Law and Morality Essay

There has been an ongoing debate ab come in the family relationship betwixt rectitude and worship. Numerous writers and philosophers view proffered arguments on how legality is affected by righteousness. The question it is believed is no longer if incorruptity affects rectitude, it is to what extent is honor affected by clean-livings? And should in that location be any limitations on the relationship between impartiality and faith? The law and incorrupt philosophy conflict has been persisting for many years. Both the inherent law theorists and the positive law theorists would agree that thither is a relationship between law and faith. The argument has now moved to what degree worship should play in law?The obvious indication that this has been laid to symmetricalness is HLA stags concession make at the onset of his book, pr human activityice of law, intimacy and Morality. He utter that in that respect is a definitive answer of yes, that historically and ca sually law has been influenced by object lessonity. In his book Hart rivet on the legal utilisement of chasteity and standardizedwise this essay is concerned with that question. It is believed this is the provided debatable divide between law and morality. The debate became a sulphurous topic in the 1950s after the creation of a c atomic number 18 to investigate and report back on versed moralities.The commission lead to the ordinaryation of the Wolfenden Report in 1957. The report at it outset be the purpose of criminal law as .. to carry through the public separate and decency, to protect the citizen from what is offensive and injurious and to provide adequate safeguards against exploitation and corruptness of others especially the vulnerable, that is the young, weak in body or mind, inexperienced or those in a state of physical, official or economic dependence. The justice should non intervene in the private lives of citizens or seek to en ferocity any particular pattern of behaviour further than obligatory to bleed out the above purpose.Before embarking on the discussion proper, a exposition is required for morality and for what law is. Morality according to the Merriam-Webster online dictionary is (a) a doctrine or ashes of moral conduct (b) particular moral article of faiths or sees of conduct or (c) conformity to ideals of right human conduct. lawfulness on the other hand is defined as a hold fast custom or practice of a biotic community a rule of conduct or action prescribed or formally accepted as binding or enforced by controlling authority. That is morality is non enforceable by its definition while law is.Moralities atomic number 18 normative rules applied to a indian lodge or a sub-group of fraternity that does non bind them in a court of law. The only enforceability of morality by its definition is from the group applying peer pressure. There are ii main schools of thought in this divide between law and morality , the vivid law theorists and the positive law theorists. The natural law school bases overmuch of their ideas of law in their religious beliefs or other transcendental force such(prenominal) as nature. While pluss argue that law has no necessary basis in morality and that it is simply impossible to assess law in foothold of morality.Opposition Supporters of the legal positivist school, such as Hart and Mills, purports that law should be in a different celestial orbit from morality. utileism, a subgroup of the positivism, believes that laws should only serve for the maximization of utility or joy for the majority. John Stuart Mills utter that instead of purchase order imposing morality on members of a nightclub, the various(prenominal)s should be free to choose their own conduct. Utilitarians are not concerned with the morality of law. They believe that law should only play a minimal role in an individuals life.Persons should be free to do whatever they want as long as it does not harm another. This is referred to as the harm principle. Mills express the only purpose for which function can truly be exercised over any member of a civilised community against his will is to prevent harm to others. Mills went on and tell that not even for the individuals own good should such power be exerted. This argument is rebuttable in that not because there was no conterminous physical harm to another, there was no harm.It could be argued that about sensation victorious drugs or proliferating pornography causes ripple effects that may result in harm to others. Pornography promotes women as sexual objects and thereby promotes sexual ferocity against women. Drug users, by their combined effect, lead led to the increase of king-sized underworlds that not only supply drugs but commits direct victim crimes such as murder. If Mills theory is to be adhered to, this would mean that even in a situation of explicit sadomasochist sexual practices that could result in the speck to participants, the law should not get involved to prevent harm.This is because the individuals consented to such acts and no one will be harmed except the willing participants. In this demoralize R v Brown would father been decided incorrectly. Hart said that the judges in Shaw v DPP, where the defendant was convicted for conspiracy to corrupt public ethical motive after publishing a booklet containing details of prostitutes and their sexual practices, seemed willing to pay a high price in terms of the sacrifice of other take accounts for the establishment or re-establishment-of the court as custos morum. The value Hart was referring to is the legality principle of Lon Fuller.He was suggesting the ruling made the law imprecise and thereby itself criminal. Fuller suggests that for law to be moral there must be eight elements referred to as the inner morality of law or principles of legality or procedural natural law. The eight elements are usuality, promulgat ion, non-retroactivity, clarity, non-contradiction, capability of compliance, constancy and congruence. These elements Fuller suggests are what a good legal system should aspire for but no one system has or is expected to perfect all elements.However, significant drop of these elements may mean that a system is an sinful legal system and could support totalism. Fuller said that tyranny is a result of the differentiate down of the internal morality of law and was the case in national companionableist Germany. Hart made that very connection between the principles of legality and tyranny when he suggested that there was no adherence to the principles of legality in Shaw v DPP and by extent was in itself immoral law. The central problem with morality is whose morality is the right morality to enforce.Nazi Germany is the best ex angstromle of law enforcing morality. This is why caution must be used with the continued growth of the court making moral judgements and pronouncing itself as the custos morum. Hart said that there are several flaws with the use of law to enforce morality and if no such enforcement exists it would not necessarily lead to the disintegration of society. He said that society can support several different and sphere of morality. What is con berthred moral in one country is not necessarily the same in another.On a smaller scale, what is considered moral in one religion within a country may not hold current for another, yet they can exist in relative harmony through and through mutual respect. He also said that by using law to enforce morality will result in the stagnating of morals in era. It is evident that morality changes with time and what was immoral years ago would not be immoral today. Sometimes the existing laws do not add together changes in societal. In the case R v R, where a conserve was charged with attempted rape of his married woman, the existing law at the time was outdated in respect of the current moral standards of s ociety.If the courts had followed the law as was, they would directly contradict the will of society and the husband would not acquit done anything illegal. In that case the court made a value judgement, one establish in morality to adapt to the change in the morality of society and found that a husband could in event rape his wife. This case demonstrates the role morality plays in law. If courts did not have any moral basis, hence this may lead to disconnect between the law and society. In R v R the courts had a election either observe an immoral precedent or to adapt itself to the ever-changing morality of the society.Although the judges may try to propound that they only tell what the law was, this judgement is one on moral basis. Should the judges have followed the law at the time that a man cannot rape his wife? Wouldnt that have led to an infringement on the womans individual right? Are judges the right people to clarify morality? Supporters The idea that morality has no place in law has been refuted by many theorists such as Hyman realize and Lord Devlin. Gross contended that Law and morality are one and the same.Laws are inherently moral and that is why acts like murder, rape and theft have been made illegal. Law and morality cannot be separated as the society creates law based on the foundation that the behaviour being address has to be immoral or undesirable by the reasonable man. The problem with this view is that this cannot formulate acts that are prohibited by law but not immoral or the reverse. Sex outside of marriage brings a very solid social scourge but no one believes that adultery stand to the level for legal reprimand.Devlin argued that there is an underlying moral web that keeps society together and it should be protected by law. His approach has some panorama of social contract theory, which suggests that everyone in society is there by agreement. He said that to exist in a society there must be some general principles that me mbers have a consensus on. It could be said to be analogous to a family. In a family there may be several different personalities, but what keep them functioning like a unit is that there are underlying similar determine that act as a cohesive bond between members.Devlin said in The Enforcement of Morals (1959) that Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is a lot the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government the suppression of vice is as much the laws business as the suppression of subversive activities. Former Minister of nicety of Jamaica, Senator Harding, in his speech at the inaugural lecture at the make up of Law and Economics said it would have been helpful if Lord Devlin had provided ex deoxyaden osine monophosphateles of some modern societies which have disintegrated because of the loosening of moral bonds. And it might be a better thing for some societies to disintegrate by loosening its moral bonds. Nazi Germany comes to mind those societies disintegrate from within more frequently than there are broken up by external pressures Devlin said that it is morals that hold society together and should therefore influence the development of law.He goes further and said that even if private acts are considered to create sufficient public disgust, that is if the reasonable man finds this act so unacceptable then it threatens the moral fabric of society and should be subject to criminal punishment. He describes a limit of tolerance as to how much of an immoral act society or the reasonable man can tolerate. Once society passes this limit then something must be done to intervene. Lord Devlin did not suggest that it is all immorality that should be sanctioned.He suggested that the one s that bring right-minded man to disgust should be. It is not believed that Devlin was out of touch with the state of evolution individual liberty. It is how far those individual liberties will be allowed to infringe on the general public morality and liberty? There needs to be a sense of balance between the individuals right and the general publics. Lord Devlin asked if society has the right to make judgment on individual morality. He answered yes, and this seems to be the accepted approach in R v Brown and Shaw v DPP.There is no where in the past times were law has developed in an abstract. Law has developed along with the social changes as R v R Devlin also proposed a signpost for the implementation of statutes. He supported individualism and suggested that persons should have the maximum gist of freedom to do as they wish, except when it conflicts with the societys integrity. He also said that law should only be created to sanction behaviours that are gross, not just merely immoral. And finally, the law should only set the minimal basic standards expected of individuals.Conclusion Morality is important to the integration of society and if the mythical social contract theory has any weight it is in fact as Devlin suggest the web that holds it together. However, it can also be dangerous and may also be the underlying reason for developed disintegration of society as in Nazi Germany. There is no correct answer or side. The answer rest in the balance the balance between the individual right and that of society, the balance between the positivist and the naturalist, the balance between the heterosexual and the homosexual.The individual should have the right to do as he feels but there has to be limitations. The extremes of either side of the debate are the danger zones but the answer lies in the indefinable, indeterminable shadows of the gray that rest between the divide. Bibliography 1. MDA Freeman, Introduction to Jurisprudence 8th sport (Sweet & M axwell) 2. Httpsixthformlaw. info/01_modules/other_materials/law_and_morality_/08_hart_devlin. htm 3. HLA Harts, Law, Liberty and Morality (University of Stanford Press) 4. Dwight Bellanfante, Keep the law out of Gays Bedroom (The Jamaica Observer October 31, 2004).5. Elliott & Frances Quinn, English sound frame eleventh Edition (Longman-Pearson, UK), 6. Criminal Law, Clarkson and Keating, (Sweet & Maxwell), 2007 7. Gary Slapper And David Kelly, The English effectual governance 11th Edition (Routledge, UK) Page 1 . Law, Liberty and Morality, H. L. A Hart, Stanford University Press, 1963. Page 1 2 . Catherine Elliott & Frances Quinn, English Legal dodging 11th Ed (Longman-Pearson, UK), Page 657 3 . http//www. merriam-webster. com/dictionary/morality, accessed 20th October 2010. 4 . http//www. merriam-webster.com/dictionary/law, accessed 20th October 2010. 5 . Gary Slapper And David Kelly, The English Legal System 11th Ed (Routledge, UK) Page 6 . Catherine Elliott & Frances Quinn, English Legal System 11th Ed (Longman-Pearson, UK), Pg 655-656 7 . Law, Liberty and Morality, HLA Hart Stanford university Press, 1963, pageboy 3 8 . Ibid 9 . Catherine Elliott & Frances Quinn, English Legal System 11th Ed (Longman-Pearson, UK), Page 656 10 . 1993 2 All ER 75 11 . 1961 2 W. L. R 897 12 . Law, Liberty and Morality, HLA Hart Stanford university Press, 1963, page 7 13 .1961 2 W. L. R 897 14 . Catherine Elliott & Frances Quinn, English Legal System 11th Ed (Longman-Pearson, UK), Pg 658 15 . Ibid 16 . 1992 1 A. C. 599 17 . 1994 1A. C. 212 18 . Criminal Law, Clarkson and Keating, sweet & Maxwell, 2007 19 . Keep law out of gays bedrooms says Harding, Dwight Bellanfante, Observer staff newsman Sunday, October 31, 2004 20 . 1994 1A. C. 212 21 . 1961 2 W. L. R. 897 22 . 1992 1 A. C. 599 23 . Catherine Elliott & Frances Quinn, English Legal System 11th Edition (Longman-Pearson, UK), Page 658.