There is a connection between law and morality. Law represents codes of compulsory social conduct, which is applied by the state in the administration of justice. Morality is based on beliefs as to what is right and wrong. The culturally relative nature of moral values mean what is regarded as immoral in one society may not be so in another society. However, within any given society, individuals' conduct is influenced by hegemonic moral values, which set standards of behaviour for that society. Eventually these standards become part of the law. Many of these standards are derived from religious values.
The English legal system is based on Christianity, for example, the tort of negligence is built around the biblical principle of 'love thy neighbour'. As Lord Atkin in Donoghue v Stevenson held that those who harm others should compensate for the damage done. While there may be a great deal of similarity between law and moral, the two do not coincide entirely as not all sins are crimes such as adultery. Morality changes over time. The same is true for law but legal changes tend to lag behind moral ones. For example, In R v R 1991 rape within marriage was criminalized.
The House of Lords stated that marriages were now seen as equal partnerships, in which the husband could no longer enforce rights to sex, therefore the change in this area of law was necessary. This shift in attitude had taken place long before 1991 but the legal change lagged behind. Morals are enforced by informal sanctions e. g. being isolated by family members, whereas laws are enforced formally by the legal system. Prior to world war 2, Britain was made up of white Christians with rigid class and gender divisions, as a result there was consensus on morality therefore linking law and morality was not a problem.
Following World War 2, Britain is becoming more multi-cultural and the process of secularization is taking place. Class and gender barriers are breaking down. Although people might still agree on some basic points such as it is wrong to kill, there is much less consensus on some issues such as whether it is wrong to have abortions. Therefore, it is debatable whether law should reflect moral values. In Gillick, the House of Lord decided that girls under sixteen had the right to consent to contraceptive treatment, provided they were sufficiently mature and intelligent to understand the nature of the proposed treatment.
This decision caused controversy, as some believed by giving under-age girls contraception was encouraging them to have sexual intercourse. However, many others argued that by preventing doctors from giving contraceptive advice would increase the chances of unwanted pregnancies. Problems arise when deciding which group's moral opinions should be adopted by the law, as people hold different views towards this particular issue. In the late 1950s there was public concern about a decline in sexual morality.
The Wolfenden committee was established to consider whether certain sexual offences should be legalized, in particular male homosexuality and prostitution. Two of the main members of the committee, professor Hart and Lord Devlin became the champion of each side of the debate. Hart put forward the argument that using law to enforce moral values was unnecessary, undesirable and morally unacceptable, because society would not disintegrate if such law ceased to exist. Also morality develops and changes over time, linking it to law would freeze morality at a particular point.
Additionally, it would infringe the freedom of individuals. Judicial support for Hart's views can be evident in the decriminalization of suicide, abortion and homosexuality. Hart was influenced by the writing of John Stuart Mill who argued that humans should be free to behave in the way that they want, as long as it did not harm others. However, it is questionable as to who counts as another, for example, does harming an unborn child by having an abortion count as harming another person? Lord Devlin was a law lord and was influenced by the natural law theory, which suggested that law should reflect morality.
According to Devlin, in order to keep society stable, it was important to have some form of common morality with basic agreement on good and evil. Common morality underpinned society and the law had a duty to uphold that common morality. If there was no complete consensus on an issue, the majority view should prevail. The Wolfenden report came down on the Hart side and held that the law was created to protect people from harm, but it is their choice if they choose to harm themselves, provided they are capable of making such choice, for example, male homosexuality between consenting adults in private was decriminalized.
However, Devlin's paternalistic views were applied in cases such as Gibson, Brown and Wilson. In R v Gibson, an artist exhibited earrings made from freeze-dried foetuses and was guilty of the offence of outraging public decency. In this case, the artist's conduct did not harm others but was immoral and public policy demanded such act be treated as a criminal offence. The case of R v Brown concerned a group of homosexual men who had willingly participated in the commission of acts of sado-masochistic violence against each other. Since they had consented and the activities took part in private, the law had no reason to intervene.
However, the HOL held that the practice of sado-masochism was immoral, as Lord Templeman said 'cruelty is uncivilized', therefore law should forbid such behaviour. In R v Wilson, a wife instigated her husband to burn his initials into her buttocks with a hot knife. Even though the issues of harm and consent made this case indistinguishable from Brown, the court refused to convict the defendant on the grounds that the branding was no different to having a tattoo and 'consensual activity between husband and wife was not a proper matter for criminal investigation'. Clearly, law was used to enforce moral values in these cases.
The case of R v Dudley and Stephens illustrates how law reflected moral belief of the sanctity of life. In R v Dudley and Stephens, two ship wrecked sailors killed and ate a cabin boy in order to save their own lives. They were charged with murder and failed to use the defence of necessity. The court held that all human lives were equally valuable. By allowing the defendants to use necessity as a defence would mean that the court perceive their lives as more valuable than that of the victim. In Leslie Burke, the patient suffered from an illness and would eventually be unable to communicate.
Any withdrawal of treatment would result in death, which he would be fully aware of, but would have no control over. Therefore, he sought a court order stating that the Human Right Act gave a right to life. The court decided he had the right to medical support until his natural death occurred, as it would be morally wrong to shorten life. Again, the legal decision in this case reflects the moral belief of the sanctity of life. According to Christianity, life was a divine gift from God so it was morally wrong for an individual to take his or her own life.
Suicide has now ceased to be a crime under the Suicide Act 1961. However, assisting someone else to commit suicide can constitute an offence. For example, In Diana Pretty, the patient was incapable of committing suicide due to her illness. She therefore sought a court order that would ensure her husband would not be prosecuted if he assisted in her suicide. The court refused as active assistance was unlawful and it would set a precedent for lawful assistance suicide. In Airedale NHS Trust v Bland, the court distinguished between active and passive assistance.
Bland was in a permanent vegetative state. The doctors sought legal permission to withdraw him from life maintaining food. The court decided passive assistance was equivalent to an omission therefore it would be lawful for the doctors involved in this case to switch off Bland's life support machine. In Miss B, the patient was being kept alive on a life support machine. She sought a court order to withdraw from medical treatment. The court decided as an adult she had full capacity to understand the consequence of her decision, therefore she was allowed to do so.
The legal decision in this case seems to be based on Hart's argument that individuals are free to choose to harm themselves, as long as they are capable of making such choice. Judicial support for Hart's views can be seen in Reginald Crewe. The patient was terminally ill and was incapable of committing suicide so his wife arranged him to Switzerland where assisted suicide was lawful. The Court decided not to prosecute Mrs Crewe. This decision seems to imply that to a certain extent individuals should have freedom to make choices. The case of Re A concerned a pair of conjoined twins.
There was evidence that the weaker twin was only alive because a common artery enabled the stronger twins to circulate oxygenated blood for both. Unless separation took place both would die within six months. If they were successfully separated, the death of the weaker twin would be unavoidable. The judges decided to save the life of the stronger twin and permitted the operation. Lord Justice Brooke avoided creating a precedent for assisted suicide by arguing that the doctors was using force to protect the stronger twin, therefore the defence of necessity would prevail.
It cannot be denied that the connection between law and morality is important, because human behaviour is influenced and regulated by dominant moral values. When society loses consensus, there is a danger of disintegration therefore it is essential that law upholds common moral views. However, in a developed and pluralistic society where people differ in social and ethnic background, it is difficult to pinpoint a set of moral values shared by all, therefore using law to reflect moral values is bound to create problems.