Law and Morality

The relationship between law and morality

• There is a close relationship between law and morality for both functional and historical reasons.

• English law is informed by a judaio-christian tradition. • This relationship changes over time. E.g. homosexuality, drink

driving, insider dealing.• Sometimes the law appears to respond to changes in moral

attitudes e.g. Rape within marriage (R v R), manufacturers owe a duty of care to consumers. (Donaghue v Stevenson)

• Sometimes the law is used to promote changes in morality e.g. homosexuality, insider dealing, race relations.

• Oliver Crona goes so far as to suggest that our morality is created by the law, rather than the law emerging from our morality. E.g attitudes to paedophilia are, at least in part, informed by the age of consent. Would our attitudes be different if the age of consent were 14?

Utilitarianism (JS Mill). The law should not impose morality. Individuals should be free to choose their own conduct. The law can only step in to prevent harm to others.

Natural law – There exists an absolute morality upon which law should be based. For Thomas Aquinas (C13th) this amounted to God’s law. More recent theorists argue that higher law is represented by fundamental human rights. Lon Fuller also argues that the laws inner morality embodies certain essential procedural rules. A legal system that breaches these rules cannot claim to be a legal system.

Libertarianism. The state should interfere as little as possible in the lives of citizens. It should not impose a moral code upon those citizens. The law has a role to play in preventing harm to others.

Liberalism. Essentially endorses utilitarianism. Although there is recognition that the law has a moral dimension.

Wolfenden Committee 1957 The function of the criminal law “is to preserve public order and decency, to protect citizen’s from what is offensive or injurious and to provide sufficient safeguards against exploitation and aggravation of others . . . It is not, in our view, the function of the law to intervene in the private lives of citizens”

Professor Hart’s Paternalism. The law can intervene to prevent harm to others and to prevent harm to oneself. The ground for interference is not that it is wrong but because it is harmful. Hart’s focus is on protecting the individual.

Lord Devlin’s Legal Moralism. Morality is essential to societal existence. Therefore individual liberty can be limited to protect the fabric of society. Morality is the “cement of society.” “Society may use the law to preserve morality in the same way it uses it to safeguard anything else that is essential to its existence. “ This theory presumes an objective morality. Devlin’s focus is on protecting society

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Law separate from morality Law mirrors morality

CRITICISMS OF THEORIES

• What does harm mean?– Pornography, prostitution, soft drugs,

smoking, underage drinking.

• Natural law theories presume a moral consensus but does this exist in a changing and culturally diverse society?

Some More Theories• Hunt explains that a distinction can be made between background morality and

“foregrounded” morality.– Background morality = protection of person, property the family. Essentially reflects judiao-christian morality.– Background morality is uncontroversial because of the social consensus.– Foregrounded morality refers to a situation where the law is used to enforce a particular moral position. E.g

Obscene Publications Act 1956, S.28 banning promotion of homosexuality, R v Brown, Shaw, Knuller and Gibson

– Foregrounded issues are likely to be more controversial and there is likely to be less social consensus.

• Lon Fuller distinguishes between Morality of Duty (MoD) and Morality of Aspiration (MoA).

– MoD = the minimum standard of acceptable conduct– MoA = the standard of behaviour to which most people should aspire– The law should be used to enforce MoD but not MoA e.g “The rule that you are to love your neighbour

becomes in law: you must not injure your neighbour”– The French law that places an obligation on bystanders to help at an accident does not exist in English law.

It is immoral to watch somebody drown but there is no legal obligation to save the victim. – The rule that duress is not available as a defence to murder appears aspirational, in that it appears to be

promoting heroic behaviour (R v Howe) – There are likely to be arguments over what amounts to morals of aspiration and morals of duty.

Cases and examples

• Gillick: utilitarianism v natural law

• Shaw, Knuller, Gibson, Brown: Devlin’s legal moralism.

• Parenting orders: utilitarianism v natural law.

• Pretty: utilitarianism v natural law