There has been an ongoing debate about the relationship between law and morality. Numerous writers and philosophers have proffered arguments on how law is affected by morality. The question it is believed is no longer if morality affects law, it is to what extent is law affected by morality? And should there be any limitations on the relationship between law and morality? The law and morality conflict has been persisting for many years. Both the natural law theorists and the positive law theorists would agree that there is a relationship between law and morality. The argument has now moved to what degree morality should play in law?
The obvious indication that this has been laid to rest is HLA Hart’s concession made at the onset of his book, Law, Liberty and Morality. He said that there is a definitive answer of yes, that historically and casually law has been influenced by morality. In his book Hart focused on the legal enforcement of morality and likewise this essay is concerned with that question. It is believed this is the only debatable divide between law and morality. The debate became a hot topic in the 1950’s after the creation of a commission to investigate and report back on sexual moralities.
The commission led to the publication of the Wolfenden Report in 1957. The report at it outset defined the purpose of criminal law as: .. to preserve the public order and decency, to protect the citizen from what is offensive and injurious and to provide sufficient safeguards against exploitation and corruption of others especially the vulnerable, that is the young, weak in body or mind, inexperienced or those in a state of physical, official or economic dependence. The Law should not intervene in the private lives of citizens or seek to enforce any particular pattern of behaviour further than necessary to carry out the above purpose.
Before embarking on the discussion proper, a definition is required for morality and for what law is. Morality according to the Merriam-Webster online dictionary is (a) a doctrine or system of moral conduct; (b) particular moral principles or rules of conduct; or (c) conformity to ideals of right human conduct. Law on the other hand is defined as “a binding custom or practice of a community: a rule of conduct or action prescribed or formally recognized as binding or enforced by controlling authority. ” That is morality is not enforceable by its definition while law is.
Moralities are normative rules applied to a society or a sub-group of society that does not bind them in a court of law. The only enforceability of morality by its definition is from the group applying peer pressure. There are two main schools of thought in this divide between law and morality, the natural law theorists and the positive law theorists. The natural law school bases much of their ideas of law in their religious beliefs or other transcendental force such as nature. While positivists argue that law has no necessary basis in morality and that it is simply impossible to assess law in terms of morality.
Opposition Supporters of the legal positivist school, such as Hart and Mills, purports that law should be in a different sphere from morality. Utilitarianism, a subgroup of the positivism, believes that laws should only serve for the maximization of utility or happiness for the majority. John Stuart Mills said that instead of society imposing morality on members of a society, the individuals should be free to choose their own conduct. Utilitarian’s are not concerned with the morality of law. They believe that law should only play a minimal role in an individual’s life.
Persons should be free to do whatever they want as long as it does not harm another. This is referred to as the ‘harm principle’. Mills said “the only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others”. Mills went on and said that not even for the individual’s own good should such power be exerted. This argument is rebuttable in that not because there was no immediate physical harm to another, there was no harm.
It could be argued that someone taking drugs or proliferating pornography causes ripple effects that may result in harm to others. Pornography promotes women as sexual objects and thereby promotes sexual violence against women. Drug users, by their combined effect, have led to the growth of large underworlds that not only supply drugs but commits direct victim crimes such as murder. If Mills theory is to be adhered to, this would mean that even in a situation of explicit sadomasochist sexual practices that could result in the injury to participants, the law should not get involved to prevent harm.
This is because the individuals consented to such acts and no one will be harmed except the willing participants. In this light R v Brown would have been decided incorrectly. Hart said that the judges in Shaw v DPP, where the defendant was convicted for conspiracy to corrupt public morals after publishing a booklet containing details of prostitutes and their sexual practices, “ seemed willing to pay a high price in terms of the sacrifice of other values for the establishment or re-establishment-of the court as custos morum. ” The value Hart was referring to is the legality principle of Lon Fuller.
He was suggesting the ruling made the law imprecise and thereby itself immoral. Fuller suggests that for law to be moral there must be eight elements referred to as the ‘inner morality of law’ or ‘principles of legality’ or ‘procedural natural law’. The eight elements are generality, promulgation, non-retroactivity, clarity, non-contradiction, capability of compliance, constancy and congruence. These elements Fuller suggests are what a good legal system should aspire for but no one system has or is expected to perfect all elements.
However, significant lack of these elements may mean that a system is an immoral legal system and could support tyranny. Fuller said that tyranny is a result of the break down of the internal morality of law and was the case in Nazi Germany. Hart made that very connection between the principles of legality and tyranny when he suggested that there was no adherence to the principles of legality in Shaw v DPP and by extent was in itself immoral law. The central problem with morality is whose morality is the right morality to enforce.
Nazi Germany is the best example of law enforcing morality. This is why caution must be used with the continued growth of the court making moral judgements and pronouncing itself as the custos morum. Hart said that there are several flaws with the use of law to enforce morality and if no such enforcement exists it would not necessarily lead to the disintegration of society. He said that society can support several different and sphere of morality. What is considered moral in one country is not necessarily the same in another.
On a smaller scale, what is considered moral in one religion within a country may not hold true for another, yet they can exist in relative harmony through mutual respect. He also said that by using law to enforce morality will result in the stagnating of morals in time. It is evident that morality changes with time and what was immoral years ago would not be immoral today. Sometimes the existing laws do not match changes in societal. In the case R v R, where a husband was charged with attempted rape of his wife, the existing law at the time was outdated in respect of the current moral standards of society.
If the courts had followed the law as was, they would directly contradict the will of society and the husband would not have done anything illegal. In that case the court made a value judgement, one based in morality to adapt to the change in the morality of society and found that a husband could in fact rape his wife. This case demonstrates the role morality plays in law. If courts did not have any moral basis, then this may lead to disconnect between the law and society. In R v R the courts had a choice either observe an immoral precedent or to adapt itself to the changing morality of the society.
Although the judges may try to propound that they only declared what the law was, this judgement is one on moral basis. Should the judges have followed the law at the time that a man cannot rape his wife? Wouldn’t that have led to an infringement on the woman’s individual right? Are judges the right people to expound morality? Supporters The idea that morality has no place in law has been refuted by many theorists such as Hyman Gross and Lord Devlin. Gross contended that Law and morality are one and the same.
Laws are inherently moral and that is why acts like murder, rape and theft have been made illegal. Law and morality cannot be separated as the society creates law based on the foundation that the behaviour being address has to be immoral or undesirable by the reasonable man. The problem with this view is that this cannot explain acts that are prohibited by law but not immoral or the reverse. Sex outside of marriage brings a very strong social scourge but no one believes that adultery rise to the level for legal reprimand.
Devlin argued that there is an underlying moral web that keeps society together and it should be protected by law. His approach has some aspect of social contract theory, which suggests that everyone in society is there by agreement. He said that to exist in a society there must be some general principles that members have a consensus on. It could be said to be analogous to a family. In a family there may be several different personalities, but what keep them functioning like a unit is that there are underlying similar values that act as a cohesive bond between members.
Devlin said in “The Enforcement of Morals” (1959) that: “Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government… the suppression of vice is as much the law’s business as the suppression of subversive activities. “
Former Minister of Justice of Jamaica, Senator Harding, in his speech at the inaugural lecture at the Institute of Law and Economics said it would have been helpful if Lord Devlin had provided examples of some modern societies which have disintegrated because of the loosening of moral bonds. And it might be a better thing for some societies to disintegrate by loosening its moral bonds. Nazi Germany comes to mind; those societies disintegrate from within more frequently than there are broken up by external pressures… Devlin said that it is morals that hold society together and should therefore influence the development of law.
He goes further and said that even if private acts are considered to create sufficient public disgust, that is if the ‘reasonable’ man finds this act so unacceptable then it threatens the moral fabric of society and should be subject to criminal punishment. He describes a limit of tolerance as to how much of an immoral act society or the reasonable man can tolerate. Once society passes this limit then something must be done to intervene. Lord Devlin did not suggest that it is all immorality that should be sanctioned. He suggested that the ones that bring ‘right-minded man’ to disgust should be.
It is not believed that Devlin was out of touch with the state of developing individual liberty. It is how far those individual liberties will be allowed to infringe on the general public morality and liberty? There needs to be a balance between the individual’s right and the general public’s. Lord Devlin asked if society has the right to make judgment on individual morality. He answered yes, and this seems to be the accepted approach in R v Brown and Shaw v DPP. There is no where in the past were law has developed in an abstract. Law has developed along with the social changes as R v R
Devlin also proposed a guideline for the implementation of statutes. He supported individualism and suggested that persons should have the maximum amount of freedom to do as they wish, except when it conflicts with the society’s integrity. He also said that law should only be created to sanction behaviours that are gross, not just merely immoral. And finally, the law should only set the minimum basic standards expected of individuals. Conclusion Morality is important to the integration of society and if the mythical social contract theory has any weight it is in fact as Devlin suggest the web that holds it together.
However, it can also be dangerous and may also be the underlying reason for actual disintegration of society as in Nazi Germany. There is no correct answer or side. The answer rest in the balance: the balance between the individual right and that of society, the balance between the positivist and the naturalist, the balance between the heterosexual and the homosexual. The individual should have the right to do as he feels but there has to be limitations. The extremes of either side of the debate are the danger zones but the answer lies in the indefinable, undiscoverable shadows of the gray that rest between the divide.
1. MDA Freeman, Introduction to Jurisprudence 8th Edition (Sweet & Maxwell) 2. Http:sixthformlaw. info/01_modules/other_materials/law_and_morality_/08_hart_devlin. htm 3. HLA Harts, Law, Liberty and Morality (University of Stanford Press) 4. Dwight Bellanfante, “Keep the law out of Gays Bedroom” (The Jamaica Observer October 31, 2004). 5. Elliott & Frances Quinn, English Legal System 11th Edition (Longman-Pearson, UK), 6. ‘Criminal Law’, Clarkson and Keating, (Sweet & Maxwell), 2007 7. Gary Slapper And David Kelly, The English Legal System 11th Edition (Routledge, UK) Page
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