Whether the law should be involved in certain areas of morality has been a debate for many years, especially between the two opposing schools of thought. Naturally and certainly obviously there are certain areas of morality of which the law has to be involved, for example murder and manslaughter, however there are many areas of private morality that I personally believe are not the laws business. The moral values of communities lay down a framework for how its people should behave. Morality differs from culture to culture therefore it is difficult to make a uniform law based on such morals.
However, the law of a country is usually a reflection of the moral values accepted by society. For example the law of Tort proceeds that if an individual brings harm against another individual he should compensate him. Additionally, the law of contract states that people should act as they have promised to. Both of these are rooted in the morals generally accepted by English society. Furthermore, morals change over time, and example of this is where there has been a perceptive shift in public opinion as it concerns homosexuality, the legal philosopher Warnock shows this.
Durkheim also states that in a modern developed society it is difficult for everybody to agree on certain morals, as there are many people from different ethnic backgrounds. On the other hand, in a primitive society, there may be a more general consensus on what the moral code is. Moral standards are said to have a profound influence over the development of law. One must only look at the Ten Commandments to be convinced, 'thou shalt not kill", certainly this is a moral upheld today both morally and legally. Therefore Salmons theory of intersecting circles can be proved true.
Salmon believed that law and morality overlap, examples of this is unquestionably murder, and the Offences Against a Persons Act. There are also differences between Law and Morality in the way they develop and the sanctions that are imposed should they be breached. Morality cannot be changed over night; it originates from religious values and can only evolve slowly, according to changing attitudes and the will of the people. However Law can be changed through legislation of even through judicial precedent. In addition if there is a breach of any sector of law it can end in punishment by various forms subject to the English legal system.
Whereas, Morality is voluntary act that carries no official sanction if it is breached. Its effectiveness relies on an individual's sense of shame and conscience, however more often than not the end result is uniform condemnation from society. The connection between Law and Morality has given rise to a major difference of opinion between legal theorists. One of the distinctions made in the Law and Morality debate is the paradox between public and private morality. Acts concerning Public Morality include murder, theft and assault, (where Law and Morality overlap.
) Private Morality such as adultery, prostitution and homosexuality only affect the consenting parties and are considered immoral however they are not illegal. Cases include, KnullervDPP, ShawvDPP and RvR The debate is known as the Hart-Devlin debate. Hart being a positivist with libertarian views and Devlin from the Natural school of thought with authoritarian views. The debate considers if law should be involved in certain areas of morality, namely private morality, where acts considered as immoral by society should be punished or not even though they do not harm to others.
Such was the case in RvBrown. Therefore they consider how far law and morality should overlap. Lord Wolfenden in his report stated that 'there must remain a realm of private morality and immorality which is, in brief and crude terms, not the Law's business' This view was upheld by the Wolfenden Committee, who established a report on homosexuality and prostitution being legalized. This view is influenced by Sir John Mills' essay 'On Liberty'. His argument was that society should not interfere with the life of an individual.
This view is strongly supported by Hart, a professor of Law at Oxford University. Hart believes that law and morality are entirely separate and that law should not enforce morals for many reasons. Firstly, it would have the undesirable effect of preventing morals from evolving. Secondly, it would prevent individual liberty and thirdly, if it does not cause harm to others then it is not the laws business to punish. One problem with this view is that harm is not defined, it is said that if harm is defined too broadly then it can justify the prohibitation of almost everything.
One must also question if it is direct of indirect harm. An example of this is an individual who is taking drugs; this only affects the individual using them, so according to Hart the Law should not interfere. However was happens if the individuals situation worsens, the drug taker would indirectly harm those he would become dependent on, is it only here that the law should take action? Furthermore the word others is not clearly defined, this is certainly a problem when considering abortion, where it must be decided if the fetus is a human being.
Therefore the libertarian view on this matter seems all too vague. The authoritarian argument is based on the natural school of thought, where divine legal rules should be based on religious and moral rules, and obeyed if they are made by a sovereign body, no matter how bad they seem. They believe that activities should be prevented if they are considered immoral. Therefore if the majority of people regard homosexual activities with disgust then they should be illegal, even if it is between consenting adults and not causing harm to anyone.
Devlin disagrees with the theory of harm principle, as it is too limited, he also believes that individual privacy should be respected as far as possible. Devlins Theory is criticized as it id difficult to establish and define what a reasonable person is, since each society has different moral principles. In conclusion, if law is too restrictive of the freedom of an individual it will lose its respect amongst society. However if law is too liberal, it may lose its moral authenticity and fail to protect those in need.
However what us certain is that the law is involved in areas of morality, whether it should be or not is still debated, although there has been some relaxation to preserve individual liberty. Personally I believe that prostitution, euthanasia and homosexuality and other activities such as those in the case of RvBrown are especially areas that are not the law's business. I believe that you cannot respect the privacy of an individual whilst at the same time punish him for activities done in private that cause not harm indirectly or directly on any other human being.