA, following a case called Roe v Wade (1973), an abortion is the constitutional right of all women as declared by the Supreme Court.
Differences between law and morality. So, despite the fact that the law does reflect morality and that some law even develops from morality there are some significant differences between the two. 1) Morality develops over a long period of time... whereas law can be introduced or changed instantly. Morality cannot be deliberately changed, it evolves slowly over time and changes with the will of the people. Law can be altered deliberately. Illegal behaviour can be decriminalised over night and vice versa.
2) Morality depends on voluntary codes of conduct... whereas law is more officially enforceable. Breaches of moral codes carry no official sanction or punishment. Morality relies on an individual's own sense of guilt and shame for enforceability. Law however, makes certain behaviour obligatory with sanctions and punishment.
3) Breaches in moral rules are not subject to formal adjudication but the law is ruled over by a formal legal system (the courts).
The relationship between law and morals. Law and morality are both normative. This means they both dictate the way people are expected to behave. Law appears to be based on moral positions but these moral positions are not necessarily accepted by everyone, as previous evidence has shown. So, how closely should law and morality influence one another?
Firstly, it is relatively easy to find examples of how changes in morality have eventually led to changes in the law. In the case of R v R (1991) the HL made rape in marriage illegal. The moral viewpoint that it was wrong for a husband to be able to rape his wife had been generally accepted by society a long time before 1991. This is an example of a law change being, eventually, changed as a result of the influence of moral change and so demonstrates a close relationship between law and morals.
But, can a law change lead to a moral change? In "The Legislation of Morality" sociologist Troy Duster examined drug use in America in the late 19th/early 20th centuries. Before The Harrison Act 1914, which began to control the distribution of opiates and narcotics, drug use was primarily connected to the upper middle classes who could afford to buy and use these drugs. As a result there was no real social stigma or bad moral opinion attached to drug use.
The tighter controls introduced by the Harrison Act did not make the demands for the drugs to decrease. Drug users therefore had to buy their drugs from drug dealers and the use of drugs began to become associated with the working/criminal classes. A social stigma therefore started to develop and the moral opinion towards drug use changed. This is an example of a law change influencing a moral change... and again, is another example of a close relationship between law and morality.
Natural law and Positivism. Natural lawyers believe that law and morality are closely connected. They believe in a 'higher law' or a 'divine law' that is superior to all man-made law. If law does not reflect this 'higher law' and is not in itself 'moral', then it has no authority and can be ignored.
St. Thomas Aquinas believed that this 'higher law' came from God and any law without moral content was a "perversion of law". It follows from this that Aquinas believed that if a law was not a true law then we need not obey it. Law and morality then should coincide and reflect each other exactly. Thus, again, demonstrating that they are not separate concepts and should have a very close relationship.
Positivism, however, is the opposite. Positivism emphasises the separation of law and morality into 2 separate concepts. Whether a law is moral or not positivists believe that it must be obeyed until the legislature (law making body) changes it. Therefore, it does not matter if a law sanctions something that is immoral or governs something that people do not agree with.
Jeremy Bentham proposed the Utilitarian principle that law should create "the greatest happiness for the greatest number of people". Therefore, it is immaterial if some people disagree with a law on moral grounds as long as the majority do agree. Bentham's pupil, Austin, stated that law was the command of the sovereign (Parliament) backed by the threat of punishment. Therefore it does not matter whether a law is moral or not it must be followed. Hans Kelsen went so far as to state that there is no necessary connection between law and morals, and that the law does not need moral validation in order to be legitimate.
Legal realism. The positivists ascertain that laws are just rules that need to be followed which is not an idea shared by legal realists. Oliver Wendell Holmes, who wrote 'The Common Law' in 1923 suggests that if this was the case there would be no need for lawyers or court proceedings. If there was no moral attachment to laws at all then the discretionary powers of judges when it came to sentencing for example, would not be needed. Aggravating and mitigating factors could be described as moral factors that make a punishment better or worse for a defendant based on their good or bad behaviour. So, there must be a link or relationship between the two concepts.
The Hart/Devlin debate. In 1957 the Wolfenden Committee was asked to examine a range of moral issues. The committee recommended the legalisation of both prostitution and homosexuality, and this caused great controversy as a result.
Professor Hart approved of the recommendations and argued that law and morality were separate concepts. To him morality was simply a matter of purely private judgement and that the state had no right to interfere in private morality. He also believed it was wrong to punish people who had not harmed others (homosexuality). But he also argued that society could not exist without a form of morality that mirrors the legal rules.
Lord Devlin felt that society required the observance of certain moral principles... and, even if public opinion surrounding these principles changed, the law should still uphold them. He believed that judges had the right to protect and preserve some sort of common morality. This was shown in the case of...
Shaw v DPP (1962) The D published the "Ladies Directory", which was a list of prostitutes with photographs and information on the kinds of sexual activity that they would participate in. The D was convicted of conspiracy to corrupt public morals. The judges invented this crime in order to uphold the morality of the country. They believed their job was to be society's moral guardians.
Despite changes to public morality and certain types of behaviour becoming more acceptable there are still many examples of cases that are decided with a more Devlin way of thinking...
Brown (1993) A group of consensual sado-masochistic homosexuals were jailed as the HL ruled that their behaviour was a breach of the criminal law. The HL were imposing a certain standard of acceptable behaviour on society. This case, however, is contradicted slightly by...
Wilson (1997) Here the CA accepted that a man branding his initials on to his wife's buttocks would not lead to a criminal conviction because his wife had consented. The court believed that this was a private matter between a husband and wife that the law could not interfere with.
How different are the circumstances in Wilson to those in Brown? It would be interesting to see if a situation like Brown would have the same outcome nowadays between homosexual men in a civil partnership or marriage.