Consider the view that there is a close relationship between law and morality. Examine the debate as to whether the law should reflect moral values, and discuss issues, which show the continuing importance of that debate. (30marks + 5 for AO3) A definition of law adapted from LB Curzon, Dictionary of Law states “ the law is a set of rules which are binding among the people of a community or a state, so that they will be imposed upon and enforced among those persons by appropriate sanctions”.
The definition of morals given by Elliott and Quinn, Law for AQA state that “morals are beliefs and values which are shared by society, or a section of society; they tell those who share them what is right or wrong”. There are many similarities and differences between law and morality. The similarities being: both are prescriptive and state what should and shouldn’t be done, both have sanctions in place if not followed, and both put pressure on individuals to adhere to them. However they are different in certain aspects: the source of each is different.
Laws are made in parliament, whereas morals are shaped by many different factors. Individuals are able to choose their morals but the law binds everybody. There are some circumstances where there is overlap between law and morals. An example includes prostitution, and religion. Lord Atikin’s neighbor principle is strong way to highlight this overlap. The majority of both laws and morals are based on the dominant religion of Christianity. The neighbor principle is to “avoid any act or omission that affects your neighbor.
Your neighbor being anyone who is affected by your act or omission” This supports the idea of “Love thy neighbor” from the Bible. However there is not always a connection between law and morality, for example not all strict liability offences need a moralistic view: this being parking on a double yellow line. This can be seen as a rule that everyone must follow, that doesn’t lead to different beliefs or theories, as it is simplistic. Durkheim, a French sociologist highlighted the fact that in a modern developed society it is difficult to pinpoint a set of moral values shared by everyone.
He suggested that is smaller society areas, it is easier for people to share a moral code, however unlike a advanced society like ours it is unlikely for everyone to have the same morals as so many people are different within status, ethnicity, background and religious status. Law is decisive, a rule will tell us whether someone is legal or illegal, but in increasing numbers of areas individual morality is not necessarily reflected in what the law says. There are various theories on what the relationship of law and morals should be.
The first theory is natural law, adopted by St Thomas Aquinas. This states that there is a higher law to which law must conform. He believed human law did not match divine law; it should not be awarded the status of law at all. Aquinas saw it as coming from God, while Aristotle believed it came from nature. Another theory refined by John Stuart Mill is utilitarianism, which proposed that the moral action was the one that produced well for the many, even if it was at the expense of the one.
Mill’s refinement of the idea argues that whilst this idea is true, the individual should not have to follow society’s morals, and should be free to act as they wish, provided their acts do not harm others. Professor Hart, a legal positivist, believes there is no necessary relationship between the legal system and the ideas of morality or justice; a legal system can function effectively even though it is neither moral nor just. He presents the example of Nazi Germany, however this can be criticized as it would of followed Hitler’s morals and his ideology of ‘blood and soil’ and Aryan race.
The Hart/Devlin Debate followed the publication of the Wolfendon report in 1957. The committee behind the report contained Lord Devlin, a prominent judge, and the academic Professor Hart. The report recommended the legalization of prostitution and homosexuality ‘should not intervene in the private lives of citizens or seek to enforce any particular pattern of behavior further than necessary’ to protect others. Prostitution is the act or practice of providing sexual services to another person in return for payment.
In the United Kingdom, prostitution itself is not a crime, but soliciting in a public place, kerb crawling, owning or managing a brothel, pimping and pandering, are crimes. In England and Wales and in Northern Ireland it is an offence to pay for sex with a prostitute who has been “subjected to force” and this is a strict liability offence and clients can be prosecuted even if they didn’t know the prostitute was forced. It is illegal to buy sex from a person younger than 18, although the age of consent for non-commercial sex is 16.
Section 53A of the Sexual Offences Act 2003 creates the offence of “paying for sexual services of a prostitute subjected to force etc. “, which is a strict liability offence. This section was inserted on 1 April 2010 by section 14 of the Policing and Crime Act 2009. It is an offence for a person persistently to loiter or solicit in a street or public place for the purpose of prostitution. This offence is created by section 1(1) of the Street Offences Act 1959 as amended by section 16 of the Policing and Crime Act 2009.
It prohibits street prostitution. The term “prostitute” is defined for the purposes of sections 48 to 50 and 52 and 53 of the Sexual Offences Act 2003, and for the purposes of section 33A of the Sexual Offences Act 1956, by Section51(2) of the Sexual Offences Act 2003, as a someone who has offered or provided sexual services to another person in return for any financial arrangement on at least one occasion. Working as a prostitute in private is not an offence, and neither is working as an outcall escort.
Hart, who was influenced by the theories of Mill, supported the report’s approach, stating that legal enforcement of a moral code was unnecessary and morally unacceptable, as it interferes with individual liberty. Devlin, on the other hand, was strongly opposed to the report, on what might be cited as a natural law approach. He felt that society had a certain moral standard, which the law had a duty to support, as society would disintegrate without a common morality.
The Wolfendon Report supported Professor Hart’s view that law and morality should be separate, however, various cases decided since the report show that judges are imposing their moral views in their judgments, such as in the case of R v Brown (1994), the defendants had willingly consented to sado-masochistic practices, and none of them had complained to the police. Nevertheless, they were prosecuted, and convictions were upheld based on public policy to defend the morality of society.
The law is therefore seen to attempt to uphold what it considers to be public morality, even if some may dispute the correctness of that moral code. This is a contrast to the case of R v Wilson, the defendant branded his initials on his wife’s buttocks with a hot knife at her request. The scars led to him being charged with ABH S47. The Court of Appeal held his conduct amounted to “tattooing” therefore is was not unlawful and that it was not in the public interest to impose a criminal sanction, still showing that the public and their moral views still influence our law.
The court also pointed out that the husband did not have any aggressive intent, and for those reasons consent was allowed as a defense. In the case of Slingsby, defendant and victim had taken part in sexual activity, which was described, as ‘vigorous’ but received consent. The victim died from blood poisoning caused by cuts. The victims consent meant that there was no battery or other form of assault and so the defendant was held not guilty if manslaughter as there was no unlawful act. This supports Professor Hearts beliefs and the theory of positivism.
The differing approaches in these cases clearly show that judges are letting their own moral values affect their judgments. The courts often find themselves at the center of hugely difficult moral decisions involving life and death. They are often forced to decide between individual rights and moral codes. The following cases illustrate some of their approaches: A mercy killing is the killing of a patient suffering from an incurable and painful disease, typically by the administration of large doses of drugs. An example of when a mercy killing was attempted is in the case Frances Inglis.
Where she attempted a mercy killing on her son but failed. She later injected her son with enough heroin to kill him and was convicted of attempted murder and murder. Assisted suicide is a common term for actions by which an individual helps another person bring their own death. Assistance may mean providing one with drugs or equipment to end their own life. The suicide Act 1961 states that suicide is no longer a criminal offence, The Criminal Attempts Act 1981 makes it an offence to help another person to die.
It differs to euthanasia where another person ends the life. In 2003 Lord Joffe proposed the “Assisted Dying for the Terminally Ill Bill’ which would legalize a physician. This would enable doctors the right to prescribe drugs that a terminally ill patient in severe pain could use to end their own life. It would enable a physician to undertake both assisted suicide and euthanasia. Lord Joffe presented this Bill three times, and all have been unsuccessful. This is because Parliament does not support assisted dying or euthanasia, as it is immoral and illegal.
Diane Pretty contracted motor neuron disease and was confined to a wheel chair. She required no treatment to keep her alive, but had great difficulty talking, eating and sleeping. She was concerned that her husband would be convicted of a serious criminal offence if he helped to end her life and sought the permission of the court for active euthanasia. The courts reluctantly refused her request. This relates to euthanasia, which is both morally and legally wrong, reinforcing the idea that certain views in society share the same moral and legal opinion.
Debbie Purdy a multiple sclerosis sufferer was fighting to protect her husband, as she wanted him to accompany her to a clinic in Switzerland that specializes in euthanasia. She had argued that the law was unclear and uncertainty surrounding the issue breached her human rights. The Director of Public Prosecutions Keir Starmer, provided mitigating and aggravating factors as to whether someone should be prosecuted for the assisting the suicide of another.
Starmer stated that relatives who help terminally ill person to die are not covered by these guidelines and so could be charged with murder or attempted manslaughter. Some mitigating factors are: the suspect was wholly motivated by compassion and the victim had reached a voluntary, clear, settled and informed decision to commit suicide. Aggravating factors are: if the person is under 18, not clearly communicated their decisions, pressurized, and did not have the capacity to reach a decision. When the guidelines on assisted suicide were published and Debbie Purdy stated they had “give me my life back”.
Unlike the Pretty case, Debbie Purdy only wanted the law clarified for her, where as Diane Pretty wanted her husband to be allowed to help kill her. The most current case concerning assisted suicide and euthanasia is the 2012 Tony Nicklinson case. Tony was left paralyzed and with locked-in syndrome by a stroke seven years ago the 58-year-old wants a doctor to be able to lawfully end his life, however this would be considered as murder. Three Judges recently heard his case at the Royal Court of Justice, and a decision is still awaited.
Tony refers to his house as a prison, and can only communicate through the movement of his eyes onto a computer. His wife is his full time carer, and it can be questioned who will care for Tony if she no longer can. If Tony’s case is refused his only other option is to starve neither himself, which will not be pain free nor a dignified way to die. Tony is trying to set a legal precedent, which will have to be followed with many more to make this legal. He is not trying to make any killing legal; it is just for people in similar circumstances to his own.
Many people such as Lord Falcaner does not support Tony’s case and believes it needs safe guards. The doctor who originally saved Tony believes it is unfair for him to live in such conditions. In conclusion, there is a close relationship between law and morals, as the law does uphold moral values in some cases, though the extent to which law should be influenced by morality remains topical. However the law does not uphold the moral views of society in connection with euthanasia or assisted suicide.