The Political and Moral Framework The WritePass Journal

The Political and Moral Framework References The Political and Moral Framework Introduction The existing relationship between morality and law is both interlinked and complex. Morality may be interpreted as a collection of beliefs values and principles which can vary between individuals. The law however is usually interpreted as those principles and rules which direct and enforce certain types of behaviour in society can be punished. However there are many grey areas where it is difficult to reach agreement over morality and standards of behaviour in our society (Martin J, 2010). Positivism emphasises the separation of morality and law, pointing out that law is the group of official rules and regulations found in legislation, legal opinions and constitutions. It is used to govern a society and to control the behaviour of people. Law therefore is a formal aid to social contrast and legal systems are a route to establishing and keeping social order in society. Natural law theorists point out that if a law is not a moral one there is no reason to obey it, whereas positivists believe that until a law is changed, it is the law and should be obeyed. Morality requires the conforming to by following standards and principles, â€Å"a religious code of conduct†, a moral right, â€Å"a claim people would think is justified but not necessarily supported by law†. Morality is very personal to an individual, but law covers society. However in a legal system there is an overlap between legal and moral rules. Telling lies or acting dishonestly is usually thought to be morally wrong, and dishonesty in some circumstances may be thought as legally wrong (http://sixthformlaw.info (17th March 2011). The Hart – Fuller debate pointed to Hart’s belief that no necessary link between a legal system and ideas of morality existed. A legal system, he believed can function effectively though it is neither moral nor just. The Nazi regime, in his view was a legal system as the Nazis argued that racial distinctions were relevant and reflected the morality of their society (http://sixthformlaw.info (17th March 2011). Both Hart and Fuller agreed however that immoral and unjust legal systems were very likely to be unstable and short lived. By lacking morality and justice the allegiance of the people will not follow therefore repression of the people will result. When repression fails, the system will fail. Devlin (1959) pointed out that â€Å"law without morality destroys freedom of conscience and is the road to tyranny†. He argued that criminal law must respect and reinforce the moral norms of society to keep social order from breaking down. (http://sixthformlaw.info (17th March 2011) Law and morality are intertwined and both dictate the manner in which people are expected to behave. The making and passing of laws is heavily influenced by moral viewpoints and these have a very large effect on the progress of law. However in our society, morality and law do not happen at the same time, as one evolves and the other can be instant. Morality is a set of beliefs, values, standards and principles of behaviour, with individual morals varying from person to person (Martin J, 2010). Individual morality may be different to the accepted public or society morality. Moral values are almost always linked with beliefs and can be influenced by religious beliefs. In our society there are very many different religious views and these can be seen to influence and affect moral values within a particular religious group or society. Moral values are only morally binding within a society or group, they are not defined as the law. These values have usually been formed and have developed over a lengthy period of time and cannot be deliberately changed as they have slowly evolved. If changes are to be made then the changes will be gradual and be guided by the will and desire of the people, these changes will obviously take time to evolve. Moral values are almost a voluntary code of conduct and lifestyle and are followed and obeyed because of the possibility of guilt and shame being present if these values are not kept. However there are no punishments if the code of moral values is broken, but some religions may have the power to excommunicate or expel which, within that society, will act as a powerful deterrent to breaking the existing voluntary code of moral behaviour. Morality relies heavily on the individual sense of guilt or shame for its effectiveness (Martin J, 2010). The law however has different and separate rules which guide any conduct. It is binding and is enforceable. The law is able to be altered by legislation and can be changed almost immediately. However the code of conduct is obeyed because of an already existing sense of moral duty and the code is relevant and reasonable, but when the rules are broken some form of legal penalty is usually imposed. This contrasts sharply with morality aspect in which there are usually no punishments for breaches of that code (Martin J, 2010). There are many laws in the country that reflect the moral values of the vast majority of its people. There is also the overlap between morality and the law, as in murder being a crime and also being morally wrong. The law does appear to be based on moral positions but some are not accepted by everyone. The legalisation of abortion in the Abortion Act 1967 serves a vital need to protect the safety of women so that they could have abortions in safe, hygienic clinics under proper conditions (Martin J, 2010). Even with something as protective as this Act, some groups such as â€Å"Life† and â€Å"Lawyers for the Defence of the Unborn Child† fiercely opposed the morality of abortion. The Catholic Church argued that abortion is always wrong as in its belief, life begins at conception. Another contradiction involves sexual morality and the law, with people arguing that sexual conduct outside marriage is wrong, but it is not against the law, as with incest and adultery. Both are classed as morally wrong, but of the two only incest is against the law (Martin J, 2010). However the positivist stance is that properly constructed legal rules must be obeyed, regardless of morality issues or popularity in society (Martin J, 2010). The Wolfenden Committee, asked to examine and consider a variety of moral issues in 1957, recommended the legalisation of both homosexuality and prostitution. There was a lot of debate over these two issues which included the treatment by courts of cases involving both issues. Evidence was taken for three years and the committee concluded that the job of the law is to preserve public decency and public order whilst protecting the public from offensive and injurious actions, also to provide safeguards against corruption and exploitation particularly for those who are vulnerable in society. The Committee also stressed that the law did not exist to interfere in the private lives of the public or to enforce patterns of behaviour. The three main recommendations of the Wolfenden Committee were; Soliciting in the streets – should be classed as an offence. This resulted in the Street Offences Act 1959 and made soliciting illegal and aimed to protect citizens in the streets from being solicited or harassed by prostitutes (Price N, 1957). Homosexual acts – between adults in private should be decriminalised (criminal law should not interfere with private lives of citizens) This recommendation became part of the Sexual Offences Act 1967 and applied to men over 21 yrs of age, later reducing to 18 yrs of age in 1994 and to 16 yrs of age in 2000 (Price N, 1957). Prostitution – should be a private matter and not subject to interference by the law as it was a commercial act (Price N, 1957). Such was the nature of these recommendations that judge Lord Devlin and Professor Hart took opposing sides. Lord Devlin’s stance, that the findings of the Committee in which the law has no business with private morality criticised the findings. He said that private immorality harmed the public and that stability in the society is achieved through cohesion, therefore the law should safeguard it. His views were used by the courts in Shaw v DPP (1961) and R v Gibson (1991) and by the House of Lords in R v Brown (1992). Professor Hart supported the opposite view to Lord Devlin and backed the findings of the Wolfenden Committee. He argued that the moral standards in society have changed through the years and that departing from accepted standards of sexual morality by consenting adults has not threatened society. His views were followed by R v Wilson (1996) and R v Brown(1992) in the Court of Appeal. The Wolfenden Committee recognised that the law has a function to provide safety against corruption and exploitation of people, but Lord Reid argued that people who choose to corrupt themselves have that choice, it is their affair to do it and the law should not interfere. However, he continued that no licence should be given to anyone to encourage this practice. The effect of morality on English law therefore was considerable and even the European Court of Human Rights became involved when the case R v Brown (1994) was heard. This case involving homosexual sado-masochistic acts, resulting in injuries, demanded that they should be treated as unlawful although happening in private between consenting adults. The House of Lords ruled that a breach of the law of criminal assault had occurred. The defence of consent was not upheld despite the pleas from Lord Slynn and Lord Mustill claiming that the courts were not to protected people from themselves (Martin J, 2010). However the Court of Appeal in R v Wilson (1996) found that a wife could consent to her husbanding branding to her buttocks with a knife. Morals played a part in this ruling the court found that it was not their duty to interfere in the private acts between husband and wife (Martin J, 2010). These decisions again had an effect on morality, particularly when finding that private actions were not the concern of the courts, despite them seemingly being against the law. In criminal law, morality plays a large part, particularly when sexual offences are being committed. Offences of homicide and those which are not fatal acts are linked to the moral viewpoint that it is wrong to physically harm or even kill anyone without justification. The impairing of reasoning because of an abnormality of the mind – diminished responsibility, has been accepted and it is now wrong to convict a person of murder if he has that condition under The Homicide Act 1952 (Martin J, 2010). Refusing a blood transfusion on religious grounds, ensures that it cannot be given or would bring a charge of committing a criminal act, if the blood transfusion was given, even if a child’s life was in danger (Martin J, 2010). In recent years there have been cases of terminally ill patients wishing to die. No one can consent to aid their own death. Anyone assisting a person to die is guilty under the law of assisting suicide. A case of this nature was R v DPP (2001) brought about by the husband of Dianne Pretty. Her application to the courts that if her husband helped her to die he would not be prosecuted, was refused in the House of Lords despite public sympathy and approval. The ruling that her husband would be guilty of a criminal offence was upheld (Martin J, 2010). Before 1961 it was a criminal offence to commit suicide, as failure to do so when attempting suicide ensured prosecution for the offence. The law now has changed, and morality does influence the law as suicide attempts which fail are not always prosecuted (Gardner J, 2011). There are however several exceptions to the public policy of consent when assault charges are involved resulting injuries. These exceptions are usually found in examples from games or sports, tattooing, reasonable surgical acts, body piercing and horse play. These have been allowed because of general public interest, consent is accepted as a defence in these instances (Martin J, 2010). Finnis (1980) claimed that the law makes a moral claim for it-self and means that an ideal type of law (the paradigm) is a morally justified law. If the moral claims made by the law succeed in its moral aims, it is morally justified law. It is the law that lives up to the moral standards (Gardner J, 2011). A legal rule may be morally justified as it is applies to one action and not as it applies to another, in the same way it applies to one person and not as it applies to another person. It is therefore hard to imagine that any law has all the moral force that it claims for itself. The moral problem of the law is how or why it speaks to morally decent people, why it is trying to direct people to accept by claiming moral authority (Gardner J, 2011). The law always tells people what they must do without including virtue or advantage as being part of the law. It requires actions in the interest generally. One of the problems with morals is that they are wholly subjective and vary in application from one group or society, to another. What is frowned upon as immoral in one society may be tolerated in another (Green L, 2011). This can and does cause problems, particularly in cases such as abortion or adultery. These are both legal issues, but many believe to be immoral. Gillick v West Norfolk and Wisbech A.H.A (1986) showed that a mother challenged her daughter’s doctor for issuing contraceptives. The mother lost the first hearing, won in the Court of Appeal but lost again in the House of Lords. The whole case led to children having greater rights to make their own decisions on matters like medical treatment. â€Å"Gillick Competent† was a phrase coined for this development in the moral issue. Both morals and law involv e rules as the courts enforce the law but not social rules. If the morality is a shared belief then most people will obey the rules (Martin J, 2010). In conclusion, it is clearly shown that the relationship between the law and morals is a complex and intertwined one. They both dictate the manner in which people are expected to behave in their everyday lives and how moral beliefs can have a great influence on the making of laws. It is argued by some that many aspects of criminal law represent a common moral stand point. The moral standing of a community has an influence on the development of present and future law. The views of the Wolfenden Committee, Professor Hart and Lord Devlin feature strongly in moral and legal issues, with Lord Devlin maintaining that the law should support moral principles, even if public opinion changed. Professor Hart took a different a different and opposite view to that of Lord Devlin, arguing that there should be a clear separation of law and morality. Even when contradictions in law are shown, R v Wilson (1997), in an apparent criminal act, the crime was not punished as the Court of Appeal ruled that it was consensual, a private matter, and the law should not interfere. From the 1980’s and in some areas, earlier in time, rules and laws came about through custom and established practices whereby the community would show a united disapproval if a practice was broken. Legal sanctions were not used. In modern times there are changing morals, increasing numbers of laws and development of both. As these are almost always intertwined, our society appears to depend more on the law and its rules than on many previously held moral beliefs. References Access Law (Work Guide – Hand Out) – Law and Morals (2010/2011) Gardner J, (2004-2011) Law and Morality.pdf Available at: http://users.ox.ac.uk/~lawf0081/pdfs/lawmoralityedited.pdf Accessed: 18th March 2011 Green L, (2002-2011) The Inseparability of Law and Morality.pdf Available at: ivr2003.net/workshop_abstracts/documents/Greenfulltext.pdf Accessed: 18th March 2011 Martin J, et al. (2009) AQA Law for A2, Third Edition. London: Hodder Education. Price N, (1957) A-Level Law Review Vol.1, No.1. p28. Sussex: A-LEVEL LAW REVIEW Ltd.   Souper M, Sixth Form Law  © 2000-2010   Law and Morality Available at: http://sixthformlaw.info/01_modules/other_material/law_and_morality/index.htm Accessed: 18th March 2011 Bibliography Harbermas J, (1986) Law and Morality, Translated by Baynes K (Boston University), THE TANNER LECTURES ON HUMAN VALUES: Harvard University USA.pdf Available at: tannerlectures.utah.edu/lectures/documents/habermas88.pdf Accessed: 18th March 2011 Riley G, (2009-2011) Law and Morality in Economic Life Available at: http://tutor2u.net/blog/index.php/economics/comments/law-and-morality-in-economic-life/ Accessed: 18th March 2011 William I, et al. (2008) Theories of Law and Morality: perspectives from Contemporary African Jurisprudence, In-Spire Journal of Law, Politics and Societies (Vol.3, No.2).pdf   Available at: tannerlectures.utah.edu/lectures/documents/habermas88.pdf Accessed: 18th March 2011