Law and morality

CAPE Law

1. Law and Morality

2. Objectives define law Define morality

3. Definitions It is possible to describe law as the body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behaviour of its members,  so Law is a formal mechanism of social control. Law is also defined as a set of rules and principles which enforce particular types of behaviour. A society’s code of morality may be defined as a set of beliefs, values, principles and standards of behaviour.

4. Definitions Morality is a rule which lays down a standard of behaviour which the bulk of society accept and to which its members ought to conform and which justifies censure in its breach. Religion is defined as a system of beliefs and practices that people follow in order to make sense of life, to bring meaning to their existence and to bring them comfort and guidance.

5. Introduction The relationship between law and morality is complex. Moral and Legal Rules

6. Law and Morality People resort to various kinds of rules to guide their lives. Thus moral rules and ethics remind us that i t i s immoral to covet, to tell lies or engage in drunkenness in private. Society may disapprove of such practices but the law is not so concerned with such matters and leaves them to the individual’s conscience.

7. Three main theories The Liberal View (harm to others) proposed by John Stuart Mill Also sharing a libertarian view is the report given by the Wolfenden Committee The Moralistic view (harm to society) proposed by Lord Devlin Paternalist view (harm to self and oothers ) proposed by Professor H.L.A Hart

8. The Liberal View John Stuart Mill posits that the only purpose for which power can be rightly exercised over any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral is not sufficient. Mill argues this approach is good for individuals and society.

9. Liberal View Contd. The Wolfenden Committee also of the Libertarian view posits that they see the law as preserving public order and decency , protecting the citizen from what is offensive and injurious, and also provide sufficient safeguards against exploitation and corruption of others, particularly those who are vulnerable because they are young, weak in body and in mind, inexperienced, or in a state of special physical, official or economic dependence. However, it is not the function of the law to intervene in the private lives of citizens, or to seek to enforce a particular pattern of behaviour further than is necessary to carry out the purposes outline.

10. Liberal View Contd. Based on this premise the Committee recommended that homosexuality between consenting males in private should no longer be a criminal offence. They suggested that the society ought to give the individual freedom of choice and action in matters of private morality. They also stated that unless a deliberate attempt is made by society, acting through the agency of the law, to equate the sphere of morality with sin, there must remain a realm of private morality and immorality which is in brief terms “not the law’s business”. They made the same argument for prostitution.

11. The Moralistic View According to Devlin there is only one explanation of what has been accepted as the basis of criminal law and that is that there are certain standards of behaviour or moral principles which society requires to be observed, and the breach of them is an offence not merely against the person who is injured but against society as a whole. Devlin believed that there was such a thing as public morality.

12. Moralistic view contd. According to Devlin, an established morality is as necessary as good government to the welfare of society. 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 often 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 and other essential institutions.

13. Moralistic view contd. “The suppression of vice is as much the laws business as the suppression of subversive activities, it is no more possible to define a sphere of private morality that it is to define one of private subversive activity.” ‘It is wrong to talk of private morality or of the law not being concerned with immorality as such or to try to set rigid bounds to the part which the law may play in the suppression of vice. There…can be no theoretical limits to legislation against immorality.’

14. Moralistic view contd. ‘You may argue that if a man’s sins affect only himself it cannot be the concern of society. If he chooses to get drunk every night in the privacy of his own home, is anyone except himself the worse for it?’ ‘But suppose a quarter or a half of the population got drunk every night, what sort of society would it be? You cannot set a theoretical limit to the number of people who can get drunk before society is entitled to legislate against drunkenness.’

15. Lord Devlin’s argument outlined Morality is essential to the welfare of society. Morality is social, not private. It is the business of government to look after the welfare of society. So it is legitimate for government to pass laws on the basis of preserving moral values.

16. The Paternalistic view The final theory is the most modern and is the Paternalistic view, harm to self and others view as put forward by Professor Hart in the 1960s. His theory is that the law should only intervene in the private lives of citizens to prevent harm to others and harm to oneself. He did acknowledge that there was a difficulty in defining harm but did acknowledge that it did not include moral harm to oneself. An existing law illustrating this theory is the law which prevent methods of prostitution. The Paternalistic view focuses very much on the individual.

17. The Paternalistic view ‘The only freedom which deserves the name is that of pursuing our own good in our own way.’ Freedom and individuality are connected. ‘The free development of individuality is one of the leading essentials of well-being.’ Individuality and welfare are connected. Therefore, freedom is necessary to the welfare of individuals.

18. The Paternalistic view Pursuing your own good in your own way is an ‘experiment of living’. To limit these experiments on any grounds other than their causing harm to others is mistaken and will harm society as a whole : To impose a way of life on moral grounds is to assume infallibility about moral values. Bad ways of living might still have some insight or truth to them that we would lose if we banned them. Diversity of lifestyles causes people to think about how to live, which leads to better lives. Different people need to live different sorts of lives.

19. “What do you think? Should the law enforce morality?”

20. Read the following cases Shaw v. DPP (1967) AC 220 Knuller v DPP (1973) AC 235 Donoghue v Stevenson [ 1932] AC 562 Mohamed v Moraine and Another (1995) 49 WIR 37