Law and Morality (AQA A-Level Law): Revision Notes
Law and Morality
This will be assessed in Paper 2 and/or Paper 3.
The distinction between law and morality
Understanding the difference between law and morality is fundamental to studying legal theory. While these concepts can overlap, they are distinct in nature and function.
Laws are rules and regulations that are objective and not necessarily fault-based. For example, speeding is a legal offence regardless of whether the driver intended to break the speed limit. Laws exist to maintain order in society and are enforced by the state through formal sanctions.
Morals, on the other hand, are subjective personal codes of values or beliefs that are based on levels of fault and determine what is right or wrong. For example, lying is generally considered morally wrong, but it is not always illegal. Morals are internal standards that guide individual behaviour and vary between people.
Overlap Between Law and Morality
In some situations, there is an overlap between law and morality. Murder, for instance, is both against the law and morally wrong in virtually all societies. This overlap shows that law sometimes reflects widely-held moral values.
However, there are other situations that cause tension between legal and moral rules. Abortion and euthanasia are prime examples where legal rules may conflict with the moral beliefs of certain individuals or groups. These areas demonstrate that law and morality do not always align, particularly in a diverse society.
The diversity of moral views in a pluralist society
The UK is a pluralist society, meaning it contains more than one:
- culture
- race
- religion
- political party
- language
- ethnic origin
- set of customs and traditions
- social class
In an effective, progressive pluralist society, diversity should be celebrated, not simply tolerated. This diversity enriches society but also creates challenges for lawmakers. The key tension is: should the law involve itself in matters of moral importance to some groups?
Different cultural, religious, and social groups may hold very different moral views on issues such as assisted dying, same-sex marriage, abortion, or drug use. When creating laws, Parliament must navigate these competing moral perspectives. This makes lawmaking particularly complex in areas where moral views are strongly held and divergent.
The pluralist nature of UK society means that imposing one group's moral values through law may be seen as oppressive or discriminatory by others. This creates an ongoing debate about the proper relationship between law and morality.
Relationship between law and morality
While laws and morals are distinct concepts, they have a complex relationship. Understanding their similarities and differences is crucial for legal study.
How laws are created and enforced
Laws are made by formal institutions, primarily Parliament and the courts. Parliament creates statute law through a democratic process, while courts develop common law through judicial decisions. However, it is worth noting that common law may have its origins in moral principles that developed over time.
Laws can be instantly made or repealed through parliamentary action. For example, a new Act of Parliament comes into force on a specified date. However, in practice, legal change often takes considerable time and requires public pressure. The Human Rights Act 1998, for instance, was passed years after the United Nations Declaration of Human Rights in 1948.
The existence of a law can be clearly established by reference to statutes or case law. However, this does not necessarily make a law morally right. During war crimes trials, many defendants argued they were merely obeying their country's laws, demonstrating that legal validity does not guarantee moral legitimacy.
Breaking laws attracts formal sanctions, punishment, or remedies enforced by the state. These range from fines and community orders to imprisonment. The state has a monopoly on legitimate force to ensure compliance with legal rules.
In a democracy, society's attitude to specific laws can only be ignored short-term. While laws are technically binding regardless of public opinion, sustained public opposition can lead to repeal or reform. Recent disputes over the "tampon tax" illustrate how public pressure can influence legal change.
How morals develop and operate
Morals evolve as society evolves, with no formal creation process. Unlike laws, which have a clear moment of enactment, moral standards shift gradually. Sometimes moral change can be rapid, such as during the 1960s when attitudes toward contraception, sex outside marriage, and recreational drugs changed dramatically within a decade.
Some religious texts, such as the Ten Commandments in the Bible or the Koran, represent attempts to create formal moral codes. However, even these are interpreted differently by various groups.
Morals are only vaguely defined compared to laws. There may be general agreement on some moral issues, such as murder being wrong, but not on others, such as abortion. This lack of precision distinguishes morals from the detailed rules found in legal statutes.
Breaching moral standards merely results in social condemnation rather than state enforcement. Someone who lies may lose the trust of friends or family, but faces no official punishment (unless the lie constitutes fraud or perjury). This informal enforcement mechanism differs fundamentally from the organised legal system.
Morals reflect society's values and beliefs. They are subjective, meaning they vary between individuals and groups. Morals are also fault-based, concerned with intention and blameworthiness.
Key differences summarized
Laws:
- Objective
- Not necessarily fault-based (strict liability offences exist)
- Obligatory for all members of society
- Made by formal institutions
- Can be instantly created or repealed
- Clearly defined and established
- Enforced through state sanctions
Morals:
- Subjective
- Fault-based
- Reflect personal or group values
- Evolve gradually with society
- Change through slow transitional periods
- Only vaguely defined
- Enforced through social condemnation
The legal enforcement of moral values
A central question in legal philosophy is whether law should be used to enforce moral values. This debate has practical importance because it affects which behaviours are criminalized and which are left to individual conscience.
Lord Devlin's four principles
Lord Devlin devised four key principles for Parliament to consider when deciding which moral "offences" ought to be prohibited by law:
1. The individual freedom allowed must be consistent with the integrity of society
This principle recognizes that individual liberty is important, but it must not be so extensive that it threatens the cohesion and functioning of society as a whole. Some restrictions on freedom may be justified to preserve social order.
2. The limits of tolerance are not static, but lawmakers should be slow to change laws which protect morality
Society's moral standards change over time, and the law should reflect this evolution. However, laws based on moral principles should not be changed hastily. Lawmakers should move cautiously when considering whether to liberalize laws that enforce moral standards, allowing time for social attitudes to develop.
3. Privacy must be respected as far as possible
What individuals do in private should generally be beyond the law's reach. This principle suggests that consensual private behaviour should not be criminalized, even if some people find it morally objectionable. The state should not intrude into private life without compelling justification.
4. The law is concerned with minimum rather than maximum standards of behaviour
The law sets down a minimum standard of behaviour that everyone must meet. Society's moral standards should be higher than this legal minimum. In other words, just because something is legal does not mean it is morally acceptable. The law draws a floor below which conduct is prohibited, but individuals and communities should aspire to higher standards.
These principles provide a framework for thinking about when moral enforcement through law is appropriate, balancing individual freedom against social cohesion.
Two philosophical approaches
There has been extensive academic and legal debate about whether the law should be used to enforce moral values. Two main philosophical schools of thought have emerged: positivism and natural law theory.
Positivism
Positivism maintains that laws and morals should be kept separate. Positivists argue that the law should not concern itself with enforcing morality unless immoral conduct causes harm to others or to society.
Key positivist theorists
Aristotle argued that the law should be "reason, free from passion". Law should be based on rational principles rather than emotional or moral reactions. This separation ensures objectivity and consistency.
Jeremy Bentham dismissed natural law theory as "nonsense upon stilts". He believed that law derives its authority from the sovereign power that creates it, not from moral principles. Bentham was a utilitarian who thought law should maximize happiness rather than enforce morality.
John Stuart Mill's Harm Principle
John Stuart Mill provided one of the clearest statements of the positivist position: "The only purpose for which power can be rightfully exercised over any member of a civilised society against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant."
This principle, known as the "harm principle", suggests that the state should only interfere with individual liberty to prevent harm to other people. The state should not use law to make individuals moral or to protect them from themselves.
H.L.A. Hart questioned whether it is morally permissible to enforce morality through law. He argued that depriving someone of freedom causes pain to the individual, and individuals should not be deprived of liberty unless this is justifiable in the interests of society.
Hart further argued that laws which merely enforce morals should cease to exist. Laws should only intervene where immorality causes harm to society or harm to the individual concerned. This represents a refined version of Mill's harm principle.
Wolfenden Report 1957
The report stated: "Unless a deliberate attempt is made by society, acting through the agency of law, to equate the sphere of crime with that of sin, there must be a realm of private morality and immorality which is, in brief and crude terms, not the law's business."
This report, which examined laws on homosexuality and prostitution, concluded that private consensual behaviour should not be criminalized. The report was highly influential in the eventual decriminalization of homosexuality.
The positivist approach emphasizes individual liberty, privacy, and the harm principle. It suggests that law and morality operate in separate spheres and should not be confused.
Natural law theory
Natural law theory maintains that the law should be used to enforce moral values. Natural law theorists argue that law and morality are intrinsically connected, and that some actions should be illegal because they are immoral.
Key natural law theorists
St Thomas Aquinas described natural law theory as a "dictate of right reason". He believed that certain moral principles are objectively true and discoverable through reason, and that human law should reflect these universal moral truths.
James Fitzjames Stephens took a strong position, arguing that "the immorality of an action is good reason for it to be a crime and the law should be a persecution of the grosser forms of vice." This represents an aggressive approach to using law to enforce morality.
Lord Devlin argued that "the suppression of vice is as much the law's business as the suppression of subversive activities." He believed that society has a right to enforce its moral standards through law to maintain social cohesion.
Devlin also stated: "It is an error of jurisprudence to separate crime from sin." This directly contradicts the positivist position and the Wolfenden Report, arguing that immoral conduct (sin) should be treated as criminal.
Lon Fuller, referring to laws made by Germany under the Nazi regime, argued that "some laws are so immoral that they must be invalid". This suggests that law derives legitimacy from conformity with moral principles, and grossly immoral laws are not truly law at all.
Viscount Simonds stated: "There remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state."
This suggests that courts have an inherent power to protect public morality, even without specific statutory authority. This was the basis for creating or maintaining common law offences related to public morality.
The natural law approach emphasizes that law should reflect and enforce moral standards to maintain social cohesion and preserve the moral fabric of society.
The practical difficulty of these theoretical positions
In practice, it is difficult to adopt a purely theoretical position on whether law should enforce morality, particularly in a pluralist society. Judges are often faced with tough decisions involving matters of life and death, where the arguments become much more difficult to polarize.
Case Example: Conjoined Twins Jodie and Mary (2000)
A notable example is the 2000 case of conjoined twins Jodie and Mary. The only way to save Jodie's life was for doctors to perform surgery that would kill Mary. Lord Justice Ward acknowledged the difficulty, saying: "This is a court of law, not a court of morals." Yet the decision inevitably involved moral considerations about the value of life and whose interests should prevail.
Because matters involving law and morality can be very divisive, political parties and politicians often prefer not to publicly state their positions for fear of alienating voters. Recent cases regarding baby Charlie Gard and Tony Nicklinson (concerning rights to receive treatment or to die) illustrate this difficulty. Parliament sometimes uses free votes (where MPs vote according to conscience rather than party lines) to pass controversial laws without parties having to take official positions.
The attempts to pass the Assisted Dying Bill demonstrate how moral disagreement can prevent legal change, despite significant public support in some quarters.
Key cases illustrating positivism and natural law
Understanding how these theories apply in practice requires examining real cases. The following cases illustrate how judges have approached the relationship between law and morality.
Cases reflecting positivism
R v Wilson (1996)
Facts: A defendant branded his initials on his wife's buttocks with a hot knife at her request. Her skin became infected and she sought medical treatment. The doctor reported the matter to police, and the husband was charged with actual bodily harm.
Decision: The Court of Appeal refused to convict. Russell LJ stated: "Consensual activity between husband and wife, in the privacy of the matrimonial home, is, in our judgment, a proper matter for criminal investigation, let alone criminal prosecution."
Significance: This case reflects positivist principles, particularly respecting privacy and avoiding state interference in consensual private conduct. The court refused to enforce a moral view about what married couples should or should not do in private.
R v Human Fertilisation and Embryology Authority ex parte Blood (1997) concerned Diane Blood, whose husband contracted meningitis and lapsed into a coma. Samples of his sperm were taken for later artificial insemination. Her husband died shortly after without regaining consciousness.
Because the husband's written consent was not obtained (as required by statute), Blood was not initially permitted to use the sperm. This strict application of the statutory requirement, regardless of the emotional circumstances, reflects positivism. However, Blood later used EU law to receive treatment abroad, showing how different legal systems may balance law and morality differently.
Gillick v West Norfolk and Wisbech Health Authority (1986) involved Mrs Gillick seeking a declaration that it would be unlawful for doctors to prescribe contraceptives to girls under 16 without parental knowledge or consent.
The court refused to grant the declaration, instead setting out guidelines for when children can give consent to medical procedures (now known as "Gillick competency"). This case prioritized the autonomy and privacy of young people over parental moral authority, reflecting positivist principles about not imposing particular moral views through law.
Evans v UK (2007) concerned a woman who wanted to use embryos fertilized by her ex-partner, but he withdrew his consent. Despite the emotional circumstances and Evans' desire to have a child, the court held that consent requirements must be strictly applied.
This demonstrates positivism by giving effect to the law's requirements regardless of the moral arguments about the woman's right to have a child or the status of the embryos.
Cases reflecting natural law
R v Brown (1993)
Facts: Defendants engaged in sadomasochistic activities, including physical torture, with full consent.
Decision: The House of Lords convicted them despite the consensual nature of the acts. Lord Templeman stated: "Pleasure derived from the infliction of pain is an evil thing." This clearly moral judgment formed the basis for the legal decision. The court concluded that consent cannot make certain immoral activities lawful.
Significance: This case reflects natural law theory by using law to enforce moral standards about acceptable sexual conduct.
The Brown-Wilson Inconsistency
The contrast between Brown and Wilson (both involving consensual harm) shows the inconsistency that can arise when courts take different approaches to the law-morality relationship.
Shaw v DPP (1961) involved a defendant who published a ladies' directory of services offered by prostitutes. The House of Lords convicted him of conspiracy to corrupt public morals, stating: "The supreme and fundamental purpose of the law is to conserve not only the safety and order but also the moral welfare of the state."
This case is a clear example of natural law theory, with courts using their power to protect public morality even where no specific statutory offence existed.
Knuller v DPP (1973) concerned a magazine that published advertisements by homosexuals seeking to meet like-minded individuals. The House of Lords doubted the correctness of Shaw but declined to depart from it, maintaining the offence of conspiracy to corrupt public morals.
This demonstrates judicial reluctance to abandon the natural law position that courts have inherent power to protect public morality.
R v Gibson and Sylveire (1990) involved defendants who exhibited earrings made with freeze-dried human foetuses at a London gallery. They were convicted of outraging public decency.
This was the first occasion in more than 80 years that this charge had been used, showing courts' willingness to employ common law offences to enforce moral standards about what is acceptable to display publicly.
Pretty v DPP (2001)
Facts: Diane Pretty attempted to change the law so she could end her own life because of motor neurone disease.
Decision: Lord Bingham stated: "The task of the committee in this appeal is not to weigh or evaluate or reflect those beliefs and views or give effect to its own but to ascertain and apply the law of the land as it is now understood to be."
Significance: Despite this seemingly positivist statement about applying existing law, the court refused to change the law to permit assisted suicide, effectively maintaining the natural law position that life is sacred and cannot be intentionally ended.
R v Cox (1992) concerned Dr Cox, a consultant who had been treating a patient with severe rheumatoid arthritis for years. When her condition worsened, she pleaded with him to end her life. He administered a fatal injection.
Cox was found guilty of attempted murder but given a suspended sentence. This case shows courts enforcing the moral principle that life must not be intentionally ended, while also showing leniency through sentencing to reflect the moral complexity of the situation.
R v Dudley and Stephens (1884)
Facts: The defendants were shipwrecked and stranded in a small boat with a young cabin boy. When food ran out, they drew straws to determine who would be killed so the others could eat him. They killed and ate the cabin boy, then were rescued.
Decision: The court stated: "Law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence."
Significance: Despite the extreme circumstances and the defence of necessity, the defendants were convicted of murder. This demonstrates natural law thinking by refusing to allow extreme circumstances to override the fundamental moral principle that innocent life cannot be intentionally taken.
Remember!
Core Concepts:
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Laws are objective rules made by formal institutions and enforced by the state, while morals are subjective personal codes of values that evolve with society and are enforced through social condondemnation.
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The UK is a pluralist society with diverse moral views based on different cultures, religions, and beliefs. This creates tension when deciding whether law should enforce particular moral standards.
Lord Devlin's Framework:
- Lord Devlin's four principles provide guidance on when law should enforce morality: individual freedom must be consistent with society's integrity; changes should be slow; privacy must be respected; law sets minimum standards only.
Two Philosophical Approaches:
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Positivism (Aristotle, Bentham, Mill, Hart, Wolfenden Report) argues that law and morality should be kept separate, with law only intervening to prevent harm to others. Privacy and individual autonomy should be respected.
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Natural law theory (Aquinas, Stephens, Devlin, Fuller, Simonds) argues that law should enforce moral values to protect the moral welfare of society. Some acts should be illegal because they are immoral.
Key Case Examples:
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Cases like R v Wilson (privacy respected) and Gillick (autonomy respected) reflect positivism
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Cases like R v Brown (consensual harm prohibited), Shaw v DPP (protecting public morals), and R v Dudley and Stephens (sanctity of life) reflect natural law theory