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Law and Morality

THE LINK BETWEEN LAW AND MORALITY Morality can be described as a set of values common to society, which are normative, specifying the correct course of action in a situation and the limits of what society considers acceptable. Law on the other hand according to Osborn’s Concise Law Dictionary is a rule of conduct imposed and reinforced by the sovereign. A body of principles regognized and applied by the state in the administration of justice. If law is to enforce morals, then it is faced with the problem that what one person considers immoral , another might not, so which viewpoint should the law uphold.

This can be seen in the case of Gillick v West Norfolk and Wisbech Area Health Authority (1986) where Mrs Gillick sought a declaration that what she saw as an immoral activity (making contraceptive advice and treatment available to girls under the age of consent) was by nature of its immorality, illegal. This was a moral conflict as some saw this as immoral – it encouraged underage sex – others felt it was moral as young girls would engage in underage sex anyway , but contraceptives would prevent unwanted pregnancies.

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Which viewpoint would the law support. The House of Lords ruled against Mrs Gillick but stated that they were governed by the relevant statutes rather than moral arguments. What then is the relationship between law and morality. What are the differences and similarities The vast differences between existing theories of the basis of law often fail to notice the fact that they are based on the practice of comparing an act to certain standards in order to determine its legality. 1] Different approaches differ in terms of which standards are compared and assessed, though both ultimately assess acts to certain standards to determine their legality or morality. The two leading theories on the topic are positivism and naturalism – the debate between the two has fuelled theorists for centuries. Many observers of positivism presume that it completely dismisses any role of morality in the application of the law, while naturalism bases the existence and validity of law on moral bases.

Although the theories are fundamentally different, it is argued that a link between law and morality is glaringly obvious and unavoidable, no matter which side one chooses to follow or favour. This paper will seek to argue that claims which deny any link between law and morality are weak and flawed at best, and apply in a limited manner to simple, straightforward cases. The mere existence of the ‘hard case’ and of court deliberation provides a great deal of evidence for not only the existence of the link between law and morality, but also the necessity of such a link.

The naturalist and positivist theories will be explored in order to assess whether the link between law and morality can survive its critics and strengthen the faith of its followers. Legal Positivism Positivists claim that objective morality simply cannot exist because values consist of different attitudes towards and beliefs about certain values. [2] Attitudes and beliefs differ between individuals and cause us to react to a certain act in a subjective manner. Moral perceptions are predominantly emotional, so that such assessments in the realm of the law cause uncertainty and inconsistency.

It also fails to recognise difficult cases and the possibility of new cases arising. The apparent main flaw of positivism is that it is unable to explain the legal deliberation which takes place in the courtroom, particularly the difficult cases which have no apparent ‘yes or no’ answer. The very difficulties posed by interpreting the law and applying it to everyday circumstances are unable to be adequately explained by positivism. Indeed, there is a distinction here between hard and soft positivists; the latter do recognise a form of moral basis upon which written laws are perched.

Yet both soft and hard positivists are at pains to explain how hard cases arise, in which there is simply no right or wrong answer, and in which morality may unavoidably take a central role. Morality and the Naturalist Approach Naturalists claim that non-legal considerations such as ideological, moral and political factors are not only relevant to the posited law, but that law is also based on such factors. The central argument of naturalism is that objective knowledge of right and wrong can and does exist, and that this provides the basis for legal decisions as well as for the validity of law.

Naturalists such as Aquinas[3] claim that natural law provides the basis of validity for posited laws. Rousseau[4] believes that positive law cannot override or entrench upon certain existing natural rights; Aristotle claims that natural justice exists independently of individual perceptions of or opinions on it. [5] Jeremy Bentham proposed utilitarianism where moral action was the one that produced good for many, even it was at the expense of one – the greatest good for the greatest number.

John Stuart Mill’s refinement of the idea argues that while this is true the individual should not have to follow society’s morals and should be free to act as they wish provided they do not harm others. The problem arises in defining who are included in others and what is harm. It is clear that naturalist claims to provide a strong link between law and morality, the latter of the two being a basis upon which the former is based. Judges, when they interpret and apply posited law, often make non-legal considerations in order to apply the law effectively.

Naturalism, however, has a major flaw in that it claims the existence of objective morality. There are many case examples which suggest otherwise. [6] One presented with two rather extreme and different concepts of the link (or not) between law and morality. Is it plausible that such a links exists? Is there evidence for such a link, and how does it serve to affect how the law is administered? Does there really need to be objective knowledge of right and wrong in order for the link to be maintained? In order to explore these questions, the ever-elusive ‘difficult case’ will be assessed.

It will be argued that the link between law and morality is not weakened by the argument that objective knowledge of right and wrong is nonexistent. The debate over the relationship between law and morality came to the forefront in the Hart/Devlin debate which followed the publication of Wolfenden Report in 1957. The report recommended the legalization of prostitution and homosexuality on the particularly untilitarian basis that “the law should not intervene in the private lives of citizens or seek to enforce an particular pattern of behaiour further than necessary” to protect others.

Hart supported the report’s approach stating that legal enforcement of moral code is unnecessary. Devlin on the other hand was strongly opposed to the report. He felt that society had a certain moral standard which law was obliged to uphold as society would fall apart without a common morality. Devlin felt that this morality should be based on the views of the ‘right-minded person’ and that legislature should adhere to three basic principles: (1) Individuals should be allowed as much freedom and privacy as is possible without compromising morality. 2) Parliament and the judiciary should be cautious about changing laws relating to morality and (3) punishment should be used to prevent actions considered abominable to ‘right-minded people’. Hart opposed this view questioning what was ‘right-minded’ and submitted four reasons for not criminalizing what the ‘right-minded person” objected to. (1)Punishment of someone does harm to them only and if their actions involved no one else this was not right. 2) Free will is very moral, so interferance with free will would be immoral, (3) Free will allows learning through experimentation and (4) legislation surpressing an individual’s sexuality will harm them, as it can affect their emotional state. For the majority of legal issues, judges are not required to deviate from posited law and precedent in order to decide. The law makes murder wrong, and it has been a long-standing principle that taking the life of another is morally abhorrent. Yet what of the ‘hard cases’? What if A kills B in self-defence?

What if C forced A to kill B else A lose his own life? What if the application of a law is indeterminate? Can posited law be applied without recourse to moral reasoning? Positivists such as Dworkin and Hart differ in their approach. Dworkin claims that there will always be applicable law,[7] while Hart claims that judges can make non-legal considerations under such circumstances. [8] Hart’s theory is applicable to the less open-textured terms where changes made by non-legal considerations are the result of “resemblances which can reasonably be defended as both egally relevant and sufficiently close. ”[9] The judge thus utilises morality as a way of choosing between pre-existent definitions, without devising his own definitions. Although Hart is classed as a positivist, he does acknowledge a “core of indisputable truth in the doctrines of natural law”[10] which enables law to be based on something more than simply factual considerations. Hart’s theory can be interpreted as recognising a form of natural law, although he does stipulate that having recourse to moral values does not always ensure that law and its application will be just.

This assessment of Hart’s approach is plausible, and it serves to create a link between law and morality which avoids the objective criticism of the naturalists. It provides a strong argument for a link between law and morality which is based on interpretational, social considerations which are evident in the courtroom today. It is perhaps necessary to query: does the law define what is right and wrong, or do we determine good and bad independently of the law? There are certainly evident customs in society which have strong influences on the way we behave.

Such customs are not implemented by the law or backed by a sanction; they are simply examples of moral codes within a society which exist independently to the law. Does this mean that law and morality have no connection so that the latter can only be found in customs? Does a moral rule backed by the law become a valid law no matter what its content? It is arguable that even majority abhorrence of an act does not make it an immoral act per se, despite the fact that societies need a shared moral outlook in order to exist. 11] It could thus be suggested that the law is simply an embodiment of the current moral outlook of society; like morality the law changes according to attitudes and social tolerance. It is such observations that cause the positivist shunning of the link between law and morality to become less convincing. It is even arguable that the obeying of law is based on the recognition of the moral rule that law should be obeyed; the threat of sanction is evidently not enough to deter some. It could further be argued that the only reason that legislation has authority as law is because of the moral structure of a society.

As has already been mentioned, the law develops and evolves according to moral outlooks; this can be seen where laws prohibiting same sex marriages and abortion have been abolished. If the law were completely disconnected from morality, why has it developed and evolved over time? Why does social pressure to repeal or change law often achieve its goal? The Link Between Law and Morality – Evidence Dworkin claims that courts refer to non-legal (moral) standards when deciding hard cases. Assessing and taking into account moral and political considerations has the potential to create a complex web of law and “justify the network as a whole”. 12] It is strongly arguable that deciding difficult cases without appealing to non-legal considerations is futile – the reason that such cases are ‘hard’ is because the law does not provide enough direction. However, it is important here to stress that decisions are not free to be made according to personal convictions – judges are on the contrary required to carefully weigh social factors in applying and interpreting the law. Dworkin’s theory in this sense is able to escape the positivist criticism that non-legal convictions are ultimately subjective.

Rather, the judge is assigned the difficult interpretative task which is seen constantly in court. This is evident in cases such as that of Re A (Conjoined Twins)[13] in which moral judgements were inevitable and necessary in applying the law to the specific circumstances of the case. Ultimately, the judges were faced with the decision of killing one twin in order to save the other, or to not act and cause the death of both twins. While moral judgements are dangerous ground here, a positivist could not argue that the law as it is could be applied simply and without problem – often the law is simply not enough.

The law in this case proved of very little aid – how is one to decide whether A’s life has more importance or value than B’s life? While moral considerations could have caused the decision to fall either way, it must be stressed that such situations must risk the dangerous ground created by moral convictions, particularly because the law provides little guidance. Simple cases indeed provide evidence that a link between law and morality is not only non-existent, but also not necessary. [14] Yet the ever-emerging hard cases cry otherwise; they not only highlight the constant hortcomings of posited law, they also emphasise the need to acknowledge and utilise the link between law and morality. Although theorists claim that natural law need not override positive law, except when the two conflict, this serves to strengthen the link between law and morality. If there is no link between law and morality, then how can conflict occur in the first place? Why does public outrage occur when an ‘unjust’ law breaks the boundaries of social tolerance? Those who claim that there is no link between law and morality utilise the naturalist claim to objective morality as their basis for criticism.

Yet the term ‘universal morality’ need not apply to the universe as a whole. It is plausible, and certainly does not discredit the naturalist theory, that ‘universality’ or ‘objectivity’ remains as such despite being applied or interpreted differently between societies. Because the universal moral to preserve life may allow the sick to be killed in primitive societies to save sparse resources for the healthy, while requiring that all efforts be made to save every life possible in richer, more able societies.

The moral principle – the preservation of life – still remains existent, it is simply expressed and applied differently between societies. [15] Conclusion There are various theories which discuss how law and morality should relate to each other. The current approach by the legal system seem to be that a common morality , based on traditional values should be maintained by the law as exposed by Devlin. Cases such as Shaw v Director of Public Prosecutions (1961) and Knuller v Director of Public Prosecutions ( 1972) made use of the conspiracy to corrupt moral.

This had not been done since the 19th century. This was the beginning of the law to attempt to uphold society’s moral values according to Devlin’s doctrine. This approach continued as the more recent case of R v Brown (Anthony) 1992 demonstrates. The defendants had had willingly consented to various sado-masochistic practices and none of them reported it to the police. Yet they were prosecuted and their convictions were upheld by both the House of Lords and The European Court of Human rights, based on public policy to defend the morality of society.

Whether or not the law should uphold the moral values of society is still debated. Those who criticise the link between law and morality often rely on the argument that no single opinion of correctness can exist,[16] yet such criticisms presuppose that such a link requires a single notion of correctness or justice. [17] It does not require such a single notion; it merely requires the recognition that legal considerations are often not enough, and that the interpretational practice which takes place is indeed a result of the link between law and morality.

To ultimately deny a link between law and morality is to entirely discredit legal precedents, lengthy assessments of judge decisions, and the controversy of many difficult cases. It is also to turn away from the glaringly evident evolutions and changes which have occurred in the legal sphere – to ignore the changing of legal standards according to societal outlooks. Such evidence is difficult to ignore. Upon which other basis does the law stand if it does not reflect the moral tolerances and standards of the society which is subject to it?

Bibliography R Alexy, ‘On the Thesis of a Necessary Connection between Law and Morality: Bulygin’s Critique’ (2000) 2 RJ 13, 138-147. T Aquinas, ‘Summa Theologiae’, in Selected Political Writings, JG Dawson (trans), AP D’Entreves (ed) (BB, Oxford 1970). J Bentham, Of Laws in General, HLA Hart (ed) (AP, London 1970a). J Bentham, An Introduction to the Principles of Morals and Legislation, JH Burns, HLA Hart (eds) (AP, London 1970b). E Bulygin, ‘Alexy’s Thesis of the Necessary Connection between Law and Morality’ (2002) 2 RJ 13, 133-137.

P Devlin, The Enforcement of Morals (OUP, New York 1996). R Dworkin, Law’s Empire (Belknap Press, Cambridge, Mass. 1986). J Finnis, Natural Law and Natural Rights (OUP, New York 1980). HLA Hart, The Concept of Law (CP, Oxford 1961). HLA Hart, The Concept of Law (2nd edn, OCP, Oxford 1994). DD Raphael, Moral Philosophy (OUP, Oxford 1994). R Wacks, Understanding Jurisprudence (OUP, Oxford 2005). ———————– [1] R Wacks, Understanding Jurisprud). ence (OUP, Oxford 2005 [2] DD Raphael, Moral Philosophy (OUP, Oxford 1994) ch. 2. 3] T Aquinas, ‘Summa Theologiae’, in Selected Political Writings, JG Dawson (trans), AP D’Entreves (ed) (BB, Oxford 1970) pt. 2, qu. 94, art. 2. [4] JJ Rousseau, The Social Contract (OUP, Oxford 1762). [5] Aristotle, Nichomachean Ethics, H Rackham (trans) (William Heineman, London 1938). [6] Corbett v Corbett (1970) 2 WLR 1306 CA per Ormrod LJ. [7] R Dworkin, Law’s Empire (Belknap Press, Cambridge, Mass. 1986) 32-34. [8] HLA Hart, The Concept of Law (2nd edn, OCP, Oxford 1994) 145-147. [9] HLA Hart, The Concept of Law (CP, Oxford 1961) 127. 10] HLA Hart, 1994, op. cit. , 146. [11] P Devlin, The Enforcement of Morals (OUP, New York 1996). [12] R Dworkin, 1986, op. cit. , 245. [13] (2000) 4 All ER 961, (2001) 1 FLR 1 CA. [14] J Finnis, Natural Law and Natural Rights (OUP, New York 1980) 33-34. [15] J Finnis, 1980, op. cit. , 34. [16] E Bulygin, ‘Alexy’s Thesis of the Necessary Connection between Law and Morality’ (2002) 2 RJ 13, 133-137. [17] R Alexy, ‘On the Thesis of a Necessary Connection between Law and Morality: Bulygin’s Critique’ (2000) 2 RJ 13, 138-147.


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