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Law
The Political and Moral Framework of Law
Learning Outcome 3

Discuss the relationship between law and morals and consider how far the law seeks to
uphold and promote public’s values and should it.
In completing the above ensure you define Law and Morality (level 2) and compare and
contrast them (level 3) and identify areas where law and morality impinge on each other
(level 2) and explore these areas and evaluate the effect of morality on English law (level 3).

The relationship between law and morality is not an easy one. There is much debate about
whether law should reflect morality or it should be separate. The legal system sometimes
accepts a certain amount of morality. However, law and morality are not the same. There are
some legal rules that are not moral rules and the opposite also applies. As Hart explains, law
and morality should not intervene with each other. However, Devlin disagrees and believes
that law should intervene with morality. As this debate will carry on below, it is important to
know that there is no wrong or right between them.

Law is defined as a set of rules and standards of behaviour that guide all people. Without law
there can be no public order and policy, which could lead to chaos. Therefore law controls
and directs human social conduct and behaviour. If a law is created, it must be supported by
cases because it can fall into disrepute and will become meaningless. There are many areas of
law that deal with different issues. Some laws deal with issues of negligence, some with
commercial transactions, some with anti-social behaviour and with disputes between
individuals and business (O’Riordan, 2003). The key characteristics of law are – compulsory
– law formally states the behaviour that is acceptable and that is unacceptable and there is no
choice about which laws are to be obeyed, enforcement – laws do not need to be enforced by
social pressure, and timing – law can be created very quickly, not like morals, which can take
even a thousand years to develop (Brown, 1999).

Morality is described as values and beliefs that are common to society. In another words,
morality is showing the ways human beings should behave in the community. It also shows
the right and the wrong actions in a situation and what is acceptable within the society or
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community. It includes areas of abortion, test-tube babies, homosexuals, drug use,


pornography and many more. However, individual morals will differ from person to person.
For example, one person may think that sex before marriage is morally right, but another
person may think it is wrong. Therefore different individuals and groups have different views
on what is right and wrong (Elliott and Quinn, 2001).
Morals change over time because there is a difference between age groups, ethnic grounds,
religious groups and other communities. The key characteristics of morals are voluntary;
every person has different views and most of them hold differences of moral views with the
closest friends and families; informal enforcement –morals are enforced by informal
sanctions, issues – most moral places involve informing, persuading or forcing people in
communities on how they need to behave, and time scale – to develop the morals may take
even thousand years, this is because of the deep religious and social history (O’Riordan,
2003).

Law and morality have similarities and differences between them. They both show the way
that guides people in their life. However, they are significant differences between the two.
Morality develops over a long period of time. It changes slowly by the will of the people. For
example, in the late nineteen century, author Oscar Wilde was imprisoned because of his
homosexuality. Nowadays, gay couples have equal rights with heterosexual couples. Law, in
this context, can be changed deliberately by legislation. For example, if a person behaved in a
way that was against the law, then the law can be ‘de-criminalised’ overnight. As well as
behaviour that is lawful can be declared unlawful (Martin & Turner, 2004). Parliament or the
Judiciary, or similar formal institution makes the law. However, morality has no formal
creation of rules. It is described as a ‘feeling’ within society. Generally, law either has or has
not the rules that can be followed but its existence can be created. In morals, most of the
people agree that there are some immoral activities, such as rape or murder. However, the
opinion is divided when it comes to issues such as abortion or contraceptive advice for
teenagers.
Breaking the law will lead to some form of punishment by the state. Breaking morality, in the
other hand, will not involve the state, but it can lead to some form of social criticism. Another
difference between law and morality is that law rules are irrelevant to society’s attitude. So
even if the majority of people would disobey the law, the law would still exist despite the
disagreeing with the people. However, a law must be accepted by a majority of people for it

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to be effective. Morals are rules, which reflect society’s values and beliefs. Therefore the
society fights for existence of morals (Yule, Darwent and Currer, 2009).

Both law and morality dictate the ways that people are expected to behave in the society.
Some people argue that morals have an influence on the making of law. Others argue that the
criminal law represents a regular moral position. The moral standards of a community and
law are not likely to be coextensive. Breaches like murder and robbery are against the law
and immoral in the society, but when it comes to morality, then people may think differently
from each other about what is wrong or right. For example, if a person steals from a rich
person and gives to a poor person, this would count as against the law because it does not
matter who a person steals from. However, some people would count this as morally right.
Therefore there may not be meaningful agreement between the law and morality (Martin &
Turner, 2004).
Taking an example of euthanasia, the death of a human is brought about in a gentle and easy
way, in the case where of incurable and painful disease. In R v Cox (1992) case, euthanasia
was forbidden in English law. However, there are many moral arguments of legalising
euthanasia and also for keeping it as illegal. In R (Pretty) v DPP (2002), Diane Pretty was ill
with Motor Neurone Disease and she wanted to obtain a right so she could die when she
wished to do that. Also obtain a guarantee that her husband would not be prosecuted if he
assists her with the suicide. However, House of Lords refused the permission. Diane Pretty
argued strongly that people have the right to die when and how they want to. The libertarian
argument is if the acts do not harm others and it promotes everyone’s best interest, then it is
acceptable. This might seem harsh but if it is likely to happen again, then it is better to
legalise it and control it properly. However, moral arguments against legalising euthanasia
should be taken into account as well. There are religious arguments that euthanasia is against
the word and will of God. Similar to the murder and stealing, because the Ten
Commandments of the Old Testament say: ‘Thou shalt not murder’, ‘Thou shalt not steal’,
etc. This can affect the moral rules. Euthanasia also affects family members, which are third
party rights, and if family do not want their loved ones to die this way then these views
should be taken into account s well (O’Riordan, 2003).

There are different theories on what a relationship between law and morality should be. The
first theory is known as natural law, which was supported by Thomas Aquinas. Some believe

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that morals come from a higher source than man. It says that the law and morality should
overlap. The supporters of natural law would say if the legal rules do not match with the
moral rules then they should be ignored. Thomas Aquinas believed that this came from God
(O’Riordan, 2003).
Another theory on the relationship between law and morality was suggested by the lawyer
Jeremy Bentham, and later refined by John Stuart Mill. It is called utilitarianism, which
proposes that the individual does not have to follow the society’s morals and they should be
free to act as they wish, only if their acts do not harm others. However, discussions arise in
defining other, would this include embryos, and what is defined as harm, does the harm have
to be direct interference? An extension of Mill’s theory, known as ‘victimless crimes’, Edwin
Schur argued that criminal acts such as homosexuality, abortion and drug taking do to harm
innocents, except the participants. Therefore the person himself has a free will to do what
they wish and there is no victim to make a complaint. The main criticism of Schur’s theory,
using abortion as an example, anti-abortionists would certainly disagree that no harm is done
to others. Another criticism, for example drug addicts, is that people who get addicted to the
drugs are not really counted as taking drugs on their own free will (Elliot and Quinn, 2001).

In the ‘Wolfenden Committee Report 1957’ report says how far the law should reflect
morality on homosexuality and prostitution. This said the purposes of the criminal law are:
‘To preserve public order and decency, to protect the citizen from what is
offensive and injurious and provide safeguards against exploitation and
corruption of others, especially the vulnerable, that is 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 to carry out the above purposes.’
The Committee suggested that prostitution and homosexual acts between legal age citizens
in private should not be criminal offence anymore. However, prostitution acts, like asking or
pleading in the streets, still needs to be regulated by the law (Elliott and Quinn, 2001).
The further discussion about the relationship between law and morality was brought by
Professor Hart and Lord Devlin, who had very different opinions about the relationship
between law and morality on homosexuality and prostitution. Hart agreed with Mill’s theory
that the law should not get involved in the private lives of citizens and added that legal
enforcement of a moral code was unnecessary – because the society would not otherwise

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disintegrate, undesirable – because it would freeze morality, and be unacceptable – because


an individual’s freedom would be limited. This view is focused on individuals and law should
only intervene if there is a risk of harm to others (O’Riordan, 2003).
Devlin, on the other hand, disagreed with Hart’s theory and he felt that society had a certain
moral standard, which the law had a responsibility to support because the society needs to
have a common moral standard if they wanted to stay together. This is the point that Hart
strongly disagreed with. Devlin said that the morality should be based on the views of the
‘right-minded’ person, who could be pointed as ‘the man in jury box’ and this way they could
judge the immorality. Devlin also added that there was a set of basic principles, which should
be followed by the legislature. First, people should be allowed as much freedom as possible
with the integrity of society and the privacy should be respected. Secondly, punishment
should be given to those who create disgust between ‘right-minded’ people. Thirdly, the law
should establish a minimum standard of morality; society should have higher standards
(Elliott and Quinn, 2001).
Hart objected to Devlin’s view about ‘right-minded’ people. He questioned what the ‘right-
minded’ person was? When people judge about other people’s unusual behaviour, they
usually respond on what are society’s standard moral rules. Objections to another morality
were more often due to prejudice, ignorance, fear and misunderstanding. Hart gave four
reasons for not criminalising that which the ‘right-minded’ person objected to. Firstly, it is
not correct to punish someone if they do not harm anyone. Secondly, free will is moral and it
is wrong to interfere. Thirdly, this free will allows individuals to experiment and learn.
Fourthly, if legislation interferes in individual’s sexuality and their private lives, this may
harm them and it can affect their emotional nature (Yule, Darwent and Currer, 2009).

There are some cases where law reflected morality. Some of them were successful and some
not. For example, R v Brown (1993) case where defendants willingly injured themselves in
various sado-masochistic acts. Public policy required that these acts would be counted as
unlawful even that they took place in private and participants had agreed to do this. Despite
all that, House of Lords states that this behaviour was a breach of criminal law and they could
not claim the defence. A 3-2 majority, found defendants guilty but there was a disagreement
as well. Lord Templeman stated that society has the right to protect itself from a cult of
violence and that the received pressure from pain is an evil thing. However, Lord Mustill

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disagreed stating that the acts were immoral but they did not make them unlawful and the
court cannot protect people from themselves (Martin and Turner, 2004).
A different decision was made in R v Wilson (1996), where the defendant was asked by his
wife to brand his initials on his wife’s buttocks. The Court of Appeal accepted that branding
defendant’s wife was not a criminal offence because the wife’s part was private matter and
law should not get involved. This shows that the public and their moral views still influence
the law.
In R v Gillick (1986), where Mrs Gillick required a declaration that a doctor would be acting
unlawfully if he would give contraceptive treatment for her daughter without the mother’s
permission. It was argued, if teenage girls would not receive advice from doctors then it is
more likely that the girls would have sex anyway and this would increase the chances of
unwanted pregnancies. Therefore Mrs Gillick lost the case. However, in this case there is no
wrong or right because there are opposite moral views (Elliott and Quinn, 2001).

There are various theories on how law and morality should relate to each other. Whether or
not law should relate with morals of society is still debated because every individual has
different views. As espoused by Hart, law and morality should be separate. Conversely,
Devlin disagrees and thinks that the law should maintain morality. If every immoral act
would be also illegal then it would be difficult to keep the respect and this would be
undesirable, as well as impossible. However, there is a close relationship between law and
morals, as the law does uphold moral values in some cases.

Word Count: 2479

References:

• Brown W. J. 1999, GCSE Law Seventh Edition, London: Sweet & Maxwell Ltd

• Yule I., Darwent P. and Currer J. 2009, Law, Oxfordshire: Hachette UK Company

• Elliott C. and Quinn F. 2001, Law for AQA, Essex: Pearson Education Limited

• O‘Riordan J. 2003, A2 Law for AQA, Oxford: Heinemann Educational Publishers

• Martin J. And Turner C. 2004, AQA Law for A2, London: Hodder & Stoughton

Bibliography:

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• Hart H. L. A. 1959, Law, Liberty and Morality, London: Oxford University Press

• Devlin, P. 1957, The Enforcement Of Morals, London: Oxford University Press

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