Legal Enforcement of Moral Values (OCR A-Level Law): Revision Notes
Legal enforcement of moral values
Introduction to the debate
There is significant academic and legal debate about whether the law should be used to enforce moral values. This is a fundamental question in legal philosophy that affects how laws are created and applied in society. The debate centres on two competing philosophies: positivism and natural law theory.
Understanding this debate is crucial because judges and lawmakers frequently face difficult decisions where legal and moral considerations intersect, particularly in cases involving life and death, consent, privacy, and individual autonomy.
Lord Devlin's four key principles
Lord Devlin developed four important principles that Parliament should consider when deciding which moral offences ought to be prohibited by law:
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Individual freedom and society's integrity - The individual freedom permitted must be consistent with maintaining the integrity of society as a whole.
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Slow to change - While the limits of tolerance are not fixed, law-makers should be cautious and slow when changing laws that protect morality.
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Respect for privacy - Privacy must be respected as far as possible when considering whether to criminalise conduct.
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Minimum standards - The law is concerned with setting minimum rather than maximum standards of behaviour. In other words, the law establishes a baseline of acceptable conduct, but society's moral standards should aim higher than this legal minimum.
These principles attempt to balance individual liberty against society's interest in maintaining moral standards through law. They provide a framework for lawmakers to assess whether moral conduct should be subject to legal sanctions.
Positivism
Positivism maintains that laws and morals should be kept separate. According to this view, the law should not be used to enforce moral values unless there is a compelling practical reason to do so.
Key theorists for positivism
Aristotle argued that the law should be reason free from passion, suggesting that legal decisions should be based on rational principles rather than moral emotions.
Jeremy Bentham was highly critical of natural law theory, dismissing it as "nonsense upon stilts". He believed that law should be based on practical utility rather than abstract moral principles.
John Stuart Mill's Harm Principle
Mill developed the influential harm principle, stating that 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. According to Mill, a person's own good, either physical or moral, is not sufficient justification for legal intervention.
H.L.A. Hart questioned whether it is morally permissible to enforce morality through law. He argued that laws which merely enforce morals should cease to exist. In his view, laws should only intervene where immorality causes harm to society or harm to the individual concerned.
Wolfenden Report (1957) concluded that there must be a realm of private morality and immorality which is, in brief and crude terms, not the law's business. This report was influential in the decriminalisation of homosexuality.
Key cases illustrating positivism
R v Wilson (1996)
In this case, the defendant branded his initials on his wife's buttocks with a hot knife at her request. When her skin became infected, the doctor reported the matter to the police and the husband was charged with actual bodily harm (ABH).
Outcome: Russell LJ held that consensual activity between husband and wife, in the privacy of the matrimonial home, is not a proper matter for criminal investigation, let alone criminal prosecution. This case demonstrates the positivist emphasis on privacy and consent.
R v Human Fertilisation and Embryology Authority ex parte Blood (1997)
Blood's husband lapsed into a coma. Samples of his sperm were taken for later artificial insemination, but he died shortly after the samples were obtained.
Outcome: Because the husband's consent had not been given, Blood was not permitted to use the sperm under UK law. However, she later used an EU rule and was permitted to use it abroad. This case shows the strict application of consent requirements, even in emotionally difficult circumstances.
Gillick v West Norfolk and Wisbech Health Authority (1986)
Mrs Gillick sought a declaration that it would be unlawful for a doctor to prescribe contraceptives to girls under the age of 16 without the knowledge or consent of the parent.
Outcome: The court refused to grant it, setting out guidelines for when children can give consent to medical procedures. This is now known as Gillick competency. The case demonstrates the law's willingness to recognise individual autonomy over parental authority in certain circumstances.
Evans v UK (2007)
Evans wanted to use embryos fertilised by her ex-partner, but he refused consent.
Outcome: Despite the emotional issues at stake, the court held that consent must be applied strictly. This case shows that even where there are strong moral arguments for allowing something, legal principles such as consent must prevail.
Natural law theory
Natural law theory maintains that the law should be used to enforce moral values. According to this view, there is an inherent connection between law and morality, and the law has a legitimate role in promoting moral behaviour.
Key theorists for natural law theory
St Thomas Aquinas described natural law theory as a "dictate of right reason", suggesting that moral truths can be discovered through rational thought and should inform legal rules.
James Fitzjames-Stephens argued 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 a strong view that law should actively suppress immoral conduct.
Lord Devlin's Position
Lord Devlin stated that the suppression of vice is as much the law's business as the suppression of subversive activities. He famously argued that it is an error of jurisprudence to separate crime from sin.
Lon Fuller referred to laws made by Germany under the Nazi regime, arguing that some laws are so immoral that they must be invalid. This suggests there are moral limits on what can legitimately be called "law".
Nigel Simonds stated that the purpose of the law is to conserve not only the safety and order but also the moral welfare of the state. This reflects the view that law has a responsibility to uphold society's moral standards.
Key cases illustrating natural law theory
R v Brown (1993)
The defendants engaged in sadomasochism including physical torture. Even though the activities were consensual, the defendants were convicted.
Outcome: Lord Templeman stated that pleasure derived from the infliction of pain is an evil thing. This case demonstrates the law's willingness to criminalise conduct on moral grounds, even where there is consent and no lasting harm.
Shaw v DPP (1961)
The defendant published a ladies' directory of the services offered by prostitutes.
Outcome: 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 established the common law offence of conspiracy to corrupt public morals.
Knuller v DPP (1972)
The defendant published a magazine in which homosexuals placed advertisements to meet other like-minded individuals and engage in sexual practices.
Outcome: The House of Lords doubted the correctness of the decision in Shaw but declined to depart from it. This shows the difficulty courts face in overturning established moral precedents, even when social attitudes have changed.
R v Gibson and Sylveire (1990)
The defendants exhibited a pair of earrings made with freeze-dried human foetuses at the Young Unknowns Gallery in London.
Outcome: This was the first occasion on which the charge of outraging public decency had been preferred in more than 80 years. The case demonstrates the revival of old common law offences based on moral grounds.
Pretty v DPP (2001)
Pretty attempted to change the law so she could end her own life because of the pain and problems caused by her terminal illness, motor neurone disease.
Outcome: Lord Bingham stated that the task of the court 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. Despite the moral arguments presented, the court refused to allow assisted suicide.
R v Cox (1992)
Cox was a consultant who had been treating the victim for years. She pleaded with him to end her life. He administered a fatal injection to stop her heart.
Outcome: The defendant was found guilty of murder but given a suspended sentence. This case illustrates the tension between legal rules and moral sympathy in cases of assisted dying.
R v Dudley and Stephens (1884)
The defendants were shipwrecked and stranded in a small boat with a young cabin boy. When food ran out, the defendants killed and ate the cabin boy. They were convicted of murder.
Key principle: The court held 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 case demonstrates that even in extreme circumstances, certain moral standards (such as the prohibition on murder) must be upheld by law.
Practical difficulties in applying these theories
Pluralist society
It is difficult in practice to take a purely theoretical position on this argument, particularly because we live in a pluralist society. A pluralist society is one where people hold many different moral, religious and cultural views. This makes it challenging to identify a single set of moral values that the law should enforce.
Judges are often faced with difficult decisions that involve matters of life and death. In such cases, the theoretical arguments become much harder to apply in a clear-cut way.
The Case of Conjoined Twins (2000)
In 2000, the case of conjoined twins Jodie and Mary came before the court. The only way to save Jodie's life was for doctors to perform surgery which would kill Mary.
Lord Justice Ward's statement: "This is a court of law, not a court of morals."
This illustrates the difficulty courts face when legal and moral considerations conflict.
Political considerations
Because matters involving moral enforcement can be very divisive, political parties and politicians often prefer not to publicly state their positions for fear of alienating voters. This can make it difficult to achieve legal reform in controversial areas.
Parliament sometimes uses Private Members' Bills as a mechanism to pass controversial law without political parties having to state an official position. This allows individual MPs to propose legislation on morally contentious issues (such as abortion or assisted dying) without their party being held responsible for the outcome.
Evaluation points
When evaluating the relationship between law and morality and whether the law should enforce moral values, consider the following points:
Difficulty of defining moral values - In a pluralist society, it is extremely difficult to identify which moral values should be enforced by law. Different religious, cultural and philosophical traditions may have conflicting views on issues such as abortion, euthanasia, or sexual conduct.
Political avoidance - Politicians often avoid passing controversial laws that will divide society because such laws could change the way people vote. This can lead to important moral issues being neglected by the legal system.
Use of Private Members' Bills - The use of Private Members' Bills allows controversial laws to be passed without political parties having to state their position. While this can facilitate necessary reform, it may also mean that important moral issues are not given sufficient parliamentary time and debate.
Practical judicial difficulties - Judges face enormous practical and emotional challenges when deciding cases involving life and death, consent, and personal autonomy. Theoretical positions may provide little guidance in such cases.
Balance between liberty and harm - There is an ongoing tension between protecting individual liberty (the positivist position) and protecting society from harm (which may justify some moral enforcement).
Exam guidance
For essay questions
When answering questions about whether the law should enforce moral values:
Demonstrate knowledge (AO1) by explaining the two main theories (positivism and natural law) and identifying key theorists for each position.
Analyse and evaluate (AO3) by weighing up the arguments on both sides, using case examples to illustrate when each approach has been applied.
Reach a reasoned conclusion - As long as your conclusion is supported by a balanced analysis of the arguments, it does not matter whether you agree or disagree with moral enforcement. What matters is that you can justify your position.
If an exam question contains the words "should" or "ought", you need to weigh up the arguments and write a conclusion based on your analysis.
For two-part questions
If a question asks you to discuss both the relationship between law and morality AND whether the law should enforce moral values, remember to answer both parts. Students often focus on one aspect and neglect the other.
Command words
- Discuss - requires you to explore different viewpoints and reach a balanced conclusion
- Evaluate - requires you to assess the strengths and weaknesses of different positions
- Analyse - requires you to break down the issues and examine them in detail
Remember!
Key Points to Remember:
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Positivism maintains that law and morality should be kept separate; the law should only intervene to prevent harm to others or to society.
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Natural law theory maintains that the law should be used to enforce moral values; there is an inherent connection between law and morality.
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Lord Devlin's four principles provide guidance on when moral offences should be prohibited: individual freedom must be consistent with society's integrity; law-makers should be slow to change; privacy must be respected; and the law should set minimum rather than maximum standards.
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Key positivist cases include R v Wilson (privacy in the matrimonial home), Gillick (individual autonomy for competent minors), and Evans v UK (strict application of consent).
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Key natural law cases include R v Brown (criminalising consensual sadomasochism), Shaw v DPP (conspiracy to corrupt public morals), and R v Dudley and Stephens (moral limits even in extreme circumstances).
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Living in a pluralist society makes it difficult to identify which moral values should be enforced by law, as different groups hold different moral beliefs.