hey, I was wondering whether anyone could help me with Law and Morality. I'm absolutely sorted with Fault and Justice. So if anyone is interesting in sharing any morality essays, i could perhaps help out with Fault/Justice essays (as I've got full marks in both). Thanks!
This is the info I have been given for Law and Morals. I would love to see your examples of fault and justice, as those are the topics I am needing help with. If you could email me them at [email protected]
Law is a set of rules and boundaries that are established by authorities which must be obeyed, otherwise, a sanction may be given. Law was described by Sir John Salmond as ‘the body of principles recognised and applied by the state in the administration of justice’.
While Morals are beliefs, values and principles that are set by society or part of a society, determining what is right and wrong.
Unlike legal rules, compliance with moral rules is voluntary, that are often informally enforced through social or domestic pressure.
Law and morals are both “normative”: They specify what must/ought to be done and mark the boundaries between acceptable and unacceptable conduct.
However, the ways in which they both do this are different, as laws are codes of conduct which society has decided should be compulsory.
Laws are formally enforced by appointed authorities; such as Police and Criminal Prosecution Service.
With morals, they tend not to be backed by legal sanctions, but are often reinforced by social pressures; such as family and friends. They can have powerful influences on people’s behaviour, and develop over 1000’s of years; often heavily embedded in religious and social history. (Mainly Christianity) while Laws can be introduced almost immediately by Parliament or the Courts.
Law can often be seen reinforcing and seeking to uphold our moral values. But this can be seen as a major problem, regarding the nature of any moral code.
Morals will consistently change over time, to reflect a change in attitudes, and the law must attempt to keep up in these situations. An example of this can be seen in R v R (1991), which changed the law, so that rape within marriage became a crime. It was viewed that the wife was legally seen as almost the property of the husband, via the marriage agreement. This was view was morally outdated and wrong, yet the law was very slow in adapting this moral view.
If the law is to enforce morals, then it is faced with the problem that what one person considers immoral, another might not, making it harder to decide which viewpoint should it sanction? This is established in the case of Gillick, where Mrs Gillick sought a declaration that what she saw as an immoral activity (contraceptive advice and treatment available to girls under the age of consent) was illegal regarding its immorality. There was a conflict, as some saw this as immoral (as it would encourage underage sex) whilst others felt that it was moral (as underage sex would occur anyway, but this would help prevent unwanted pregnancies).
This shows that if such conflict can arise between law and morality, then the two cannot be viewed as equal.
Morals can be seen as a set of values which are enforced by law. They define not how one ‘must’ act, but how one ‘ought’ to act, and whilst they are not subject to moral enforcement, they can be informally imposed.
While law can be related to this culture, for example, Lord Atkins’ ‘neighbour principle’, which is the basis of the tort of negligence, and derived from the biblical command to ‘love thy neighbour’. Which is also believed to mean do not harm thy neighbour.
With actions like theft and murder, they are classed as ‘wrong’ both morally and legally. But for crimes such as parking violations they are not seen as immoral, whilst immoral acts such as adultery are not a criminal offence under UK law.
Laws are also fully compulsory (one ‘must’ obey them) and are formally enforced through the court system. Law and morality can therefore be seen to be particularly different, and one would thus expect their relationship to be similarly separate. They are, however, intertwined, an example of which being the ‘vote of conscience’.
There are various theories on what the relationship of law and morals should be.
The first theory is natural law, adopted by St Thomas Aquinas.
This states that there is a higher law to which law must conform. One should disregard a law which is at odds with this natural code, unless doing so would lead to social unrest. The problem arises in establishing what this higher code is, although it would seem to be based on human rights. Aquinas saw it as coming from God, while Aristotle believed it came from nature.
Another theory refined by John Stuart Mill. is utilitarianism, which proposed that the moral action was the one that produced good for the many, even if it was at the expense of the one (i.e. ‘the greatest good for the greatest number). Mill’s refinement of the idea argues that whilst this idea is true, the individual should not have to follow society’s morals, and should be free to act as they wish, provided their acts do not harm others.
An extension of this idea can be seen in the ‘victimless crimes’ debated by Edwin Schur in Crimes Without Victims. He argues that criminal acts such as homosexuality (illegal when he was writing), abortion, and drug abuse do not harm innocents, only those who partake of their own free will. A major criticism is, however, that not only can the nature of harm and others be questioned (as with utilitarianism) but it is difficult to argue that someone with a powerful drug addiction, for example, is acting of their own free will.
The Hart/Devlin Debate followed the publication of the Wolfenden report in 1957. The committee behind the report contained Lord Devlin, a prominent judge, and the academic Professor Hart. The report recommended the legalisation of prostitution and homosexuality ‘should not intervene in the private lives of citizens or seek to enforce any particular pattern of behaviour further than necessary’ to protect others.
Hart, who was influenced by the theories of Mill, supported the report’s approach, stating that legal enforcement of a moral code was unnecessary and morally unacceptable, as it interferes with individual liberty. Devlin, on the other hand, was strongly opposed to the report, on what might be cited as a natural law approach. He felt that society had a certain moral standard, which the law had a duty to support, as society would disintegrate without a common morality
The Wolfendon Report supported Professor Hart’s view that law and morality should be separate, however, various cases decided since the report show that judges are imposing their moral views in their judgements, such as in the case of R v Brown (1994), the defendants had willingly consented to sado-masochistic practices, and none of them had complained to the police. Nevertheless, they were prosecuted, and convictions were upheld based on public policy to defend the morality of society. The law is therefore seen to attempt to uphold what it considers to be public morality, even if some may dispute the correctness of that moral code.
This is a contrast to the case of R v Wilson , At her request D branded his initials on his wife’s buttocks with a hot knife. The scars led to him being charged with ABH S47. COA held his conduct amounted to “tattooing” and that it was not in the public interest to impose a criminal sanction, still showing that the public and their moral views still influence our law.
The differing approaches in these cases clearly show that judges are letting their own moral values affect their judgements.
The courts often find themselves at the centre of hugely difficult moral decisions involving life and death. They are often forced to decide between individual rights and moral codes. The following cases illustrate some of their approaches:
Diane Pretty (2001): contracted motor neuron disease and was confined to a wheel chair. She required no treatment to keep her alive, but had great difficulty talking, eating and sleeping. She was concerned that her husband would be convicted of a serious criminal offence if he helped to end her life and sought the permission of the court for active euthanasia. The courts reluctantly refused her request. This relates to euthanasia which is both morally and legally wrong, reinforcing the idea that certain views in society share the same moral and legal opinion.
Another case involving illnesses and euthanasia is the Miss B (2002): she was suffering from a terminal illness and receiving medical treatment keeping her alive. The High Court decided she had the right to refuse to continue with the treatment, this was allowed as it amounted to passive euthanasia which is legally acceptable.
Society considers it wrong to take the life of another human being and these two cases reflect this moral viewpoint.
In the case of Mary and Jodie (2000), Siamese twins had their major organs conjoined and the separation of the twins would have led to the death of one of them, but if the separation was not done, both of them could die. The parents were against the operation and wanted to put the girls’ fate in the hands of God. The courts intervened and decided the operation should go ahead; it was a “success” in that one girl survived while her weaker sister died.
In this case medical opinion seemed to overrule religious and moral beliefs, so the law was not supporting moral opinion, in favour of a medical view.
In the case of Diane Blood, Diane Blood’s husband died from meningitis after falling into a coma. They had been trying to start a family and she arranged for sperm to be extracted from him. Following his death she attempted to use the sperm to become pregnant, but this was banned under the Human Fertilisation and Embryology Act. She won the right to have the insemination carried out abroad. Under UK law their births had to be registered with a blank where their father’s name should have been. This was held to be incompatible with the human right to private and family life and the law has since been changed.
This case is an example of how moral change led to legal change.
This paper is intended to consider on the question of morality and law – whether these two notions are interdependent or have to be separated from each other. It defines both of these notions and considers the situations when law depends on morality and cannot be separated from it. Also, the instance is going to be cited of situations where law does not regulate the relations between people but morality does.
The issue of law and morality, their interdependence and, at the same time, the necessity to separate them from each other – all these questions accrue from different points of view onto moral and legal regulations – there exist positivists (who believe that law and morality cannot be dependent on each other) and non-positivists (who believe the contrary). It seems to be a lifelong issue of discussion and is often called “an-egg-or-chicken-question”. And this very issue is going to be contemplated in this work.
To begin with, it is first of all important to define law and morality themselves. Abhishek Raj gives definition to these two notions as follows. Law is believed to be a collection of legal rules meant for determine people’s behavior (and they in their turn are estimated by the state). Beside that, the state carries them into effect when someone infringes these rules. Morality on the other hand implies rules of conduct connected with some kind of social and psychological qualities. Observation of these norms will make one feel moral (or virtuous), while their breach will implicate feeling of guilt. Morality and law have different origins: morality is taught and is supposed to be engrained from the very childhood to every person; and law is usually created and enforced. Thus, it is understandable that morality comes from within the human personality, and law comes from the outside to regulate people’s behaviors.
At all accounts law has to be based on the principles of morality. The example is Christian Ten Commandments which are basic to common law as well as to criminal law. The court makes decisions on different cases relying on laws which regulate what can be done and what cannot be committed by the individuals in our society. On the other hand, there also exist such situations when there is no certain legislation to be applied. (The precedent has occurred but there is no law developed for it.) In such situations the court is to rely upon morality. Also, “morality is brought in when judges face the dilemma of deciding a case wherein more than one but contradicting legal remedy is applicable but there is no clarity with regard to their priority”. Moreover, there can be certain regulation available, but if applied this will result in injustice – in this case morality is also deferred to.
It is also significant to specify that morality and law are by no means the same or equal. What is moral can be illegal (for example, cheating on a tax return in order to save money for supporting old parents and one’s own family – it is certainly illegal, but for some it is moral). On the other hand, which is immoral is sometimes legal (like cheating on one’s spouse – no one can be legally punished for that as there is no legislation prohibiting it). If some people believe something is not moral and has to be made illegal they need to find enough supporters to make such law valid. And vice versa, if enough people argue something to be legalized they can in the same way gather and court it…
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