Morality can be roughly described as a set of values common to society, which are normative, specifying the correct course of action in a situation, and the limits of what society considers acceptable. Law can be seen as the state echoing, and seeking to uphold, these values. These descriptions can be seen to be, however, not entirely correct, and the issue of law and morality is undeniably complex. It is this, therefore, that we shall be examining in this essay.
What is the law and what is moral?
One of the major problems which arises when law attempts to take the above approach with regard to morality is the dynamic nature of any moral code. It will consistently change with time, to reflect a change in attitudes, and the law must attempt to stay abreast of the situation. An example of this can be seen in R v R (1991), which changed the law, so that rape within marriage became a crime. Previously, the law had seen this as impossible, since the wife was legally seen as being almost the property of the husband via the marriage agreement. Morally, this view had long been seen as outdated and wrong, yet the law was slow in adapting. This problem can further be seen in the area of embryology, where scientific advances have happened so swiftly that the law has trouble keeping pace with the new moral issues raised by in vitro fertilisation, cloning, stem cell research etc. In R v Human Fertilisation and Embryology Authority ex parte Blood (1997), the Court of Appeal forced a change in the law, due to circumstances unforeseen at the time the relevant statue was passed, providing another example of disparagement between the law and contemporary moral views. Emile Durkheim highlighted another problem with law echoing morality when he espoused the problems, in a modern, complex society of finding a moral code which all would agree on. Different groups have different attitudes, and as Jock Young pointed out, these attitudes are value judgements based on what an observer sees as being normal in society, and will, like all morals, change over time. If the law is to enforce morals, then it is faced with the problem that what one person considers immoral, another might not, so which viewpoint should it sanction? This can be seen in the case of Gillick v West Norfolk and Wisbech Area Health Authority (1986), where Mrs Gillick sought a declaration that what she saw as an immoral activity (making contraceptive advice and treatment available to girls under the age of consent) was, by the nature of its immorality, illegal. There was great moral 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 the measures would prevent unwanted pregnancies). The question for the law was which moral viewpoint it would support. After a protracted battle, the House of Lords ruled 3-2 against Mrs Gillick, but stated that they acted due to what was legal under the relevant statutes, rather than because of moral arguments. This leads us on to the matter of what exactly the relationship between law and morality is, but another issue must be addressed first. If such conflict can arise between law and morality, then the two can clearly not be synonymous. What then are the similarities and differences between the two?
As we have already seen, morals can be seen as a set of values which are enforced by law. Morals change over time (in fact some, such as Friedrich Nietzsche, went as far as to say that morals are little more than contemporary prejudices that suit people’s needs at a given time), but nevertheless, contain some basic elements. They are primarily voluntary and subjective, and whilst certain views may be persuasive, one is under no obligation to hold them. 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 by, for example, ostracising someone who doesn’t follow a particular belief. Morals tend to develop slowly, often over hundreds of years, and are thus deeply influenced by the development of local culture. Thus western morals owe a great deal to Judaeo-Christian beliefs, while those in the east are more Islamic based. In comparison to this, whilst law can be related to this culture (e.g. Lord Atkins’ ‘neighbour principle’, the basis of the tort of negligence, is derived from the biblical command to ‘love thy neighbour’) it can also be completely secular, and is introduced almost immediately. Whilst actions like theft and murder are generally condemned by both law and morality, crimes such as parking violations are not seen as immoral, whilst immoral acts such as adultery are not criminal under UK law (although it is grounds for divorce). 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’. When MPs debate a law involving strong moral points, they are permitted to vote as their moral belief dictates, as opposed to party will, so laws can therefore have a moral nature in their existence. We therefore return to the earlier question of the relationship between the law and morality.
Theories on the Relationship
There are various theories on what the relationship should be, and we shall look at these and examine further how far the law upholds the moral values of society, having already seen the difficulties in defining what these values might be, if they exist. The first theory to be looked at is that of natural law, espoused by St Thomas Aquinas, and more recently Professor Lon Fuller. This states that there is a higher law (reflected possibly by a moral code) 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, whilst Fuller (in The Morality of Law) stated that a legal system would only conform to this higher order if it followed eight principles; Generality (using rules rather than random judgements), Promulgation (making the rules known), Non-retroactivity of rules, Clarity of rules, Consistency, Realism, Constancy, and Congruence.
Another theory was first proposed by the lawyer, Jeremy Bentham, and later refined by John Stuart Mill. This theory, utilitarianism, 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. Problems arise, however, in defining who these others are (do they include embryos for example) and what is defined as harm (does it have to be direct interference)? 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. Since prohibition only pushes such activities underground, they should be decriminalised and left alone. 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
The debate over the relationship of law and morality was brought to the fore in the famous Hart/Devlin debate, which 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 on the particularly utilitarian basis that the law ‘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 (because a pluralist society won’t suddenly disintegrate), undesirable (as it would prevent development of morality), and in fact 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 (a point which, as we have seen, Hart disagreed with). Devlin felt that this morality should be based on the views of the ‘right-minded person’, and that the legislature should adhere to three basic principles: Individuals should be allowed as much freedom and privacy as is possible without compromising this morality; Parliament and the judiciary should be very cautious about altering laws concerning morality, and that punishment should be used to prevent actions abominable to ‘right-minded people’; the law should also only state the minimum of acceptable behaviour, society should have far higher standards.
Hart objected to this view, questioning what the ‘right-minded’ view was. He argued that objections to another morality were more often due to prejudice, fear, ignorance, and misunderstanding rather than the rational approach necessary for law. He gave four reasons for not criminalising that which the ‘right-minded person’ objected to. Firstly, punishment of someone does harm to them, and if their actions have done no harm to anyone else, then this surely cannot be correct. Secondly, free will is very moral, so undue interference with it would be immoral. Thirdly, this free will can allow learning through experimentation, and fourthly, legislation suppressing an individual’s sexuality will harm them, as it can affect their emotional nature.
In conclusion then, we can see that there are various theories on how law and morality should relate to each other. Whether or not the law should uphold the moral values of society is still debated, and is made more difficult as, in a pluralist society, it is difficult to know what moral values should be supported, or should the issue be left alone to preserve individual liberty? The current approach by the legal system seems to be that a common morality, based on traditional, ‘right-minded’ values should be maintained by the law, as espoused by Devlin. This may be due to a backlash against the liberalising values of the Wolfenden report. Cases such as Shaw v Director of Public Prosecutions (1961) and Knuller v Director of Public Prosecutions (1972) made use of the offence of conspiracy to corrupt public morals (which had not previously been used since the nineteenth century) and signalled that the law would attempt to uphold society’s ‘moral values’ according to Devlin’s doctrine. This approach has continued, as the more recent case of R v Brown (1994) shows. The defendants had willingly consented to various sado-masochistic practices, and none of them had complained to the police. Nevertheless, they were prosecuted, and their convictions were upheld by both the House of Lords and the European Court of Human Rights, 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.