Definitions of law and morality have engaged the minds of great thinkers for centuries. Due to the subjective nature of this area, and to suit the differing contexts, a variety of definitions have been provided. In this particular context, however, law can be said to be a system of rules existing to regulate human conduct. It is imposed by those with recognized authority. Generally, the breach of these rules results in a penalty. There are also rules that facilitate actions, such as the making of contracts.
Morality exists in a more abstract form. While legal rules no doubt exist, the term 'moral rules' may be misleading, as it suggests that it can be presented in a definite and clear-cut manner. Ideas of morality are concerned with the conduct of humans in a society. It tells us what is good and bad, what is right and wrong. Parental influence and religious education play important roles in this area. It is difficult to find one society which has people that agree with all the moral values that exist in that society.
Even the most homogenous society would prove to be able to generate 'moral rebels'. Professor Hart was of the opinion that there is no connection between law and morality. According to him, the question of what is legal and what is moral must and can be distinguished from each other. He criticised the approach taken by the post-war Nazi courts that did not recognize Nazi rules as law and the Nazi system as legal. If he was in their position, he would recognize Nazi rules as law, but then pass an Act stating that defences that are based on Nazi laws would be invalid.
Hence, Hart would rather resort to retrospective law-making rather than uphold ideas of morality in law. John Stuart Mill advocated the 'harm principle'. This principle is based on the idea that nobody should be restrained to do an act, as long as he does not hurt or harm anyone. If a person chooses to hurt himself and no one else, for example by taking drugs, he should not be prevented from doing so. This is because he has a right to do whatever he wants, whether or not it is immoral.
Mill has said, "The law should not be used to protect a particular morality, but rather to prevent harm to others. " However, Mill defined harm as physical harm. He did not take into account psychological or emotional harm. Even though overlooked in his principle, in reality, people can be deeply harmed by other people's actions, be it physically or mentally. Hence his principle cannot be said to be practical. Other than that, Mill suggests that whatever is done to himself can be neatly severed from what affects others. In reality, this is not so.
For example, one who regularly rents pornographic videos may be saying that he is exercising his personal right and is not affecting or harming others through his acts, but in actual fact, the money he spent fuels the pornographic industry and encourages its existence. Patrick Devlin advocated the moderate view. To him, every society has a 'shared morality'. A society needs it to function. Without this element, society will disintegrate. Hence, every society would have a collective idea of morality and the members are obliged to follow them.
This would of course result in personal sacrifices where the members are concerned, but according to him, that is the price of being a part of the society. This shared morality is determined through the objective test. Hence, what is moral or immoral is decided by the standards of the reasonable man. However, Devlin did recognized that individual privacy should be respected, but even private acts of vice can make that person a less useful member of society, and hence should be stopped if it goes to far. Devlin's ideas have attracted many criticisms, particularly from Hart.
His arguments were indeed vulnerable to such criticisms, for example, he argued that by using the reasonable man test, abortion is immoral, which makes those who disagreed with this, are not right-minded individuals. Hart has said that what people have believed or accept should not be equated with correct standards of morality. Justice Stephen J, the advocate of the strict view, was of the opinion that all grosser forms of vice should be punished per se. Generally, if most people were not able to accept an act, it should be illegal. That is to say, acts that are extremely immoral should be illegal.
Hence, in his view, there is a connection with law and morality. The decision in R v Brown, where people involved in sado-masochistic acts were convicted of the offence even though they expressively consented to it, reflected his point, because the society at large was not able to accept what they were doing. Therefore, if his views were implemented, the majority would always win, even if the minority is right. Lon Fuller has argued that law and morality cannot be neatly severed, in effect saying that there is a strong connection between law and morality.
On the Nazi issue discussed earlier, Fuller's opinion would be contrary to Hart's, as Fuller agreed to what the courts did. He was effectively saying that immoral law is no law at all. To him, law has to incorporate what he calls 'inner morality'. He lists a few requirements to fulfill this idea, for example, the law can not be retrospective or contradictory. Hence, the Nazi laws which did not have any 'inner morality' are not law at all. However, a glaring inadequacy of this idea is that it is possible for rules to exist with 'inner morality' but yet is unfair or unjust as a whole.
For example, during the apartheid era in South Africa, the Caucasians suppressed the natives based on discrimination but their laws were not retrospective and contradictory, and fulfill other requirements of 'inner morality'. There is another school of thought, concerning 'natural law'. The advocates of this school of thought connect the law to a higher authority, which is God. Hence, laws that do not recognize these are no law at all. The English legal system as a whole prioritized this idea a few centuries ago, a stark contrast to the doctrine of Parliamentary Supremacy practiced today.
St Augustine has said, "What are states without justice, but robber bands enlarged? " Thomas Aquinas has said that the laws that conflicts with the requirements of natural law lose their power to bind morally. John Finnis developed a natural law theory that advances the basic human goods such as life. Therefore, if left to these people, R v Bland, where a patient suffering from persistent vegetative state was allowed to die, would probably be decide differently. As illustrated, there can indeed be a connection between law and morality.
The question of necessity of the law reflecting morality has been debated by scholars for a long time, as described above. It is submitted that there is a necessary connection between law and morality, but in each case, to a different degree. In deciding cases, it cannot be denied that judges take into account ideas of morality. Ministers of Parliament may do the same when legislating. Hence, from this perspective, there is a necessary connection, but the degree of reflection of ideas of morality varies from one particular case to another. As Dworkin has said, law and morality are inextricably mixed.