Law and Morals

Sir John Salmond referred to the law as being 'the body of principles recognised and applied by the state in the administration of justice'. Morals, on the other hand, refer to what a person, or community, believes to be right or wrong. This can be influenced by the law, but more often morality is affected by different factors for different people, and includes agents such as religion, the media, upbringing and peers. There are further differences between law and morals. Morality develops overtime while law can be introduced instantly.

This can be seen through views on homosexuality, where society now has a greater acceptance of such couples than perhaps even 20 years ago. Nowadays, the debate stands as to whether or not legislation should be introduced which allows gay couples to parent children. It is arguable though, that it is the change in moral values that prompt changes in the law. Also, as morals are voluntary codes of conduct, they may be difficult, if not impossible, to enforce in today's pluralist society.

Morals affecting the law are ageless. In 'The Changing Law', Lord Denning noted that the Christian faith influenced the evolution of common law. This was most famously seen through Lord Atkin's 'neighbour test', established in the case of Donoghue v Stevenson 1932. The moral (Christian) concept reflected society's views on the duty of care manufacturers owed consumers, which may not have been the case some years before that. Morals are still effective today, as seen in R v R 1991.

This reflected society's revulsion to rape within marriage. It was held that a husband could be convicted of rape where his wife had not given consent to sexual intercourse as there was no longer a rule stating that a wife consents to sexual intercourse with her husband simply because they are married. Although this would have been considered a morally right law to impose, it has been criticised for being slow to develop. This once again shows that laws can uphold morals, but it is more the morals that given way to new laws.

Salmond has illustrated the relationship between law and morals as intersecting circles. This also gives way to parts of the two circles being untouched by the other; they only overlap on point of agreement. For example, several areas of criminal law such as murder, theft and rape are both legally and morally wrong. This has led Michael Allen to argue that what criminal law considers as wrong is built on 'the fundamental values upon which a society is founded'. However, 'fundamental values' such as contraception and adultery have no basis in law.

This is likely to be because secular considerations have become influential on the law. Moreover, this can explain why in the case of Gillick 1986, a mother was unable to prevent her teenage daughter from receiving private medical advice and treatment concerning sexual matters and contraception, as she thought this was encouraging under age sex which she believed to be morally wrong due to her religious beliefs. It was held that if a teenage girl was of sufficient intelligence then advice and contraception could be given.

This shows that the law is not upholding the morals expressed by the mother in this case, but the point can be made that the law concerning sexual matters was introduced as a means to create sexual awareness, something that many may consider to be morally right. There are also legal issues, such as parking laws and building without permission, that do not give society as a whole moral concern, and this is also true of making and selling/buying pirate DVDs. These issues are the part of the 'circle of law' that is not strictly controlled by morality.

However, issues such as abortion, which was legalised in the Abortion Act 1967, play an integral part in legal and moral issues. While it can be argued that abortion is morally wrong, the legality of it could be viewed as merely reflecting attitudes at the time – that a woman should be allowed to exercise rights over her body. This is an example of the law upholding the moral values of a group in society; however those against it could argue that the law on abortion goes against moral beliefs. The law remains firmly against the refusal of a pregnant woman to take medication which will save her unborn child's life.

This was the case in R v Collins, ex parte S 1996, where the rights of the baby prevailed over the rights of the mother, who rejected medical advice given to her claiming she wanted her baby to be born naturally. This subsequently led to 'an infringement of the mother's autonomy' (The Times, May 1998), which anti-abortion groups would claim was the moral thing to do. The law's intervention in this case may have been it upholding moral values of society. Euthanasia is another subject where moral and legal views conflict. As it stands, it is against the law to assist somebody with their death even though this may be their wish.

This is the moral view that many hold, arguing that it is for God to take away lives, and that it is morally wrong to deliberately kill someone, even if they are terminally ill. Diane Pretty asked the courts for her husband to kill her without her death resulting in his prosecution. This was denied to her despite her wishes, as there were fears of the moral implications of this – unlawful killers may be able to get away with their offences, using euthanasia as their defence. Even though euthanasia is not legal, a lawful killing was granted to Miss B who was being kept alive by life-support equipment.

The courts argued that that Miss B, who was of sound mind, was merely refusing her medical treatment, a right that is granted to cancer patients undergoing chemotherapy. This was similar to the case of Bland 1993, where the House of Lords claimed it was in 'his best interests' to remove his life support system. However, if it was Tony Bland's parents who were able to convince the courts of this decision, as their son was in a permanent vegetative state and unable to communicate, supporters of euthanasia, such as Ludovic Kennedy could argue that Diane Pretty should have been granted the same right to die.

The case of R v Cox 1992 led Kennedy to call for the urgent reform of the law on euthanasia. He stated in The Spectator, September 1992, that 'the "natural end" of life is thwarted every day by heart bypass operations' and numerous other medical interventions and so the argument against euthanasia that death should be reached "naturally" was a weak one. He also recommended the introduction of a 'Living Will', a document where people could give permission to doctors to let them die if they had no control over their bodily or mental functions.

Kennedy claimed that this would stop people continuing to die 'painful and degrading deaths'. It would also mean that those wishing to be helped in their death would not have to travel to countries such as Holland or Switzerland, where euthanasia is legal, as seen with Reg Crew in 2003. On the far extreme of euthanasia, Leslie Burke is fighting for the 'right to live'. He stated that 'doctors should not be able to make the final decision on whether my life is worth living or not'.

Those against euthanasia would believe Leslie Burke's comments to be morally right, but as the law does not yet recognise 'the right to live' in any legislation, it is not upholding the moral values of society. Although Burke's comments do not clarify the law on euthanasia one way or another, his 'right to live' campaign does stress the importance of "the patient/victim" and their wishes. As long as this is the case, it will be virtually impossible to decide the law on euthanasia by legislation, and a case-by-case basis is likely to be the only way to reach satisfactory conclusions.

As the subject of law and morals is such a vast one, it is no surprise that there are several different views and theories. Perhaps the most significant is the Hart-Devlin debate; that is the libertarian approach versus the moralistic view. Professor Hart's stance on issues derives from John Stuart Mill's 'harm principle' established in On Liberty 1859. Here Mill stated that society should only intervene in an individual's freedom if this stops the individual from harming others.

This led Hart to reinforce Mill's libertarian view concerning immoral but private acts in his essay 'Law, Liberty and Morality'. He argues that immoral acts do not greatly affect the integrity of society, as society does not hold the same morals. This is also the view of French sociologist Durkheim, who stated that it is impossible to find moral values that would be acceptable to all members of modern society. This ties in with Hart's belief that law and morals should be kept entirely separate, as morality is a matter of private judgement.

This results in morality having no victim or reason for punishment and so it should not be taught by fear of criminal sanctions. Michael Allen stated that 'it is morally right to hate criminals', and what springs to mind are murderers and paedophiles. If every person who committed what may be considered an immoral act in their private time was considered a criminal and punished likewise, criminal sanction would no longer be a 'form of social control' which Allen believes to be one of the aims of punishment in criminal law.

Society would lose the boundaries between what is considered immoral and what is a criminal offence. There is also the point that punishment can not be justified in moral issues. If it was, moral issues would stop evolving with time and the law would be dictating what society believed in, with no consideration of moral beliefs. The whole point of the law is to reflect society's views, and give justice as it applies. However, the Scandinavian realist Olivercrona argues that our morality is created by the law, not the other way round, and that this is taught from parents and teachers at an early age.

A further argument of the libertarian view is that enforcing private morality is impractical. Time and resources would be shifted from serious offences such as rape, to 'offences' where there are no victims. Lord Devlin's moralistic view developed from Stephen's argument in 'Liberty, Equality and Fraternity' that society should intervene to prohibit morally repugnant acts whether they affected anyone else or not. The aim of this is to preserve morality. Devlin believed in the natural law (from God) and the enforcement of morals.

He also believed that society has the right to pass judgement on matters of morality, as morality is needed to stop society disintegrating; it acts as a safeguard. Although this is a valid argument, it could be said that the law is the only effective method of safeguarding society as there is punishment for going against the law but none for going against morals. Even so, whose morals would be considered? This has led to the criticism that Devlin's view of public morality is really the morality of one group of society – a group that he belongs to. It may be a nai??

ve belief that society's morals will be the same, morals will vary between different parts of the country, between social classes and religious and ethnic backgrounds. The law however, will apply to everyone in the same manner. Devlin also argues that individual freedom can be tolerated if it is consistent with the integrity of society, however once again, even what is considered to be "the integrity of society" will differ from person to person. The Hart-Devlin debate came to light due to the Wolfenden Report 1957, where the law on homosexual acts was relaxed as it was 'not the law's business' to intervene.

Even today this remains a sensitive issue, and the law concerning situations as such can be contradictory. For example, even though the Wolfenden Report saw the relaxation of homosexual acts, the courts in the case of R v Brown 1993, where a group of homosexual men voluntarily participated in sado-masochistic activities, held very much a Devlin view when stating it was 'not in the public interest to allow such behaviour'. The harm caused in the sexual activities of the 'defendants' were held to be worthy of criminal punishment, despite the 'victims' consenting.

However, in R v Wilson 1996 the Court of Appeal allowed the defence of consent when a man branded his initials onto his wife's buttocks, with her approval. In R v Emmett 1999 it was held that 'the nature of the injuries and the degree of actual and potential harm was such that it was proper for the criminal law to intervene'. Although this may appear to be a reinforcement of the Devlin theory, it could also be interpreted under Mill's 'harm principle', as it was believed that the individual could harm others to the extent that consent was no defence.

The importance of both Hart and Devlin approaches was taken into consideration when the Warnock Committee introduced the Human Fertilisation and Embryology Act 1990. Perhaps the most high profile case the HFE Authority has had to deal with was that of Diane Blood 1997, who wanted to use her dead husband's sperm to have a child but was unable to because her husband had not given his consent in writing. There was also the issue concerning the posthumous naming of the father. Until 2000, any child conceived posthumously would have been legally registered as fatherless under the terms of the HFE Act.

Now, men who become fathers after death have their names recorded on their child's birth certificate. This law does uphold morals, as mothers have the right to put their partner's name on the birth certificates of their child even if their partner is not the biological father. Why should they not be allowed to put the name of their child's biological father on the birth certificate? Sperm donation remains a controversial issue, as Libby Purves pointed out recently in The Times, January 2004. She argued that people should 'be allowed to know where their unique bodies came from'.

The moral debate concerning this issue is whether the rights of the sperm donors come before the rights of the child. Kamal Ahuja of Cromwell Hospital argues that 'the rights of a donor outweigh those of offspring yet to be born'. However realists disagree, claiming that 'biology means nothing compared with love'. This is could be the argument of homosexual couples wishing to parent children, and certainly the view of Ben Summerskill of Stonewall, a lesbian and gay group, who claims that a homosexual couple 'can provide a family home that it as loving and secure as their straight counterparts'.

However, the fact that there have been no proposals to extend the rights of same-sex couples under the Adoption and Children Act 2002, could be interpreted as the moral values of society being taken into account, after all, the view of Summerskill is not widely accepted in the country and an Act that goes against this 'morally wrong' view could cause more public outcry than is necessary.

However, this has not stopped cloning, another controversial subject, being outlawed in Britain. Dr Patrick Dixon believes the law to be too liberal when it comes to cloning, and that it is all too easy for a clone to be inserted into the mother outside of Britain, only for her to give birth within the country. Dixon also states that cloning is 'all to do with the rights of the parent and nothing to do with the welfare of the child'.

This is a view shared by many, as cloning is not accepted as the norm in this country but this moral view has not been enough to introduce legislation to curtail the growth of cloning. This suggests that the law does not always uphold the moral view of society, or perhaps keep up with the changing 'norms of society'. To conclude, the law does appear to uphold morals as seen through homosexual couples being unable to legally parent children, as society at the moment would consider this to be morally wrong.

However, other controversial matters remain untouched by the law, as seen in euthanasia and cloning issues, and so the law does not seem to uphold morals or conflict with them. The changing views of society seem to suggest that it is the morals of society upholding the law. Without morals, the law would not appear to uphold anything.