The relationship between law and morality is not an easy one. Moral rules and legal rules have some similarities: like all rules, according to Hart, they share a general (though not necessarily universal) habit of obedience within the society to which they apply, and a “critical reflexive attitude” (a sense of “oughtness”). Moral rules and legal rules are certainly not the same: there are some legal rules that are not moral rules and vice versa. In some cases the moral view and the legal view overlap, this will be discussed later.
There are several differences between law and morality. Firstly, in general, the law applies to everyone in society whereas morals are more of a personal opinion and can apply to individual groups of people. For example, the practice of Christianity and other denominations holds many moral views and lessons such as ‘thou shalt not commit adultery’ but this is not a law and does not bind society as a whole.
The law is laid down in statute and enforced by the judiciary and police whereas moral rules are difficult to find an absolute and are enforced through social pressure and supported by an appeal to respect them.
Another comparison between law and morality is that moral rules are not subject to deliberate creation or change. Moral views in religious groups have been created over thousands of years and overall they remain the same to this day. Moral views held by the majority of society however, change gradually over time; an example of this is drink driving. This makes it incredibly difficult to resolve disagreements to moral views. In contrast, legal rules can be changed by enactment and even the date of the change can be fixed to a certain date. Disagreements as to the content of legal rules can be resolved by references to the statutes.
Over the past thirty years there has been a considered development over societies view on drink driving. In the past it was considered to be acceptable for someone to spend an evening in a pub, consuming alcohol and then driving home. These days, society frowns on those who drive under the influence of alcohol and consider it morally wrong. This example is slightly different to the previous one however, as there has now been laws set down to try and prevent people from drink driving. This is therefore an example of the influence of societies moral views on the creation of law.
A central debate is whether law should attempt to shape morality of whether it should stay on the sidelines. The Hart v Devlin (1957) debate was trying to answer this very question. Devlin believed that the law should reflect morality and said society has the right to punish any act that offends against its shared morality, but that it should exercise this right only sparingly. In particular, individual privacy should be respected wherever possible. He recognised that some immoral acts might be tolerated. Hart on the other hand, thought that there is little or no shared morality in the modern pluralist society beyond his “minimum content” for the protection of persons and property and there is no freedom if we can do only these acts that others approve of. Hart doubted whether suffering by punishment added to the wrong of immorality could ever make a right.
The key views of the link between law and morals are illustrated in the liberal view, the liberal influence on law, the conservative view, the conservative view on law and Natural law.
The liberal position essentially involves the protection of minority views. The liberals would say that the protection of minority views leads to the overall benefit of all. The liberal view is more possibly associated with the left of the political spectrum represented by the Labour Party and the Liberal Democrats. The political and moral movements in society are often reflected in legal change. A good example of this can be seen in legislation that prohibited and controlled private sexual behaviour.
The Wolfenden Committee on Homosexual Offences and Prostitution explored and made recommendations on important areas of adult life. The Committee argued that the law should not interfere with private behaviour unless it corrupted or injured others. This “harm no others” principle has several problems. It did not say what harm is, it did not say who ‘others’ were and should you use law to prevent ‘harm’ in all cases? For example, adultery and suicide: both would cause ‘harm’ to others, however the law will say nothing about the behaviour. Also, the subjective language of the report meant that those who had their own moral and legal agenda easily manipulated its findings. The laws on prostitution are still very restrictive and often heavily penalise the prostitute and are light on the client. In terms of homosexual rights, it is only in the past few years that the law began to reflect equality between homosexual and heterosexual citizens.
The conservative view on the Wolfenden Committee was Lord Devlin. He believed that the law should have a direct input into the moral life of its citizens. The conservative influence on law was seen in some of the legislation during Margaret Thatcher’s leadership in the eighties. The most important yet controversial influence was known as Clause 28 and prohibited the promotion of homosexual lifestyles as normal family life.
For many religious groups, moral rules are to be found in the scriptures and traditions of their religion and the teachings of respected figures in the past. The Catholic Church and non-religious people tend to look to the so-called “natural law” as a guide. For example, Catholics look at the natural consequences of sexual intercourse is conception: if this is what is in nature, this is what should be, and anything that interferes with this natural process is contrary to morality.
Realists see moral assertions as inherently true or inherently false. There may be uncertainty and argument about their truth but they have an eternal truth or falsity independent of changes in society.
Relativists argue that moral truths may change from time to time and from place to place. Three hundred years ago it was morally acceptable for a husband to beat his wife if she misbehaved. In fact, he would have been failing his duty if he did not. Such a thing would be clearly immoral today.
Whether we are relativists or realists we must decide what the moral rules are, morality itself may or may not change but the public understanding of morality certainly does. We take it for granted now that all human beings are entitled to the same human rights, but only two hundred years ago the prevailing morality of Western Europe and America was that black people were less than human.
Unless we accept the inherent existence of moral views, it makes no sense to criticise as immoral anything that anyone else does.
There are some long-established rules that are legal rules as well as moral ones and were probably adopted as part of common law as much for moral as for practical reasons. For example, “thou shalt not kill” finds its legal expression in the common law offence of murder and the moral rule against stealing coincides with the legal prohibition of theft, another very ancient crime even though now codified.
Nearly all western countries prohibit the practice of euthanasia, thereby giving effect to the supposed moral rule that deliberately killing another human being is wrong even when that other has consented to or asked for the killing. Some of these countries (excluding the United Kingdom) have no qualms about killing criminals who have not consented to the killing, but the moral exception justifying capital punishment is not easy to identify and is open to debate.
An example of a case illustrating laws on debatable moral issues is that of Pretty v DPP (2002). This fairly recent case is an example of a case on euthanasia and the views both morally and legally. Mrs. Pretty had contracted motor neurone disease and was confined to a wheel chair. She required no direct medical intervention to keep her alive but did receive pain-killing drugs to ease the considerable discomfort she found herself in. She had great difficulty in talking, eating and sleeping. She was concerned that her husband would be convicted of a serious offence if he helped her to end her life and therefore sought permission of the court for euthanasia. The courts in the United Kingdom reluctantly refused her request, as did the European Court of Human Rights. The Netherlands, in 2001, enacted a law making euthanasia lawful in certain circumstances. For this to apply, the patient must be suffering continuous, unbearable and incurable pain, must be of sound mind and must voluntarily and persistently have been asked to be killed. In the case of R v Pretty she may well have qualified for euthanasia had she been in the Netherlands.
Some moral rules have been given effect by statute. The moral censure of those who deal in pornography is given legal effect by the Obscene Publications Act 1959. This makes it illegal to possess any obscene material with a view to its sale or other publication. An example of this put into action is in the case of Shaw v DPP (1961). In this case the defendant had published a booklet of the names, addresses, photographs and other details of prostitutes and was charged with conspiracy to corrupt public morals. The House of Lords later upheld his conviction.
Also, the widespread condemnation of incest (seen by many people as morally wrong even when both parties are adult and consenting) led to it being criminalised by the Punishment of Incest Act 1908.
Another example of moral rules being given effect by statute is the moral views on racism. The moral rule of discrimination based on a person’s colour is seen as being morally wrong. The Race Relations Act 1966 brought in the creation of new offences of inciting racial hatred and a new tort of unlawful racial discrimination and setting up of a Race Relations Board to combat unfair practices.
In conclusion, law and morality have an interesting general relationship in the sense that moral views over time have a significant influence on the creation and enactment of legislature. Law and morals do however have distinctive differences. Where moral rules change gradually over time, legal rules can change almost instantly by the enactment of new laws. Some types of rules require that we do something, others that we do not. Criminal laws are predominantly the ‘do not’ type. Negative rules in that they prohibit certain activities because they offend dominant values within a group, or because they are simply an affront to basic social existence. How dominant must a value be before it is wrong to go against it? With so many conflicting moralities in our multicultural society, which of them when transgressed leads to sanctions? Rape is seen as morally wrong and is a crime, however adultery is morally wrong, and in the eyes of certain religious groups is a worse transgression, but it is not a crime.
Society’s attitudes to specific areas of crime demonstrate that we have a collective morality, more diverging than converging to any conclusion. If there is a close alliance between crime and moral sentiment, and if we acknowledge that the association is a healthy one, it seems clear-cut in acts that are a menace to the system we support and the rules we are set to serve. The morality or immorality of acts such as murder, rape and theft did not change over night, but their legal nature did. The test of a crime against immorality is an ongoing one. Many summary offences are crimes but the question of are they immoral is not so straight forward. When adultery is compared to having a faulty break light on a car or the license disk is on the wrong side of a car windscreen the test of morality becomes less helpful. Although it is seen that adultery is the worst act in this case, only the car driver would actually be committing an illegal offence.
Therefore, although the law is continuously seeking to uphold and promote moral values it remains a continuous battle to find a balance between the legal applications and moral views in such a diverse pluralist society.