Toma Beleckaite

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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So even if the majority of people would disobey the law. For example. in this context. 2003). if a person behaved in a way that was against the law. test-tube babies. persuading or forcing people in communities on how they need to behave. Morality develops over a long period of time. the opinion is divided when it comes to issues such as abortion or contraceptive advice for teenagers. pornography and many more. author Oscar Wilde was imprisoned because of his homosexuality. every person has different views and most of them hold differences of moral views with the closest friends and families. in the late nineteen century. but another person may think it is wrong. issues – most moral places involve informing. Breaking morality. but it can lead to some form of social criticism. 2001). informal enforcement –morals are enforced by informal sanctions. will not involve the state. law either has or has not the rules that can be followed but its existence can be created. Breaking the law will lead to some form of punishment by the state. However. one person may think that sex before marriage is morally right. a law must be accepted by a majority of people for it 2 . they are significant differences between the two. religious groups and other communities. homosexuals. such as rape or murder. However. As well as behaviour that is lawful can be declared unlawful (Martin & Turner. Law and morality have similarities and differences between them. in the other hand. ethnic grounds. They both show the way that guides people in their life. or similar formal institution makes the law. and time scale – to develop the morals may take even thousand years. Generally. For example. most of the people agree that there are some immoral activities. The key characteristics of morals are voluntary. then the law can be ‘de-criminalised’ overnight. can be changed deliberately by legislation.Toma Beleckaite community. However. gay couples have equal rights with heterosexual couples. However. It is described as a ‘feeling’ within society. However. In morals. morality has no formal creation of rules. Morals change over time because there is a difference between age groups. this is because of the deep religious and social history (O’Riordan. drug use. Another difference between law and morality is that law rules are irrelevant to society’s attitude. the law would still exist despite the disagreeing with the people. Parliament or the Judiciary. individual morals will differ from person to person. Law. 2004). Therefore different individuals and groups have different views on what is right and wrong (Elliott and Quinn. Nowadays. It changes slowly by the will of the people. For example. It includes areas of abortion.

2009). if a person steals from a rich person and gives to a poor person. Morals are rules. House of Lords refused the permission. some people would count this as morally right. This can affect the moral rules. but when it comes to morality. then it is acceptable. Some people argue that morals have an influence on the making of law. Also obtain a guarantee that her husband would not be prosecuted if he assists her with the suicide. Taking an example of euthanasia. which are third party rights. However. Therefore there may not be meaningful agreement between the law and morality (Martin & Turner. Therefore the society fights for existence of morals (Yule. This might seem harsh but if it is likely to happen again. Darwent and Currer. The moral standards of a community and law are not likely to be coextensive. Some believe 3 . in the case where of incurable and painful disease. There are religious arguments that euthanasia is against the word and will of God. 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. There are different theories on what a relationship between law and morality should be. However. euthanasia was forbidden in English law. 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. The first theory is known as natural law. Euthanasia also affects family members. Similar to the murder and stealing. For example. Both law and morality dictate the ways that people are expected to behave in the society. the death of a human is brought about in a gentle and easy way. then people may think differently from each other about what is wrong or right. there are many moral arguments of legalising euthanasia and also for keeping it as illegal. which was supported by Thomas Aquinas. this would count as against the law because it does not matter who a person steals from. ‘Thou shalt not steal’. etc.Toma Beleckaite to be effective. In R v Cox (1992) case. moral arguments against legalising euthanasia should be taken into account as well. because the Ten Commandments of the Old Testament say: ‘Thou shalt not murder’. then it is better to legalise it and control it properly. However. However. 2004). Others argue that the criminal law represents a regular moral position. which reflect society’s values and beliefs. The libertarian argument is if the acts do not harm others and it promotes everyone’s best interest. 2003). Diane Pretty argued strongly that people have the right to die when and how they want to. In R (Pretty) v DPP (2002). Breaches like murder and robbery are against the law and immoral in the society.

Edwin Schur argued that criminal acts such as homosexuality. and later refined by John Stuart Mill. which proposes that the individual does not have to follow the society’s morals and they should be free to act as they wish. This said the purposes of the criminal law are: ‘To preserve public order and decency. still needs to be regulated by the law (Elliott and Quinn. However. 2001). prostitution acts. The law should not intervene in the private lives of citizens or seek to enforce to carry out the above purposes. except the participants. and what is defined as harm. like asking or pleading in the streets. who had very different opinions about the relationship between law and morality on homosexuality and prostitution. 2001). In the ‘Wolfenden Committee Report 1957’ report says how far the law should reflect morality on homosexuality and prostitution. Thomas Aquinas believed that this came from God (O’Riordan.Toma Beleckaite that morals come from a higher source than man. for example drug addicts. to protect the citizen from what is offensive and injurious and provide safeguards against exploitation and corruption of others. known as ‘victimless crimes’. would this include embryos. using abortion as an example. official or economic dependence. It is called utilitarianism. It says that the law and morality should overlap. 2003). weak in body or mind. Another criticism. The supporters of natural law would say if the legal rules do not match with the moral rules then they should be ignored.’ The Committee suggested that prostitution and homosexual acts between legal age citizens in private should not be criminal offence anymore. Another theory on the relationship between law and morality was suggested by the lawyer Jeremy Bentham. anti-abortionists would certainly disagree that no harm is done to others. Therefore the person himself has a free will to do what they wish and there is no victim to make a complaint. only if their acts do not harm others. abortion and drug taking do to harm innocents. inexperienced or those in a state of physical. especially the vulnerable. The further discussion about the relationship between law and morality was brought by Professor Hart and Lord Devlin. is that people who get addicted to the drugs are not really counted as taking drugs on their own free will (Elliot and Quinn. However. discussions arise in defining other. 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 4 . that is young. does the harm have to be direct interference? An extension of Mill’s theory. The main criticism of Schur’s theory.

this free will allows individuals to experiment and learn. which the law had a responsibility to support because the society needs to have a common moral standard if they wanted to stay together. Lord Mustill 5 . 2009). this may harm them and it can affect their emotional nature (Yule. Darwent and Currer. which should be followed by the legislature. Firstly. found defendants guilty but there was a disagreement as well. Hart gave four reasons for not criminalising that which the ‘right-minded’ person objected to. Thirdly. who could be pointed as ‘the man in jury box’ and this way they could judge the immorality. on the other hand. disagreed with Hart’s theory and he felt that society had a certain moral standard. society should have higher standards (Elliott and Quinn. Devlin also added that there was a set of basic principles. it is not correct to punish someone if they do not harm anyone. Hart objected to Devlin’s view about ‘right-minded’ people. House of Lords states that this behaviour was a breach of criminal law and they could not claim the defence. free will is moral and it is wrong to interfere. This is the point that Hart strongly disagreed with. and be unacceptable – because an individual’s freedom would be limited. Secondly. Fourthly. Devlin said that the morality should be based on the views of the ‘right-minded’ person. 2003). Some of them were successful and some not. fear and misunderstanding. they usually respond on what are society’s standard moral rules. 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. Devlin. For example. Secondly. the law should establish a minimum standard of morality. He questioned what the ‘rightminded’ person was? When people judge about other people’s unusual behaviour. A 3-2 majority. ignorance. if legislation interferes in individual’s sexuality and their private lives.Toma Beleckaite disintegrate. undesirable – because it would freeze morality. Thirdly. punishment should be given to those who create disgust between ‘right-minded’ people. R v Brown (1993) case where defendants willingly injured themselves in various sado-masochistic acts. This view is focused on individuals and law should only intervene if there is a risk of harm to others (O’Riordan. Despite all that. 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. Objections to another morality were more often due to prejudice. First. 2001). There are some cases where law reflected morality. people should be allowed as much freedom as possible with the integrity of society and the privacy should be respected. However.

and Currer J. 2001. Therefore Mrs Gillick lost the case. Darwent P. Whether or not law should relate with morals of society is still debated because every individual has different views. Essex: Pearson Education Limited O‘Riordan J.Toma Beleckaite 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. Oxford: Heinemann Educational Publishers Martin J. Law for AQA. 2004. 1999. A different decision was made in R v Wilson (1996). There are various theories on how law and morality should relate to each other. A2 Law for AQA. It was argued. However. 2001). This shows that the public and their moral views still influence the law. 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. there is a close relationship between law and morals. London: Hodder & Stoughton Bibliography: 6 . 2004). 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. However.. In R v Gillick (1986). And Turner C. Conversely. 2009. as well as impossible. where the defendant was asked by his wife to brand his initials on his wife’s buttocks. as the law does uphold moral values in some cases. AQA Law for A2. As espoused by Hart. Word Count: 2479 References: • • • • • Brown W. in this case there is no wrong or right because there are opposite moral views (Elliott and Quinn. 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. 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. GCSE Law Seventh Edition. Oxfordshire: Hachette UK Company Elliott C. and Quinn F. Law. 2003. law and morality should be separate. J. London: Sweet & Maxwell Ltd Yule I.

The Enforcement Of Morals. 1957.Toma Beleckaite • • Hart H. Liberty and Morality. L. London: Oxford University Press 7 . 1959. London: Oxford University Press Devlin. Law. P. A.

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