Relationship Between Laws and Morals and Its Importance (OCR A-Level Law): Revision Notes
Relationship Between Laws and Morals and Its Importance
Understanding morals and their relationship with law
Morals are individual value systems based on personal beliefs about right and wrong. They involve judgments of fault and guide how people should behave. For example, most people consider lying to be morally wrong, even when it is not illegal.
While lying is generally considered morally wrong, the law only prohibits specific forms of lying in particular contexts (such as perjury in court or fraud in business transactions). This demonstrates how moral and legal boundaries differ in scope.
Pojman's five functions of morality
Legal philosopher Louis Pojman identified five key functions that morality serves in society:
- Preventing societal breakdown – Morality provides a framework that holds communities together.
- Reducing human suffering – Moral codes encourage compassion and discourage harm.
- Promoting human flourishing – Morality aims to help individuals and communities thrive.
- Resolving conflicts fairly – Moral principles provide guidance for settling disputes in a just manner.
- Assigning accountability – Morality enables society to praise good conduct and condemn wrongdoing.
Overlap and tension between law and morality
In many situations, legal rules and moral principles overlap. Murder, for instance, is both prohibited by law and considered morally reprehensible by most people. This convergence reflects society's shared values about protecting human life.
However, tensions can arise when legal and moral rules conflict. Issues such as abortion and euthanasia demonstrate this tension clearly. These matters involve deeply held moral beliefs that differ across religious, cultural and philosophical perspectives, yet the law must provide a single, enforceable position.
Common Areas of Tension:
When moral and legal rules conflict, society faces difficult questions about which values should be legally enforced. Issues like abortion and euthanasia highlight this challenge – while people hold sincere and conflicting moral views, the law must establish clear, enforceable rules that apply to everyone. This creates inevitable tension in a diverse society.
Diversity of moral views in a pluralist society
What is a pluralist society?
The UK operates as a pluralist society, meaning it encompasses diverse groups with different characteristics:
- Multiple cultures
- Various races
- Different religions
- Competing political parties
- Multiple languages
- Diverse ethnic origins
- Varied customs and traditions
- Different social classes
Pluralism refers to the coexistence of multiple states or groups in harmony, particularly where a common set of rights protects everyone. In a progressive pluralist society, this diversity should be actively celebrated, not merely tolerated.
Challenges for law in a pluralist society
Pluralism creates a fundamental question: should the law involve itself in matters of moral significance to specific groups? Different communities may hold conflicting moral positions, each deserving respect. This raises difficult questions about which values the law should enforce.
The Central Challenge of Pluralism:
In a pluralist society, the law faces a critical dilemma: how can it respect diverse moral viewpoints while still providing clear, enforceable rules? When different communities hold conflicting moral positions – each potentially valid within their own framework – determining which values deserve legal enforcement becomes extraordinarily complex.
Moral pluralism, absolutism and relativism
Moral pluralism recognises that conflicting moral viewpoints can each be worthy of respect. It requires examining issues from multiple moral perspectives before reaching a conclusion. This approach sits between two extremes:
Moral absolutism claims there is only one correct moral answer to any question. This rigid approach does not accommodate diverse perspectives.
Moral relativism claims there are no wrong moral answers – all viewpoints are equally valid. This approach risks providing no moral guidance at all.
Moral pluralism offers a middle path, acknowledging legitimate differences while still enabling moral judgments to be made.
Understanding the Three Approaches:
- Absolutism = One right answer (too rigid for diverse societies)
- Relativism = All answers equally valid (provides no moral guidance)
- Pluralism = Multiple legitimate perspectives can exist (balanced approach)
Moral pluralism provides a practical framework for navigating moral disagreements in a diverse society without abandoning the ability to make meaningful moral judgments.
Comparing laws and morals
Understanding how laws and morals differ is essential for analysing their relationship:
| Aspect | Laws | Morals |
|---|---|---|
| Creation | Made by formal institutions such as Parliament and the courts | Evolve naturally as society develops, with no formal creation process |
| Speed of change | Can be instantly made or repealed (though this often requires significant time and public pressure) | Change with society's attitudes through a slow transitional period (though rapid moral change can occur, as in the 1960s) |
| Certainty | Existence can be clearly established | Only vaguely defined with general agreement on some issues but not others |
| Enforcement | Breaking laws attracts sanctions, punishments or remedies enforced by the state | Breaching moral standards results in social condemnation rather than organised enforcement |
| Relationship to society | Society's attitude to the law is technically irrelevant (though in democracies this can only be short-term) | Morals directly reflect society's values and beliefs |
| Obligation | Obligatory – must be followed | Subjective – varies between individuals |
| Fault | Not necessarily fault-based (strict liability offences exist) | Fault-based – concerned with culpability |
This comparison reveals both the overlap and differences between legal and moral rules. Common law, for example, may have its basis in morality. Religious texts like the Bible and Koran have attempted to create formal moral codes. The relationship between law and morality is therefore complex and dynamic.
Legal enforcement of moral values
A central debate in jurisprudence concerns whether the law should actively enforce moral values or remain neutral on moral questions.
Lord Devlin's four principles
Lord Devlin proposed four key principles that Parliament should consider when deciding which moral issues should be prohibited by law:
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Individual freedom and societal integrity – The freedom allowed to individuals must be consistent with maintaining society's integrity.
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Cautious law reform – The limits of tolerance are not fixed, but lawmakers should be slow to change laws that protect morality, recognising the importance of moral traditions.
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Respect for privacy – Privacy must be respected as far as possible. The law should not intrude unnecessarily into private conduct.
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Minimum standards – The law is concerned with setting minimum rather than maximum standards of behaviour. Legal rules establish a baseline, but society's moral expectations should be higher.
These principles suggest the law should enforce morality, but with significant limitations protecting individual freedom and privacy.
Devlin's Balanced Approach:
Lord Devlin's principles acknowledge that while law can enforce moral values, it must do so with restraint. The law should protect society's integrity while respecting individual freedom and privacy. Crucially, legal standards represent a minimum baseline – society's moral expectations should always be higher than what the law requires.
Positivism: separating law and morality
Positivism represents a contrasting philosophical approach, maintaining that laws and morals should be kept strictly separate. This theory has been developed by numerous influential thinkers:
Key positivist theorists
Aristotle argued that the law should be reason free from passion, suggesting legal rules should not be influenced by emotional moral judgments.
Jeremy Bentham dismissed natural law theory (which connects law and morality) as nonsense upon stilts, arguing law should be based on utility rather than moral principles.
John Stuart Mill articulated the harm principle:
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 suggests law should only intervene to prevent harm to others, not to enforce moral improvement on individuals.
Mill's Harm Principle in Practice:
Mill's harm principle provides a clear test for legal intervention: does the conduct harm others? If not, the law should not interfere, even if society considers the conduct immoral. This principle protects individual autonomy while allowing legal intervention where genuine harm occurs.
H.L.A. Hart questioned whether it is morally permissible to enforce morality through law. He argued:
Laws that merely enforce morals should cease. Laws should only intervene where immorality causes harm to the society or harm to the individual concerned.
Hart's approach accepts legal intervention when moral wrongs cause concrete harm, but rejects enforcing morality for its own sake.
The Wolfenden Report 1978 examined homosexuality and prostitution, concluding:
There must be a realm of private morality and immorality which is, in brief and crude terms, not the law's business.
This report influenced the decriminalisation of homosexuality, reflecting positivist principles about limiting law's reach into private moral conduct.
Worked Example: Applying Positivist Principles
Consider a person who chooses not to donate to charity despite having wealth:
Moral perspective: Many would consider this morally wrong – the person has means to reduce suffering but chooses not to.
Positivist legal perspective: This conduct causes no direct harm to others and occurs in the private domain of personal choice. Therefore, according to positivist principles:
- Mill's harm principle: No intervention justified (no harm to others)
- Hart's position: No legal enforcement appropriate (no concrete harm caused)
- Wolfenden approach: This is private moral conduct, not the law's business
Result: The law should not compel charitable giving, even if society considers it morally desirable. Legal intervention is not justified under positivist principles.
Positivist principles in practice
Positivism challenges the enforcement of moral values through law by arguing:
- Law and morality serve different functions and should remain separate
- The state should not impose moral views on citizens
- Legal intervention is only justified when conduct harms others
- Private moral choices should remain outside legal regulation
- Law should be based on reason and social utility rather than moral passion
This approach raises important questions about controversial issues like abortion, euthanasia, and assisted dying, where moral beliefs conflict with individual autonomy and legal regulation.
The Positivist Challenge:
Positivism fundamentally questions whether the state has the right to enforce moral standards through law. It argues that legal intervention requires justification beyond moral disapproval – there must be concrete harm to others or society. This principle protects individual freedom but creates difficult questions: what counts as "harm"? Should the law ever reflect moral values? Where should the boundary lie?
Key Points to Remember:
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Morals are subjective personal codes determining right and wrong, serving five key functions according to Pojman (preventing societal collapse, reducing suffering, promoting flourishing, resolving conflicts, and assigning accountability)
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The UK is a pluralist society with diverse cultures, religions and values, requiring a balanced approach to morality between absolutism and relativism
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Laws and morals differ fundamentally: laws are formally created and enforced by the state, while morals evolve naturally and are enforced through social pressure
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Lord Devlin's principles suggest law should enforce morality with limitations protecting individual freedom, privacy and setting only minimum standards
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Positivism argues laws and morals should be kept separate, with legal intervention only justified to prevent harm to others rather than to enforce moral improvement