Law and Morals
Law- Rules that govern and are imposed upon individuals and members of a state.
Morals- Shared values held by some members within the state that tell them what is right and wrong.
The differences between the two were outlined by Professor Hart …
• If there is an area of dispute with law it can be looked up, either by looking at the common case made law, or by statute, which is not available with morals.
• Laws can immediately be changed, introduced or abolished which is not the case with morals.
• If morals are forgotten or deemed no longer relevant they simply cease to exist, which is not the case with Law.
• Laws are enforced actively, for example by the police. Morals are enforced only by social pressure and the appeal of following them.
• Laws may be strict liability and therefore do not require mens rea, but to breach morals full mens rea is required.
Within society there is diversity which can affect morals.
Warnock stated that over time they can change, along with attitudes and often depend on circumstances. Examples of this are women’s liberation and attitudes towards homosexuality.
Durkheim said that differing social status, wealth and ethnicity as well as many other factors ensures that there will be no shared morality within society.
Morals and Law do have a relationship however, which is seen in Contract law, which is based on the moral principle that people should keep their promises as well as Tort law, which says that people should not be harmed and if they are they should be compensated. This comes from Lord Atkin and the case of Donaghue v Stevenson.
The Hart-Devlin debate was an example of where the relationship of morals and law has been discussed. Following the 1957 Wolfendun Committee which recommended that homosexuality and prostitution (in some instances) be legalised the debate began.
Hart agreed with Durkheim and said that beyond ‘minimum content’ of protection of people and property society has no shared morality.
Devlin suggested that this was wrong, and society should punish any acts which weaken the shared morality of the state.
Case examples of where the law has upheld morality.
Shaw- D was convicted of conspiring to corrupt public morality after publishing details of prostitutes in a book.
R v R- The marital rape case, this abolished the principle that a wife always gave consent for sex when she married. D was convicted after raping his wife who he was separated from.
R v Brown- In this case the court convicted the Ds of offences against the person committed in private for sadomasochistic pleasure. It was held that it was not in the public interest that this immoral practise be allowed to continue.
Jones V Vernon Pools- Jones won the football pools but was not paid his money. The court did not become involved as they said they did not want to be responsible for the enforcement of a gambling debt.
Nettleship V Weston- The court held that learner drivers would be judged according to the standards of ordinary drivers for injuries caused, and that Ds insurance company would pay for damage caused.
Buttle V Saunders- Trustees are morally required to get the best price for the property, rather than uphold non binding verbal agreements.
Fewings- Councils should get the best possible economic use of land available as a moral duty, rather than considering the morality of foxhunting.
Gillick- It was legal for an under 16 year old girl to be given contraception and advice without parental consent, providing she was seen as mature enough.
Blood- Diane Blood was allowed to conceive using her dead husband’s sperm, without the explicit consent of him before he died.
Bland- It was morally right held the court, to withdraw treatment and food from a patient in a Persistent vegetative state.
Pretty- It was not allowed for Pretty’s husband to help assist her suicide.
Re: A- The court held that it would be the lesser of two evils for conjoined twins to be separated, knowing one would die as a result without the consent of the parents.