FAKULTI PENDIDIKAN DAN BAHASA

SEMESTER JANUARI / TAHUN 2016

KOD KURSUS : OUMM 3203

TAJUK KURSUS : PROFESSIONAL ETHICS

NAMA

FARZAANA NAFISA BINTI MD ALI

NO. MATRIKULASI

820727075294001

NO. KAD PENGNEALAN

820727075294

NO. TELEFON

0124688751

E-MEL

far27nana@yahoo.com.my

PUSAT PEMBELAJARAN

OPEN UNIVERSITY MALAYSIA

SEMAEO RECSAM,PULAU PINANG

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THE RELATIONSHIPS
BETWEEN THE LAW AND
MORAL STANDARDS
&
THE PROCESS OF FORMATION
OF THE SELECTED LAW

Jeremy Benthams defifinition of law is usually summarized as the command of a

sovereign backed by a sanction. Bentham defined a law as an assemblage of signs

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declarative of a volition conceived or adopted by the sovereign in a state, concerning the

conduct to be observed. By persons, who are or are supposes to be subject to his power.
Blackstone defined that law made from pre-existing customs exist as positive law
separate from its legislator or judge. Legal Theorists throughout the centuries pointing out
issues on whether the law must conform to higher standards of justice and morality. The
natural law tradition or elements of it date back to the time Socrates and the Stoics.1
Moral standards by definition relating to the standards of good or bad behaviour,
fairness, honesty, etc. that each person believes in, rather than to laws. Morals, on the other
hand, can be seen as principles of right or wrong resulting from ones conscience or social
standards of behaviour. They are customs developed over a community which may eventually
become laws such as stated in the Malaysian Federal Constitution where people are free to
exercise their religion of faith. When the laws takes the form of social custom, it is not easy
to separate law and moral standard. Originally, there is no distinction between moral and law.
The law was the moral law, binding on ruler and subject alike.
The idea of law came about only when law separated into state law and moral law, the
separation which occurred when rulers gained political power to alter the law at will and the
realization that not all law was unalterable and unchanging divine law.
As state grew, law became associated with the will of authorities such as legislature and
courts. Once human authorities were conceded the power to actually make law, as happened
in the Greek city states back then, the need to curb that power was obvious. No appeal could
be made to the law itself, as the law was what the law maker willed. Only a higher law was
capable of setting aside the morality.
Religion is arguably the largest source of morality, e.g. in Malaysia, it is morally wrong
and also illegal to commit suicide. There are a number of clear distinctions between law and
morals. For example, law can always be proved by referring to a written record of it while
morality

is

opinion

and

open

for

dispute.

Law can change instantly, while morality changed gradually. It is evident that moral
viewpoints have a great influence over law making, although this depends on the area of law
involved. Abortion is an area that whilst appearing to be based on moral positions, is certainly
1Costas Douzinas and Adman Gearey, Critical Jurisprudence: The Political Philosophy of Justice
(Hart Publishing,2005)
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not accepted by everyone as there are varied viewpoints on the sanctity of life, and this can be
seen in the decisions of judges themselves. For example in United Kingdom, while the courts
have made it legal to carry out abortions under the Abortion Act 1967, they have refused
actions for wrongful life (McKay v Essex)2.
In addition, there are others distinguishing features of moral standards and law where
morality are always important in the sense that to build the moral value of a person. Morality
also enjoy immunity from deliberate change, while legal rules or laws can and must be
changed deliberately because laws may change according to cases and situation.
Moreover, moral obligations are undertaken voluntarily, but legal rules are imposed
involuntary .On the other word, the form of moral pressure is different from the pressure of
legal sanctions.
While discussing the issue of law and moral standard, it is crucial to relate it with the
opinion of the famous jurist in the field of jurisprudence. One of the famous jurist on law and
morality is Hart, where he does not believe that the validity of law is dependent on morality,
because law does not derive its validity from such a higher source.
Moreover, Hart stated that a concept of law which allows the invalidity of law to be
distinguish the invalidity of law to be distinguished from its immorality, 3 enables us to see the
complexity and variety of these separate issues. There is, therefore, no necessary conceptual
or definitional link between law and morality. At least it can be claimed from the simple
positivist doctrine that morally iniquitous rules may still be law, that this offers no disguise
for the choice between evils which, in extreme circumstances, may have to be made.
In addition, on well-known jurist point of view like Joseph Raz viewed that the
separation of law and morality is based on the institutional character of law. Law contains
some standard for human conduct, but not all. It only contains those rules and standards
appropriate to its institutional character. As the institutional character of law and morality
differs, it would be illogical to equate law and morality. Nonetheless, Raz concedes that it is
part of the very nature of law, i.e.implicit in the concept of law that it claims morally
legitimate authority.
2McKay v. Essex Area Health Authority [1982] 2 ALL ER 771,782.
3Augusto Zimmermann, Legislating Evil : The Philosophical Foundations of the Nazi Legal System
(2010) 13 International Trade and Business Law Review 221,231
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While it is true that there are many claim is false, there are no legal systems that fail to
make this claim. Since a full account of the content of the concept of law would have to
include the idea that law claims such authority, the concept of law includes reference to moral
concepts. Thus, on Razs view, law is conceptually related to morality.
Devlin, on the other hand, believed the fabric of society is dependent upon a common
morality, and where the bonds of that morality are loosened by private immoral conduct, the
integrity of society will be lost. Thus he felt judges had a residual right to preserve this
common morality (as in Shaw v DPP 4where Defendant was convicted of corrupting public
moral by advertising prostitutes, even the House of Lord invented a crime to cover the
situation).
Although it is clear that the extent of whether law enforces morals depends on the area
concerned, it would be too unrealistic to suggest that law should be totally separate form
morals, as it is largely based on morals itself and the separation would result in disobedience
of law go against the conscience of individuals. However, while law enforces morality, it
cannot satisfy all variation as society is so pluralistic.
The issue between moral standard and law has started a long time ago and it is a never
ending issue. Islam includes morality in its teaching. In Islam, breach of morality in the form
of sins may be penalised according to, punishment prescribed by the Quran or Sunnah. In this
respect, the state have the power to penalise the criminal according to the state which is
known as tazir offences if the law is not existed in Quran and Sunnah.
Morality is conformity with recognised rules of correct conduct, or a character of
being virtuous or a system of duties or ethic. Morality is generally informal system. It does
not depend on how rules are stated. It neither has any formal rule of evidence.
Nevertheless, once a moral rule is codified as a rule or law, it has to be followed. Morality in
this respect is not only religious morality, but includes the social and cultural standard of
morality expected to be possessed and professed by each and every individual in the society.
Ethics in modern acceptance has, to some extent, a formal set of rules set forth to
govern certain conduct or behaviour, such as the Law Reform (Marriage and Divorce) Act
1976 Morality connote the acceptable standard of conduct or behaviour in a society.
4Shaw v. Directors of Public Prosecution, House of Lord (1962)
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Before we proceed to the substance of the issue, it is pertinent to confine the meaning
of law and morality in Malaysia .The people were very rooted with their own belief and the
issue of law and moral standard is the root of the life in Malaysia. The discussion on the
relationship between morality and law must be blended well with religion because religion is
the important in Malaysia. Article 11 of Malaysian Federal Constitution sated that;
Every person has the right to profess and practise his religion and, subject to Clause (4), to
propagate it.
There is no case law on the definition or scope of the right to religious freedom under
Article 11(1) but the right to profess and practise ones religion which is rather narrow. It
may be discussed in the case of Re Susie Teoh 5where the judge seems to suggest that the
freedom of religion includes the right to profess and practise religion of her chosen
religion.
Law and morality is acceptable in ones religion. It is the connection of law and
religion for someone to be morally right. Thus, it can be said that religion is reflected in the
moral values and laws of the society. Both, law and morality meet under one roof that is
religion.
Lord Denning was quoted to have the belief that religion and law are one and the
same. At this point, according to Denning, religion and law blended well. In another
occasion, Denning said that morality is rooted in religion, whereby both are inseparable
and can never be alienated from law.
The principle of morality in Islam is obvious and have been mentioned a lot in ALQuran. As mentioned earlier, Tawhid (the Oneness of Allah), Shariah (the law of Allah)
and akhlaq6 (morality) are the essentials of Islam. These three essentials of Islam and cannot
be changed. The Quran and Sunnah provide wide range of guides and rules for the people to
5Re Susie Teoh [1986] 2 MLJ 228 6 Quran, surah al-Isra (17): especially verses 23 49

6
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understand the moral and laws.Hence, Islam is a perfect way of life, which lead the person to
become a better person but with the influence from the Western, Muslims nowadays are apart
from their true belief.
The enforcement of morality in Malaysia become the pioneer issue only in these
recent years. The popular issue on the enforcement of morality is surely the enforcement of
Shariah law. But it must be noted that Sharia is not the only law enforcing morality and
decency in the country. For example, the question arise for is it moral for a couple to kiss or
hug in public places.
Morality is deeply rooted in the Malaysian society. Morality and custom are
traditional and indigenous to the Malaysian social and legal system. It is a custom in
Malaysia or even in some part of Asia where kissing and hugging in public places is
considered indecent act.
In the Malaysian history on morality, law and religion are related to each other. From
protected law perspective, it must be noticed that Islam is the religion of the Federation. To
pronounce Islam as the religion of the Federation is an unmistakable sign that ethical quality
ought to be accepted to have noteworthy spot in the Malaysian framework lawful or social.
This is on the grounds that Islam, as specified prior, acknowledges morality as one of its
essentials.
Having said that, it is in this way sensible to propose that guidelines directing
profound quality showed in Islamic teachings is recognized as the primary paradigm in
choosing matters concerning ethical quality, so long it doesn't meddle with the disciples of
different religions to rehearse their religions. With respect to the Muslims, they must choose
the option to stick to their own law, the religion that acknowledges ethical quality as one of
its essentials. In this regard, the 'integral test 'in Fatimah binti Sihi 7is pertinent.
For this situation, the court set out a critical principle; i.e. in any cases of dissent of
rights to proclaim the opportunity of religion the test to apply in whether the demonstration
being referred to has had impact of meddling with the act of that integral some portion of
religion This likewise incorporate "the regulation of a specific religion and incorporate
7Fatimah Binti Sihi & Ors v Meor Atiqulrahman Bin Ishak & Ors [2005] 2 MLJ 25
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practices which are viewed by the group as a component of its religion." Absences of any of
it would make the religion deficient.
Having the above discussion at the top of the priority list, it in this manner takes after
that, in watching profound quality Muslims are bound with their own law. In this manner,
there ought not to be the purported 'personal freedom' in moral standards.
As said before, the position of morality is profoundly established in the Malaysian
culture. Examination in the accompanying passages will attempt to highlight a few
procurements of law, including the Government Constitution, that consider ethical quality as
one of its vital fixings.
"Morality" shows up twice in the Federal Constitution, one in art. 11(5), which
expresses that the right to profess, practice and propagate a religion shall not contrary to ,
inter alia, morality. The other is in art. 10(2), a provision that allows Parliament to create
law imposing restriction on the right to freedom of speech and expression on the grounds of,
among others, public order or morality. Law forcing confinement on the privilege to the
right to speak freely and expression on the grounds of, among others, public orders or
morality.
This provision in this way, engages the Parliament to safeguard open ethical quality
against individual opportunity. At the end of the day, Parliament might limit personal freedom
if open profound quality is in question. 'Public morality' alludes to the standards or general
good convictions of a general public or activities of a person that influence other. The
incorporation of "morality" into the Constitution could be viewed as noteworthy
acknowledgment to the part of profound quality in building our country.
In criminal law, the Penal Code provides for provisions on offences affecting decency
and moral. It is expressed in Part XIV of the Code. Those offenses are mainly relating to
dissemination of obscene publications, obscene act and obscene songs. Aside from these
offenses, Penal Code additionally punishes deviant sexual acts, such as incest and,
unnatural offenses, which incorporate buggery with animal, carnal intercourse against the
order of nature, outrages of decency (in public or in private) and inciting a child to an act of
gross indecency.

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In the law of contract, section 24 (e) of the Contract Act prohibits any contract in
which its consideration is immoral, or opposed to public policy. A promise to marry by a
married man, for example, is void for it is against morality and public policy.
As has been specified toward the starting, this argument will never end. Erasing moral
standards from the Malaysian framework for the purpose of personal freedom is verging on
inconceivable as morality is a profoundly saturated worth in the Malaysian framework,
lawful or public realm.
Damages to the profoundly established qualities would make devastation the entire
country. To wrap things up, it must be specified that seeking after on this sort of verbal
confrontation would lead us to no triumph. It will just convey us to the same bearing as the
West has been coordinated to relinquish religion and to make decimation its qualities
established in the country.

*WORDS COUNT : 2502

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REFERENCES
1. The Article on The Death And Resurrection of Natural Law by Daniel Mirabella,
[2011] WA Jurist 9; (2011) 2 The Western Australian Jurist 251
2. Malaysian Legal History, Cases and Materials, Salleh Buang, Dewan Bahasa dan
Pustaka 2002
3. Document of Destiny, The Constitution of the Federation of Malaysia, Prof Dr Shad
Saleem Faruqi, 2008, Star Publications (Malaysian) Berhad
4. Constitution of Malaysia, Text and Commentary, Second Edition, Abdul Aziz Bari
5.
6.
7.
8.

and Farid Sufian Shuaib, 2006 ,Pearson Malaysian Sdn. Bhd

Federal Constitution of Malaysia
Penal Code of Malaysia
Contract Act 1950
Legal Profession (Practice and Etiquette) Rules 1978.

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