Discuss the relationship between law and morals and whether law should uphold moral values? Phil Harris in an introduction to law defines a society’s ‘code of morality’ as a set of beliefs, values, principles and a standard of behaviour. A compliance with these rules is not compulsory and not required by the state. People are influenced by their family, friend’s religion. However, they could consider from themselves what they believe to be moral or immoral in their view, because a society is pluralistic and what one may consider to be immoral another may believe to be moral.
For example some communities believe that being a single parent is morally wrong whereas many others see no moral issue with it. An individual’s morals develop gradually. But they very often come from religious rules made thousands of years ago. Overtime, conduct once considered immoral becomes acceptable, for example the view on homosexuality has changed in the last 50 years.
Morals are enforced informally and are they are not enforceable by a member of the legal system as they are not a legal issue they are a rule that go against what another person believes Sir John Salmond, writing in the early twentieth century, described law as ‘the body of principles recognised and applied by the state in the administration of justice’.
John Austin described it as a command issued from sovereign power to the inferior and enforced by coercion. In Britain the Sovereign power is parliament although judges can also make legal rules that the inferior need to follow.
Morals are left to the individual to decide on and whether or not they want to follow the beliefs of the community, whereas a law is compulsory for any person to follow, with no choice in whether to do so. Anyone who breaches a legal rule may result in being arrested, prosecuted and either fined or placed in prison for a period of time. There are many distinctions between law and morals when you compare the characteristics of both. One of the distinctions is that morals are informally enforced by family, friends and work colleagues.
Whereas laws are formally enforced by a legal body and any disagreements are made, an act of parliament or precedent to be resolved. The time-scale of morals are that they are developed over many years, however laws can be introduced almost immediately and they are effective as of that moment, whereas morals take longer to become a rule within a community. For example when the legal view on homosexuality changed, it was backed up by the Sexual Offences Act 1967 it immediately came into force, However it has taken several decades for it to become morally acceptable.
And morals are also a stand on what a person ought to do not what they should do, and these cannot be scientifically proven and are open to dispute. Many laws that have a long standing history have a relation to moral standards, these include theft and murder which are include in the Ten Commandments. Judicial change can be enforced by public morality. As in R v R where it was decided that a husband should not be able to force his wife into having sexual intercourse.
Public morality may also influence legislative reform, the major reforms concerning abortion, prostitution and homosexuality could be said to reflect the permissive moral ideals of the 1960’s. There are problems in trying to create legal rules in areas where there is no moral consensus. For example, the Dianne Pretty Case, this raised the issue of euthanasia and Section 4 of the Homicide Act 1957 concerning suicide pacts. However, some legal rules have no moral connection such as the moral justification that tobacco and alcohol consumption are legal whilst smoking cannabis is illegal.
Some moral rules have little or no legal backing. For example there is no legal duty for a passerby to save someone who is drowning, unless they created the danger. An example is the case of R v Miller where there is an assumption of responsibility, where there is a special relationship and where there is a contractual duty. A major debate is whether law and morality should reflect each other exactly. Natural law theorists argue that law should strongly reflect morality.
Through specific theories differ, their shared premises is that there is a kind of higher law, known as the natural law, to which we can turn for a basic moral code. Such as St Thomas Aquinas, saw this higher law coming from God, while others simply see it as the foundations of a human society. On the other hand, Positivists hold that if legal rules have been enacted by the correct procedure, then those legal rules must be obeyed, even if they are not liked and are in conflict with that person’s morality. The Hart and Devlin debate has been argued over many years.
In 1957 the wolfenden committee was asked to examine and consider a range of moral issues. And the committee recommended the legislation of both prostitution and homosexuality, and as a result gave much rise to the debate on the issue. As Professor Hart approved of the report and strongly argued that there should be a clear separation between law and morality. Professor Hart felt that morality was a matter of private judgment and that the state had no right to interfere in one’s private morality, and that it was wrong to punish people who may have done no harm to others.
On the other hand he felt that the legal system should be based on logical ideas producing the correct decisions from the rules. But nevertheless, he did concede that society could not exist without a form of morality which can mirror and supplement the legal rules. Whereas Lord Devlin felt that society required the observance of certain moral principles and, even if public opinion was changing, the law should still support those moral principles. Lord Devlin also felt that the judges have a residual right to protect and preserve some sort of common morality.
An example of the judges exercising this right would be in the case of Shaw v DPP (1962). In conclusion, there is a relationship between law and morality. To which law upholds a set of morals that have been believed over many years. As for example of thou shall not kill has been believed since the beginning of time, and later became law in order to uphold the moral standard. So over all laws do uphold moral standards but they should not interfere with a person’s life to a degree where they have no free will.
Cite this Law and Morality in English Law
Law and Morality in English Law. (2016, Sep 17). Retrieved from https://graduateway.com/law-and-morality-in-english-law/