LAW AND MORALITY

CONTENT
● DEFINITION OF MORALITY
● RELATIONSHIP OF LAW AND MORALITY
● LIBERTARIAN & ANTI-LIBERTARIAN APPROACH
● ENFORCEMENT OF MORALITY
● VICTIMLESS CRIMES
● MORALITY IN ISLAM
DEFINITION OF MORALITY
MORALITY is normally associated with:-

● A standard of behaviour which is acceptable

by the society.
● Good conduct and ethics (manner, character,
proper behaviour).
● The quality of being right or wrong.
● A code of values, principles and standard of
bahaviour, some version of which is found in
all social groups.
 If an act is good = it is a moral act
If an act is bad/evil = it is an immoral act
But some would say that morality itself is
subjective hence it varies from one society
to another.
 Society Self

MORALITY
Religion
Law
Culture
 RELATIONSHIP BETWEEN LAW AND MORALITY

LAW MORAL
LAW=MORAL

ANALYTICAL POSITIVISM

NATURAL LAW

LAW MORAL MORAL

LAW

REALISM

ISLAMIC LAW / SHARIAH


NATURAL LAW SCHOOL
● religion, ethics, morality are
intertwined.
● founded on idea of fairness.
● law and religion are largely
undifferentiated.
● law is an expression of the
society’s morality.
● immoral laws are not to be
obeyed.
● ‘inner morality of law’ –
Prof. Fuller
8 PROCEDURAL REQUIREMENTS FOR
LAW’S INNER MORALITY – PROF.
FULLER
● Generality
● Promulgation
● Non-contradiction
● Clarity
● Non-retroactivity
● Constancy
● Possibility of compliance
● Congruence between
declared rule and official
action
 ANALYTICAL POSITIVISM PRAGMATIC POSITIVISM /
REALISM
● law is separated from moral and
justice. ● law and morals intersect but not
● law based on the power of a identical.
superior/sovereign.
● law is determined by social facts.
● laws must be obeyed under
threat of sanction. ● reliance on judicial behaviorism.
● the science of jurisprudence is
concerned with positive law-law ● written laws are mere guidance.
as it is posited.
● prediction of the final decision as
● all positive laws are derived from
a determinable law.
lawgiver/sovereign.
 ISLAMIC LAW / SHARIAH

-a religion of morals.

-aims for truth and virtue.

-relationship between man-man and man and his Creator.

-seeks the pleasure of Allah.

-morality overlays the law.

-rewards obedience.
Sometimes in positive law, law is used to
regulate types of conduct which have no moral
element.

● Paying taxes
● Wearing student matric card
● Buckling up the seat-belt
● Minor traffic offences
● Compulsory vaccination
● Wearing of masks in public places
Sometimes there are certain immoral
acts that are deemed as lawful.

● Drinking alcohol
● Drug taking
● Gambling
● Smoking
● Prostitution
There are also certain immoral acts that are deemed
as unlawful and can be punished under the law.

● Murder
● Rape
● Theft
● Negligence
● Breach of trust
● Trespass
ENFORCEMENT OF MORALITY
QN: TO WHAT EXTENT CAN THE INSTRUMENT OF LAW BE USED TO ENFORCE MORALITY ?

It cannot be denied that there are circumstances

in which law cannot be separated from morals.
However, since the publication of the UK
‘Wolfenden Report’ (Report Of The Committee
On Homosexual Offenses And Prostitution) in
1957, enforcement of morality has been divided
into two realms –private morality and public
morality
PRIVATE & PUBLIC
MORALITY
 The Wolfenden Report 1957
In 1957, the publication of a report to Parliament, the Wolfenden
Report, which recommended the repeal of laws criminalizing private
homosexual conduct between consenting adults, sparked an intensely
debated controversy in political philosophy and jurisprudence.
The issue: is society justified in criminalizing behavior which, although
causing no secular harm, transgresses widely held moral values?
The principal proponent of morals legislation was Lord Patrick Devlin,
who responded to the Wolfenden recommendation with a paper
disputing the report's premises--that criminal law had no proper
business punishing private immorality.
Oxford Professor of Jurisprudence H.L.A. Hart, a philosophical
successor to the libertarianism of John Stuart Mill, vigorously opposed
Devlin's views.
In effect, the report suggests that what might be wrong in public
might be right in private and may be indulged in without the fear of
sanction.
Reaction towards the Wolfenden Report resulted in the
development of the following schools :

LIBERTARIANS
Libertarians argue that
while social-cohesiveness
must be protected, moral
pluralism does not
constitute a threat and the
law has no business in
interfering in matters of
private morality.
ANTI-LIBERTARIANS
Anti-libertarians argue
that the society can
override the matters of
private judgment where
they threaten its survival,
and homosexuality is
such a threat.
LIBERTARIAN SCHOOL
John Stuart Mill: The individual ought to be free to do as he wishes
unless he does harm to others.

In other words, the law has no right to interfere if an act is done

between two consenting adults in private until and unless it can be
proven that it does harm to others – referred to as the harm to others
principle.

The only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm
to others. His own good, either physical or moral, is not a sufficient
warrant. ( Mill 1859 , p. 223)

Mill wrote what is known as the 'harm principle' as an expression of

the idea that the right to self-determination is not unlimited. An
action which results in doing harm to another is not only wrong, but
wrong enough that the state can intervene to prevent that harm from
occurring.
The Wolfenden Report said that the purpose of the law is to preserve decency
and protect people and not to interfere in private lives.
FEATURES OF THE LIBERTARIAN SCHOOL
● Rooted in legal positivism.
● Law is generally not concerned with morality.
● Refrains from attaching legal consequences to
certain types of immorality e.g., sexual activity or
drunkenness in private between consenting adults.
● Oppression will result if majority opinion is imposed
on the minority.
● The only purpose law could be rightfully exercised
over any member of a civilized community against
his will is to prevent harm to others.
● Sexual morality should be left alone-
“the individual is sovereign”.
 CASE STUDY: R V BROWN (1994)
A group of homosexuals, who took part in sadomasochistic
activities, were found guilty due to the OAPA c.100 section 20
and section 47, after attempting to use consent as a partial
defence.
Section 20 states that “Whosoever shall unlawfully and
maliciously wound or inflict any grievous bodily harm (GBH)
upon any other person, either with or without any weapon or
instrument, shall be guilty of a misdemeanour, and being
convicted thereof shall be liable”.
The defendants stated that the ‘victims’ gave their consent,
therefore, appealed the charges, however, the court of appeal
denied this due to s.20, and the inability to consent to GBH,
and on the ground that prosecution was not required to prove
consent.
ANTI-LIBERTARIAN SCHOOL
Lord Patrick Devlin: British jurist who disagreed with Mill's harm
principle. Instead, he favored society's right to restrict even activities
between consenting adults.

Devlin said that society may use the law to preserve morality in the
same way that it uses the law to safeguard anything that is essential to
its existence. He envisages morality in an objective fashion seeing it as
a common morality shared by all in society.

A society's existence depends on the maintenance of shared political

and moral values. Violation of the shared morality loosens one of the
bonds that hold a society together, and thereby threatens it with
disintegration – referred to as the harm to society principle.
Without a commonly enforced morality, society will fall apart.
Critical to Devlin's thesis defending the enforcement of morality was
the presence of a strong and pervasive public demand for enforcement,
a demand generated by almost universal disgust and abhorrence, such
that the very idea of legal tolerance was itself intolerable.
FEATURES OF THE ANTI LIBERTARIAN SCHOOL
● Society does have the right to pass moral
judgements.
● Society brought together by “shared morality”.
● Morality is matter of public concern.
● Safeguarding of public morals is essential to its
(society’s) existence.
● Ultimate standards of right and wrong exists.
● Court as the guardian of morality.
● The judge to use the reasonable man test to gauge
public sentiment.
CASE STUDY : Pretty v United Kingdom 2346/02 [2002] ECHR
427 European Court of Human Rights
The applicant Diane Pretty, suffered from motor neurone disease (MND). This is a
disease of the motor cells in the central nervous system which causes the muscles to
weaken and waste away. This not only affects bodily movement, but also muscles
associated with speech, breathing and swallowing. There is no known treatment or
cure and those that suffer from it will generally die a slow and undignified death.
The applicant was at an advanced stage of MND. She was paralysed from the neck
down, she had great difficulty in speech and was fed through a tube. She was
concerned that she would suffer a slow and undignified death. She was not capable of
taking her own life.
She wrote to the Director of Public Prosecutions (DPP) seeking an immunity from
prosecution for her husband should he assist her to die. This was refused and she
brought an action in the High Court for judicial review of the decision of the DPP and a
right to the right to decide the time and circumstances of her death. The High court
found for the DPP as did the House of Lords on appeal. The applicant applied to the
European Court of Human Rights seeking to rely on Art 2, Art 3 and Art 8 of the
European Convention of Human Rights.
VICTIMLESS CRIMES
WHAT IS VICTIMLESS CRIME

“Victimless" crime is traditionally defined as "an illegal act that is consensual

and lacks a complaining participant."

A victimless crime is a term used to refer to actions that have been ruled
illegal but do not directly violate or threaten the rights of any other
individual.

It often involves consensual acts in which two or more persons agreed to

commit a wrong in which no other person/s are harmed.

Victimless crimes often provide goods and services (such gambling,

prostitution, and drugs) for which there is considerable demand. Organized
crime has been able to provide these desired commodities, and victimless
crimes serve to fund these groups.
FEATURES OF VICTIMLESS CRIME
● Acts that violate legal norms but do not involve
individuals as victims.
● Violations of law where there is no readily
identifiable victim.
● An act outlawed even though nobody involved is an
unwilling participant.
● No clear-cut victim except the offender / doer.
● Not popular in the west- where victimless crimes
are mostly decriminalized.
● Based on pre-emptive action-prevention is better
than cure.
Some examples of “victimless crime”:

● Suicide
● Homosexuality

● Prostitution

● Euthanasia

● Stealing electricity from TNB

MORALITY IN ISLAM
The Sources of Common Principles of Morality and
Ethics in Islam

● All nations have common principles in morality

and ethics. The source of these moral and
ethical attitudes can be traced back to three
main sources:
● Intuitive Reasoning (al-fitra) or the basic innate
constitution of all human beings;
● (b) Faculty of Reason (al-‘Aql): The ability to
reason and derive a decision by using one’s
mind. It is logical to derive that people of
wisdom acquire morality. Muslim philosophers
like Ibn Tufail believe that any normal human
being can recognize God, with his divinely
endowed nature and his reason;
● (c) Divine Revelation (al-wahy, Tanzil): Muslims
believe that God guides humanity by sending a
number of prophets and apostles, who are the
bearers of the revelation.
By no means shall ye attain righteousness unless ye give
(freely) of that which ye love; and whatever ye give, of a
truth God knoweth it well.
Qur'an 3:92
● The preservation of a social order depends on each and every
member of that society freely adhering to the same moral principles
and practices.
● Islam, founded on individual and collective morality and responsibility,
introduced a social revolution in the context in which it was first
revealed.
● Collective morality is expressed in the Qur'an in such terms as equality,
justice, fairness, brotherhood, mercy, compassion, solidarity, and
freedom of choice.
● Leaders are responsible for the application of these principles and are
accountable to God and man for their administration.
● It is reported that a man went to Umar, the second khalifa, to talk to
him. It was nighttime, and a candle burned on Umar's desk. Umar
asked the man if what he wanted to discuss was personal. The man
said that it was, and Umar extinguished the candle so as not burn
public funds for a private purpose. Leaders in Islam, whether heads of
state or heads of family or private enterprise, have a higher burden or
responsibility than others.
Morality and the individual
● The guiding principle for the behavior of a Muslim is what the Qur’an refers to as Al `Amal
Assalih or virtuous deeds. This term covers all deeds, not just the outward acts of worship.
● Some of the most primary character traits expected of a Muslim are piety, humility and a
profound sense of accountability to God. A Muslim is expected to be humble before God
and with other people. Islam also enjoins upon every Muslim to exercise control of their
passions and desires.
● Islam warns against vanity and excessive attachment to the ephemeral pleasures of this
world. While it is easy to allow the material world to fill our hearts, Islam calls upon human
beings to keep God in their hearts and to use the material world in moderation and in
accordance with God’s guidance. The Glorious Qur’an says:
● “The Day whereon neither wealth nor sons will avail, but only he (will prosper) that brings
to Allah a sound heart” [Al-Quran: 26:88-89]
● Charity is one of the most commendable acts in Islam. In fact, Zakah, the annual charity that
is obligatory on every Muslim who has accrued wealth above a certain level, is one of the
pillars of Islam.
● Gratitude in prosperity, patience in adversity, and the courage to uphold the truth, even
when inconvenient to oneself, are just some of the qualities that every Muslim is
encouraged to cultivate.

 
 Morality and Society
● For an individual as well as a society, morality is one of
the fundamental sources of strength, just as
immorality is one of the main causes of decline. While
respecting the rights of the individual within a broad
Islamic framework, Islam is also concerned with the
moral health of the society.
● Thus, everything that leads to the welfare of the
individual and the society is morally good in Islam, and
whatever is harmful is morally bad.
● Given its importance to a healthy and just society,
Islam supports morality and matters that lead to the
enhancement of morality and stands in the way of
corruption and matters that lead to the spreading of
corruption. The injunctions and prohibitions in Islam
are to be seen in this light.
 
Morality in Islam addresses every aspect of a Muslim’s life, from
greetings to international relations. It is universal in its scope and in
its applicability.
A Muslim is expected to not only be virtuous, but to also enjoin virtue.
He/She must not only refrain from evil and vice but must also actively
engage in asking people to eschew them. In other words, they must
not only be morally healthy, but must also contribute to the moral
health of society as a whole.
The Prophet Mohammed (peace be upon him) summarized the
conduct of a Muslim when he said:
“My Sustainer has given me nine commands: to remain conscious of
God, whether in private or in public; to speak justly, whether angry or
pleased; to show moderation both when poor and when rich, to
reunite friendship with those who have broken off with me; to give to
him who refuses me; that my silence should be occupied with
thought; that my looking should be an admonition; and that I should
command what is right.”
FEATURES OF MORALITY IN ISLAM
● Based on Divine Revelation.
● Moral consciousness for preservation of society.
● Moral laws are not created by man - he only
recognizes it.
● Found in the Qur’an and comprehensive.
● Transcends time and space.
● Morality as a way for perfection of the Iman.
● Good behaviour is rewarded with paradise.
● Guidance of man’s internal and external behavior.
● Laws from cradle to grave.