Evaluation of Law and Morality (OCR A-Level Law): Revision Notes
Evaluation of Law and Morality
Introduction to evaluating law and morality
When examining the relationship between law and morality, you need to consider how well (or poorly) they interact in practice. This evaluation requires you to demonstrate both knowledge of the key principles and the ability to analyse competing viewpoints before reaching a balanced conclusion.
In exam questions, you'll typically see phrases like "Discuss the extent to which..." This signals that you must:
- Demonstrate knowledge and understanding (AO1) of the relevant principles, theories and cases
- Analyse and evaluate (AO3) different theories, concepts and issues
- Come to a reasoned conclusion supported by evidence and argument
Understanding the assessment objectives (AO1 and AO3) is crucial for exam success. You cannot achieve high marks by simply describing theories - you must demonstrate critical analysis and evaluation throughout your answer.
Key cases demonstrating law and morality tensions
Understanding how courts have dealt with moral issues helps illustrate the complex relationship between legal rules and moral standards. The following cases show different judicial approaches to moral questions.
Cases involving sexual morality and consent
R v Brown (1993) involved defendants who engaged in sadomasochistic practices including physical torture. Despite the participants consenting, the House of Lords upheld their convictions. Lord Templeman stated that "pleasure derived from the infliction of pain is an evil thing," demonstrating how the law sometimes imposes moral judgments even where there is no obvious victim. This case shows the law enforcing a particular moral standard about acceptable sexual conduct.
Shaw v DPP (1961) concerned a defendant who published a directory listing prostitutes and their services. The court held that "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 judgment explicitly states that law has a role in upholding society's moral values, reflecting a natural law approach.
The Shaw decision remains controversial because it suggests courts can create new offences based on moral judgments. This appears to conflict with the principle that Parliament, not judges, should define criminal conduct. The case highlights the ongoing tension between judicial restraint and moral enforcement.
Knuller v DPP (1972) involved a magazine containing advertisements for homosexual men to meet. The House of Lords expressed doubts about the correctness of the Shaw decision but felt unable to depart from it, showing how legal precedent can preserve moral judgments even when societal attitudes have changed.
Cases involving public decency
R v Gibson and Sylveire (1990) saw defendants exhibit earrings made from freeze-dried human foetuses at an art gallery in London. This was the first prosecution for outraging public decency in over 80 years, demonstrating how the law can revive old offences to address conduct that offends prevailing moral standards.
Cases involving end-of-life decisions
Pretty v DPP (2001) concerned a woman with motor neurone disease who sought to change the law to allow her husband to help her die without prosecution. Lord Bingham emphasised that the court's task was "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." This illustrates the positivist approach where judges apply existing law rather than moral preferences.
R v Cox (1992) involved a consultant who administered a fatal injection to a patient suffering unbearable pain who had begged him to end her life. Though convicted of murder, Cox received only a suspended sentence, suggesting the law recognised the moral complexity of the situation even while maintaining the legal prohibition.
The contrast between Cox's conviction (upholding the law) and his suspended sentence (recognising moral complexity) illustrates how the legal system can acknowledge moral dilemmas while maintaining formal legal rules. This approach allows for both consistency in legal principles and flexibility in individual cases.
Cases involving necessity and morality
R v Dudley and Stephens (1884) concerned shipwrecked sailors who killed and ate a cabin boy to survive. Despite the extreme circumstances, they were convicted of murder. The court stated that "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." This important principle acknowledges both the distinction and connection between law and morality.
The principle established in Dudley and Stephens - that law and morality are distinct but not completely separate - remains fundamental to understanding their relationship. This case is essential for any evaluation of how law and morality interact.
Core evaluation points for law and morality
When evaluating the relationship between law and morality, you should consider several key themes that recur in academic debate and examination questions.
The challenge of pluralist societies
Modern Britain is a pluralist society, meaning it contains people with widely different moral, cultural and religious beliefs. This creates significant challenges when the law attempts to reflect or enforce moral values. What one group considers immoral, another may view as acceptable or even virtuous.
The law struggles to please everyone precisely because there is no universal agreement on many moral issues. Questions about abortion, euthanasia, drug use, prostitution and sexual conduct all involve competing moral perspectives. When law chooses to enforce one particular moral view, it inevitably disappoints or oppresses those who hold different values.
Pluralism creates a fundamental dilemma: should law reflect majority moral views (potentially oppressing minorities) or should it remain neutral on moral issues (potentially failing to maintain social cohesion)? This tension appears throughout debates about law and morality.
This difficulty is particularly acute in areas like:
- Sexual morality, where religious and secular views often conflict
- Beginning and end of life issues, where different cultures and faiths hold varying beliefs about the sanctity of life
- Personal liberty versus public morality, where liberal and conservative philosophies clash
Politicians and controversial legislation
Politicians often avoid introducing controversial laws that touch on moral issues because such legislation can divide society and influence voting behaviour. This creates a paradox: the democratic representatives we elect to make laws are often reluctant to legislate on the very moral issues where guidance is most needed.
Several factors explain this reluctance:
- Electoral consequences: Taking a clear position on moral issues like abortion or euthanasia can alienate significant portions of the electorate
- Party unity: Moral issues often divide political parties internally, making it difficult to maintain a coherent party position
- Media scrutiny: Controversial moral legislation attracts intense public and media attention, increasing political risk
The use of Private Members' Bills
One way controversial moral legislation reaches the statute book is through Private Members' Bills. These are bills introduced by individual MPs rather than by the government. This mechanism allows Parliament to pass laws on moral issues without political parties having to adopt an official position.
Examples of Moral Legislation via Private Members' Bills
Several landmark reforms in British law occurred through Private Members' Bills rather than government legislation:
- The Abortion Act 1967 legalised abortion under certain circumstances, fundamentally changing the legal and moral landscape around reproductive rights
- The Sexual Offences Act 1967 decriminalised homosexual acts between consenting adults in private, a major step toward equality
- The Murder (Abolition of Death Penalty) Act 1965 ended capital punishment, resolving one of the most morally contentious issues in criminal law
These examples demonstrate how Private Members' Bills have addressed controversial moral issues that governments preferred to avoid.
This approach has both advantages and disadvantages. It allows MPs to vote according to their conscience rather than party lines, potentially producing legislation that reflects genuine moral consensus. However, it can also result in important moral laws being passed almost by accident, without the thorough debate and scrutiny that government bills receive.
The pace of moral change versus legal change
Morality in society typically evolves much faster than the law. Social attitudes can shift within a generation, while legal change often lags decades behind. This creates tension where the law appears outdated and out of step with contemporary moral values.
Consider these examples:
- Homosexuality: Social attitudes liberalised rapidly from the 1990s onwards, but key legal reforms (civil partnerships, same-sex marriage) took years to implement
- Cannabis use: Despite significant public support for reform and widespread non-compliance with the law, the legal position remains largely unchanged
- Assisted dying: Opinion polls consistently show majority support for law reform, yet Parliament has repeatedly rejected change
This time lag between moral change and legal reform creates a legitimacy problem. When law enforces standards that society no longer accepts, people may lose respect for legal rules generally. Yet too-rapid legal change without proper deliberation risks implementing reforms that lack sufficient consensus.
This time lag occurs because:
- Legal change requires parliamentary time and political will
- The legal system values stability and predictability
- Reforms must navigate complex legislative processes
- Vested interests may resist change
The consequence is that law sometimes enforces moral standards that substantial sections of society no longer accept, undermining respect for law itself.
Judges and moral decision-making
When applying the law, judges inevitably make decisions that involve moral judgments. However, the judiciary has faced persistent criticism for being drawn from a narrow social background, with judges accused of being "out of touch" with ordinary people's lives and values.
Concerns include:
- Social homogeneity: Judges traditionally come from privileged backgrounds, having attended elite schools and universities
- Age: Senior judges are typically older and may hold more conservative moral views
- Gender and ethnic diversity: Though improving, the judiciary remains disproportionately white and male
- Professional background: Almost all judges were previously barristers, a profession that itself lacks diversity
These criticisms matter because judges exercise significant power when interpreting statutes, developing common law and deciding individual cases. If judges' moral perspectives differ systematically from those of the wider population, the law they apply may not reflect societal values.
However, defenders of the judiciary argue that:
- Judges apply law rather than personal morality (the positivist approach)
- Legal training and experience equip judges to reason impartially
- Judicial independence protects against political pressure to impose particular moral views
- Recent reforms have improved judicial diversity
Theoretical debates: Devlin versus Hart
One of the most important evaluative frameworks concerns the disagreement between Lord Devlin and Professor H.L.A. Hart about whether law should enforce morality.
Devlin's view: law should enforce common morality
Lord Devlin argued that society requires a common morality to maintain social cohesion. Without shared moral standards, society would disintegrate. Therefore, the law has a legitimate role in enforcing moral values, even in matters that might appear private.
Devlin's key arguments include:
- Society is held together by invisible bonds of common thought, including shared moral standards
- If these bonds are weakened, society may collapse
- The law must therefore be permitted to enforce morality to prevent social disintegration
- Society is entitled to protect itself against conduct that threatens its moral fabric
- The test is whether the "right-minded person" (similar to the reasonable person in tort) would consider conduct morally unacceptable
Strengths of Devlin's approach:
- Recognises that shared values contribute to social stability
- Reflects how law has historically enforced moral standards
- Acknowledges that some conduct (like serious violence) is both immoral and harmful to society
- Provides a basis for laws protecting vulnerable people from exploitation
Weaknesses of Devlin's approach:
- Assumes society has a single "common morality" rather than diverse moral views
- Risks tyranny of the majority over minority groups
- Fails to distinguish between moral disapproval and actual harm
- May prevent moral progress by entrenching existing prejudices
- The "right-minded person" test is subjective and may reflect judicial bias
Hart's view: law should respect personal autonomy
Professor Hart took a utilitarian approach, arguing that law should not enforce morality for its own sake. Instead, law should only prohibit conduct that causes harm to others. Individuals should have personal autonomy to make their own moral choices, even if others disapprove.
Hart's key arguments include:
- People should be free to live according to their own values provided they do not harm others
- Legal enforcement of morality causes suffering to those who hold different values
- There is no single "common morality" in pluralist societies
- Law should be based on harm prevention rather than moral enforcement
- Consenting adults should be free to engage in private conduct even if others find it immoral
Strengths of Hart's approach:
- Respects individual freedom and autonomy
- Recognises moral diversity in modern societies
- Focuses on harm rather than disapproval
- Protects minority groups from oppression by the majority
- Promotes tolerance of different lifestyles
Weaknesses of Hart's approach:
- May underestimate the importance of shared values for social cohesion
- The boundary between "harm to others" and "mere immorality" can be unclear
- Some argue that moral degradation itself harms society
- May not adequately protect vulnerable people from exploitation
- Could lead to excessive permissiveness
Application to contemporary issues
This debate remains highly relevant to current controversies:
Applying Devlin vs Hart to Contemporary Issues
Consider how these competing theories would approach current moral debates:
Drug legalisation: Devlin would likely support prohibition to maintain moral standards, arguing that drug use degrades society's moral fabric. Hart would ask whether drug use harms others beyond the user, potentially supporting legalisation with regulations to prevent third-party harm.
Prostitution: Devlin might support criminalisation as morally corrupting to society, regardless of whether individuals consent. Hart would focus on whether it involves exploitation or harm, potentially distinguishing between coerced prostitution (harmful) and voluntary sex work (autonomous choice).
Assisted dying: Devlin would emphasise society's interest in preserving the sanctity of life, viewing legalisation as weakening this fundamental moral principle. Hart would stress individual autonomy and the right to make decisions about one's own death, especially when suffering is unbearable.
Theoretical debates: Fuller versus Hart
Another important evaluation concerns the disagreement between Lon Fuller and H.L.A. Hart about the nature of law itself and its relationship to morality.
Fuller's natural law position
Fuller argued that law contains an "inner morality" consisting of principles that make it genuinely law rather than mere commands. These principles include requirements that laws should be:
- General (applying to classes of persons)
- Promulgated (made public)
- Prospective (not retroactive)
- Clear and understandable
- Free from contradiction
- Possible to obey
- Stable over time
- Consistently applied
Fuller contended that law necessarily incorporates moral purposes and cannot be completely separated from morality.
Hart's positivist position
Hart maintained that law can be identified by formal criteria (rules of recognition) without reference to its moral content. A rule is law if it is made according to the proper procedures, regardless of whether it is morally good or bad.
Hart argued that Fuller's "inner morality" is really just requirements of efficacy (making law work) rather than true moral principles. An evil regime could satisfy Fuller's principles while pursuing immoral ends.
The Fuller-Hart debate has practical implications beyond abstract philosophy. It affects how judges should interpret unclear statutes, influences whether unjust laws should be considered "law" at all, and shapes how lawyers advise on the boundaries of legal obligation.
Evaluation of this debate
This theoretical disagreement has practical implications:
- It affects how judges should interpret unclear statutes
- It influences whether unjust laws should be considered "law" at all
- It shapes how lawyers advise on the boundaries of legal obligation
Students should recognise that both positions have merit and limitations, and that the relationship between law and morality remains contested among legal philosophers.
Natural law versus positivism
The broader debate between natural law theorists and positivists forms a crucial evaluative framework for understanding law and morality.
Natural law: strengths and weaknesses
Natural law theory holds that law should reflect objective moral truths, often derived from reason, religion or human nature. Unjust laws are not truly law and need not be obeyed.
Strengths of natural law:
- Provides a basis for criticising unjust laws and oppressive regimes
- Recognises that law should serve moral purposes
- Explains why some laws command greater respect than others
- Offers protection against legal positivism being used to justify atrocities
- Resonates with common intuitions that law should be just
Weaknesses of natural law:
- Disagreement about what natural law requires (religious versus secular versions differ)
- Risk of imposing particular moral views on diverse societies
- May encourage selective obedience to law
- Difficulty identifying objective moral truths
- Can undermine legal certainty if validity depends on moral judgment
Positivism: strengths and weaknesses
Legal positivism holds that law is whatever is created by recognised legal procedures, regardless of its moral content. Law and morality are separate, though they may overlap.
Strengths of positivism:
- Provides clear criteria for identifying what the law is
- Maintains legal certainty and predictability
- Recognises that law can be used for immoral purposes
- Allows criticism of law from moral standpoint
- Respects moral pluralism by not imposing particular values
Weaknesses of positivism:
- May seem to legitimise unjust laws
- Offers no basis for disobedience even to evil laws
- Ignores how moral considerations influence legal reasoning
- Can appear morally empty or neutral about injustice
- May not adequately explain why law creates obligations
Implications for evaluation
When evaluating law and morality, you should:
- Recognise that both natural law and positivism offer insights
- Consider which approach better explains particular legal issues
- Avoid treating either view as simply "right" or "wrong"
- Apply these theories to concrete examples from your wider studies
- Acknowledge the continuing relevance of this debate
The challenges of enforcing morality through law
A key evaluation point concerns whether law should attempt to enforce moral standards and, if so, how effectively it can do so.
Difficulties in enforcement
Several problems arise when law tries to enforce morality:
Defining the moral standard: In pluralist societies, consensus on moral issues is rare. Whose morality should law enforce? Majority views may oppress minorities.
Practical enforcement: Some moral laws are nearly impossible to enforce effectively. For example, laws criminalising private consensual conduct are difficult to police without unacceptable intrusions into privacy.
Counterproductive effects: Legal prohibition can sometimes increase the very conduct it seeks to prevent. For instance, criminalising drugs may enrich organised crime without reducing drug use.
Undermining respect for law: If law enforces moral standards that many people reject, it may bring law itself into disrepute. Widespread non-compliance signals that law has lost legitimacy.
Resource implications: Enforcing moral laws diverts police and court resources from tackling harmful conduct that enjoys broader consensus.
When law attempts to enforce moral standards that lack widespread support, it creates multiple problems: practical enforcement becomes nearly impossible, resources are wasted, and respect for law generally may be undermined. These practical difficulties must be considered alongside theoretical arguments about whether law should enforce morality.
Arguments for legal enforcement of morality
Despite these difficulties, several arguments support using law to uphold moral standards:
- Some shared moral values are essential for social cohesion
- Law has an educative function, teaching citizens about right and wrong
- Vulnerable people may need legal protection from exploitation
- Certain conduct (like child abuse) is both immoral and harmful
- Without legal enforcement, moral standards may erode
Arguments against legal enforcement of morality
Conversely, strong arguments oppose using law primarily to enforce morality:
- Individuals should be free to make their own moral choices
- Legal coercion causes suffering without corresponding benefits
- Morality is more effectively promoted through education and culture than law
- Legal enforcement of morality has historically oppressed minority groups
- Law should focus on preventing harm rather than enforcing virtue
Middle ground positions
Many scholars argue for intermediate positions:
- Law should enforce a "minimal morality" (basic rules against violence, theft, etc.)
- Legal enforcement is justified where conduct harms vulnerable persons
- Private consensual conduct between adults should generally be permitted
- Law should enforce moral standards only where there is broad consensus
These middle ground positions attempt to balance competing concerns: respecting individual autonomy while maintaining essential social standards, protecting vulnerable people while avoiding excessive paternalism, and promoting social cohesion without oppressing minorities. Most contemporary legal systems adopt some version of these intermediate approaches.
Exam technique for evaluation questions
Understanding how to approach evaluation questions is crucial for success.
Question structure
Evaluation questions typically ask you to "discuss the extent to which..." or "evaluate whether..." This requires you to:
- Explain the relevant principles and theories (AO1)
- Present arguments on different sides of the issue
- Analyse strengths and weaknesses of different positions
- Use examples from across your course of study
- Reach a reasoned conclusion
Two-part questions
Be alert for questions with two parts, such as: "Discuss the relationship between law and morality and whether the law should enforce moral values."
You must address both:
- The relationship between law and morality (descriptive)
- Whether law should enforce moral values (normative)
Failing to cover both parts will limit your marks significantly.
Using "should" or "ought" language
When a question asks what the law "should" or "ought" to do, you must:
- Present theoretical arguments from both sides (Devlin vs Hart, natural law vs positivism)
- Consider practical realities (enforcement difficulties, pluralism, judicial background)
- Weigh the competing arguments fairly
- Reach a conclusion supported by your analysis
Your personal conclusion can agree or disagree with any position, provided you support it with balanced reasoning. Examiners reward well-reasoned arguments, not particular viewpoints. What matters is the quality of your analysis and the strength of your supporting evidence.
Incorporating examples
Questions may explicitly require you to use examples from across your course of study. Draw on:
- Criminal law (mens rea requirements, defences, specific offences)
- Tort law (duty of care, remedies)
- Contract law (fairness doctrines, unconscionability)
- Human rights law
- Any other areas you have studied
These examples demonstrate how law and morality interact in practice and strengthen your analysis.
Key Points to Remember:
- Pluralist societies contain diverse moral views, making it difficult for law to satisfy everyone's moral standards
- Politicians often avoid controversial moral legislation that could divide voters, leading to the use of Private Members' Bills as a way to pass such laws without party positions
- Moral values typically change faster than law, creating tension where legal rules appear outdated
- Judges face criticism for making moral decisions from narrow social backgrounds, potentially being "out of touch" with society
- Devlin argued for enforcing common morality to prevent social disintegration, while Hart favoured personal autonomy unless conduct harms others - understanding both sides of this debate is essential
- Fuller and Hart disagreed about whether law contains inherent moral qualities or is simply a set of rules identified by formal criteria
- Natural law and positivism offer contrasting views on the relationship between law and morality, each with strengths and weaknesses
- Enforcing morality through law is difficult due to problems of definition, practical enforcement, and potential counterproductive effects
- In evaluation questions, present balanced arguments using theoretical debates and practical examples before reaching a reasoned conclusion