Criminal Law and morality

"Criminal Law and morality are inherently connected. It would not be possible to separate the two even if this were thought to be a good idea in principle. " Before approaching the argument as to whether or not criminal law and morality are inherently connected, I believe that it is essential for us to understand the two terms clearly. Criminal law is by definition a set of rules, which embody community values of what is wrong and harmful. Ideally it seeks to protect society and individual's rights although it must me said that in a situation wherein there is a clash between the two the former is often given more preference than the latter.

Morality is basically a set of principles concerning the distinction between right and wrong or good and bad behavior. If we assume that a crime is an immoral act one can easily conclude that criminal rules and moral rules are one and the same. But the crucial question that we are posed with is this: Are all crimes immoral? I for one believe that there are some immoral acts, which are not crimes and vice versa. I will discuss this aspect as I proceed with the remainder of my essay.

A brief look at the origin of the law or the application of the law in ancient times will makes its inherent connection with morality very evident. In ancient times, morality and religion were synonymous. Both the lawmakers and the laws they dictated were considered to be divinely inspired. Hebraic law for instance supported the equation of law and morality. But over the years that followed the possibility of laws that were legal and immoral was gradually accepted. The Greeks introduced the view that rationality was to be preferred to moral mysticism.

Today most of our laws are based on rationality although it would be wrong on our part to conclude that there is no continued linkage between the concepts of law and morality. H. LA Hart opined, "Criminal law still contains rules which can be attempts to enforce morality as such and involve nothing to be thought of as a harm to other persons1. "For a long time there were several laws against homosexual behavior between males and also laws against prostitution. There is no doubting the fact that these laws can only be justified on moral grounds.

Although several of these laws have been abolished or amended it would be wrong on our part to conclude that there is a clear distinction between moral rules and legal rules in the society that we live in today. Laws preventing people from living on the earnings of prostitution is an example to prove my point. Thus while answering the question regarding the inherent connection between law and morality, I am convinced that there is a definite linkage between the two. Saying this I ought to mention that this connection is much weaker than what it was several years ago.

This brings us on to the second aspect of the title, which is the question as to whether or not a separation between law and morality is possible. I intend on approaching this question with a realist perspective although I wish that I could be more optimistic about the possibility of the separation of the two concepts i. e. law and morality I wish to make it very clear at the outset of my argument that it is a firm belief of mine that a complete separation of the law from morality is not possible. The case of R v Brown (1994)2 substantiates my point.

All those involved in the case were adults and had fully consented to the acts done to them and none sustained sufficiently serious injuries to need medical attention. But yet, the House of Lords decided by a majority of 3-2 that the men's conduct was criminal. I for one believe that the decision was completely based on moral grounds. If we care to look into the facts of that case you will find the reasoning behind my argument. The acts were carried out entirely in private, and none of the "victims" had made any complaint, the activities having come to the attention of the police by accident during another investigation.

Lord Mustill, dissenting, said the question was not whether the men's conduct was morally right – most people would say not – but whether it was criminal, and he would not distort the meaning of the relevant statute to make it so. I am in agreement with this learned judge but it is a true fact that the separation of law from morality is far from easy. Some moral rules have even been given effect by statute. The moral censure of those who deal in pornography is given legal effect by the Obscene Publications Act 1959.

Nearly all-western countries prohibit the practice of euthanasia; thereby giving effect to the moral rule that deliberately killing another human being is wrong even when that other has consented to the killing. One cannot deny that there have been several attempts to differentiate between moral and legal principles. The case of Nestleship v Weston3 is a classic example although no moral blame is to be attached to a person who is doing his or her best he or she may still be liable for the consequences caused by lack of experience or skill. This separation has also been extended on a much larger scale.

In April 2001 the Netherlands broke new legal ground by making a law making euthanasia lawful under certain circumstances. The Abortion Act of 1967 legalized abortion that was previously a criminal offence, under certain circumstances. Thus while I do admit that there have been efforts to separate moral and legal principles, total separation of the two seems to me to be a distant dream. This then brings us to the third aspect of the topic, which is the debate as to whether or not this idea of separation of legal and moral rules that we have been discussing is a good one in principle.

There have been several debates regarding this topic, the most popular one being the Hart-Devlin debates. Lord Devlin's arguments were set out in full in the 'enforcement of morals' published in 1959. He believed that society has a right to punish any act that offends against its shared morality and believed law was a weapon with which such morality could be preserved. In the words of Lord Devlin " The suppression of vice is as much law's business as the suppression of subversive activities4".

According to him immorality is what every right-minded person is presumed to consider immoral. The circular nature of this definition and its use of words such as "reasonable" or "right minded" make it less than helpful in practice. The trouble with such reasoning is that it would allow the majority in any society to impose its moral views on the minority or make it quite acceptable for certain Arab countries to make radical laws such as imprisonment for the possession of alcohol and death for adultery. There are sign's, however of this being applied in English Law too.

It is worth remembering that in R v Feely5 and other cases it has been held that juries in theft cases "dishonesty" by reference to their own moral standards. I beg to differ from such a principle, as I believe that moral standards vary from person to person and that it would be wrong on our part to assume that a society shares common morals and values. H. L. A Hart, in his book 'Law, liberty and morality' challenged Devlin's views. Hart reiterated Mill's "harm principle" and said that the law should intervene only to prevent harm.

In defining "harm", however, he went beyond mere physical ham to include shock or offence caused by public spectacle, distinguishing this from distress caused by mere knowledge. On this basis the law can legitimately prohibit the display of pornographic material in the shop while allowing its sale behind close doors. As a student of law, given my limited knowledge of legal philosophies I tend to favor Hart's ideology. In my opinion Devlin has failed to take into account the possibility of plural moralities within societies. A classic example would be the LTTE in Sri Lanka.

Certain sections of the Sri Lankan society view them as terrorists. Yet one has to admit that there is a large group of Sri Lankans who praise them as freedom fighters. There is no clear agreement as to whether or not their actions are moral. Thus I firmly believe that always using morality as a basis to decide what is and what is not legal is not necessarily the right methodology to adopt. There is this growing need to have a clear distinction between the two. But, sadly, I don't see this need being addressed any time soon for separating the two concepts would be equivalent to attacking the law at it's very roots.