Contract Law



Law and Morality

Explanation of law and morality

Law

There are two basic theories of what law means:

Legal positivism

Positivists believe that a law is a legal rule which, if made in the manner recognised by the legislative power in the state, is valid irrespective of its content – in other words that as long an elected parliament debates and makes the law everyone must abide by it.

|Austin is developed the command theory of law. He argued that a law is a command from a sovereign (or now from elected MPs) whom the |

|population at large has to obey, reinforced by punishments if citizens ignore the law. |

Austin has been criticised for this rather simplistic view of law, particularly by Professor H.L.A. Hart, partly because it is difficult to identify who has power to make laws in many states, but also because many areas of law such as contract, which grant powers to people, do not fit neatly into such a definition.

|As a legal positivist, Hart believed in the separation of law and morality. However, he developed a much more sophisticated model than |

|Austin’s to explain the nature of law. There are, he argued, two categories of rules, called primary and secondary rules, which, in |

|combination, form the basis of a functioning legal system: |

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|Primary rules either impose legal obligations, as in criminal law, or they grant powers, as in the power to make a will in the law of |

|succession, or the power to enter into a contract. |

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|Secondary rules are concerned with the operation of primary legal rules. Hart identified three specific secondary rules, the power to make |

|Acts and precedents (rule of recognition), rules to amend or get rid of the legal rules such as overruling (rules of change) and rules to |

|allow courts to settle disputes and interpret the law, such the literal rule (rules of adjudication). |

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|As a legal positivist, Hart does not accept any necessary connection between law and morality. In other words, the validity of a law is not |

|dependent upon its moral acceptability. Even a law that is morally wrong should be obeyed as long as the primary and secondary rules have been|

|followed. |

Natural law

Natural lawyers believe that the validity of man-made laws depends upon their compatibility with a higher, moral authority. There are two main types of natural lawyers, those that believe in laws from a god and those that do not believe in god but that society has an unwritten moral code that laws should follow.

|Thomas Aquinas was a 13th-century Catholic philosopher and theologian. Divine law is concerned with the standards man must conform to in order|

|to attain salvation. These are rules |

|implanted in us by God as part of our nature, and so we have a natural inclination to behave in a way that fulfils our purpose in life. For |

|example, saving life (murder is a crime), creating life and caring for children (Child benefit) and not stealing (theft is a crime). |

Human law is derived by reason from natural law. It is the result of a process of applying the principles contained within natural law to particular geographical, historical and social circumstances.

|Lon Fuller was Professor of Jurisprudence (theory of law) at Harvard Law School. He is known as a natural lawyer in that he rejected legal |

|positivism: he refused to accept the belief that law has no higher authority than that of a sovereign authority. |

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|Fuller views law as serving a purpose. In his case, that purpose is to ‘achieve social order through subjecting people’s conduct to the |

|guidance of general rules by which they’ can control behaviour – you might call it legal conditioning. For laws to be able to achieve this |

|purpose, they must satisfy eight particular principles. These principles make up an ‘inner morality of law’ which Fuller describes as a |

|procedural version of natural law. For example, law should not be retrospective, they must be easy to understand, they must be possible to |

|obey and they must be constant and relatively unchanging. Any law that doesn’t conform to these rules is invalid. |

Morality

Definition: The word morality derives originally from the Latin word mos (plural: mores). The standard meaning of this word is a custom, habit or usage that is determined by man’s will rather than by law.

Cicero: The Roman statesman and orator Cicero once wrote that law and custom (mos) must both be obeyed, illustrating their parity. Custom formed the bedrock of Roman society in Cicero’s day, with duties and obligations balanced by rights and privileges.

Emile Durkheim: a sociologist, referred to a traditional society. In such a society people had a lot in common, e.g. ethnicity, religious beliefs, language. However, by Durkheim’s day, society was becoming more fragmented. First, labour was becoming specialised, with workers developing expertise in increasingly narrow fields, thereby becoming alienated from each other. Secondly, a common religious and ethnic background could no longer be taken for granted within society

The speed of change, Durkheim argued, led to confusion in moral outlooks, and to the breakdown of traditional norms of behaviour. Durkheim called this ‘anomie’ to describe this result. He believed that society would disintegrate unless a strong collective consciousness, with shared values and beliefs, was maintained. All of these factors are more and more apparent in pluralist societies today, i.e. different religions or no religion, different languages and ethnicity, different sexuality.

The relationship between law and morality

The theorist Salmond argued that laws can only be acceptable where both morality and the law converge. He called this the theory of Interaction between Interlocking Circles.

Salmon said that in any legal system there will be some overlap between legal and moral rules.

This is called Primary Law where such crimes as murder and theft are said to be placed.  It is this primary law that suggests to us that law and morality are one and the same thing.

Overlap/Primary

1. They are both concerned with setting standards, which are essential for governing the behaviour of individuals within society.

|Example, in order to avoid unnecessary death and injury, the law requires us to drive on the left (Road traffic Act). However, it |

|is a long-established custom, part of our morals that drivers slow down to allow ambulances to pass when their emergency lights are|

|flashing. Both rules are concerned with the behaviour of drivers and the saving of life, primary law according to Salmon. |

2. Legal and moral rules employ similar language: they distinguish between right and wrong, and they speak of duties, obligations and responsibilities.

|Example, murder is regarded as wicked under both the legal (Mandatory life sentence under the Abolition of death penalty Act 1965) |

|and moral codes (thou shall not kill in the bible) of conduct; parents have a legal duty and a moral duty to ensure that their |

|young children are provided with shelter and nourishment. |

3. Law and morality often coincide or overlap

|Example, the Ten Commandments from the bible continue to serve as a moral code for many today. A number of commandments have been |

|enshrined in Law: ‘Thou shalt not kill’, is reflected in the common law on murder; the command: ‘Thou shalt not steal’, is |

|currently contained within ss1–6 of the Theft Act 1968; and the principle of the virtue of honesty, which lies behind the command |

|not to give false witness, can be seen in the development of the law in areas such as fraud (crime), misrepresentation (contract), |

|and defamation (tort). |

Divergence – where law and morals are at odds

1. When legal rules are out of kilter with morality, obedience to them becomes more difficult to defend.

|Example: It might be argued that strict liability offences are like this. In Smedleys Ltd v Breed (1974), the discovery of a |

|caterpillar in a tin of peas does not seem to breach any moral rule, nor does the selling of a lottery ticket to a 15-year-old boy |

|who had the appearance of someone much older, Shah & Shah. It is therefore not surprising that the principle of strict liability is|

|controversial: legal rules are given greater validity by their moral content. The same may be said for Road traffic rules such as |

|parking offences which the public feel are not morally reprehensible. For these Laws many feel they have little moral benefits so |

|would fail to fall under Salmons primary law. |

2. There are many moral rules which are not laws.

|Example: There is no liability in English criminal law for omissions, unless the failure falls within one of the recognised |

|exceptions where there is a duty to act, such as a duty to children (R v Gibbons and Proctor (1918)). In other words, there is no |

|requirement in English law to act as the ‘good Samaritan’. So if we stand by and watch a man drown even though we could have saved |

|him there is no legal obligation to assist but many people would find this morally indefensible. |

3. Sometimes a defendant will accept the existence of a moral obligation, but argue that this does not imply any legal liability, eg R

|Example: R v Webster (2006). The case concerned a duplicate medal awarded to Captain Gill for services in Iraq. Captain Gill |

|received a medal early in 2005, but six months later received an unsolicited duplicate medal. He gave the duplicate to his staff |

|support assistant, Webster, who promptly sold it on eBay for £605. Webster accepted that he had a moral obligation to return the |

|medal to the medals office, but did not accept he was under any legal obligation to do so. However, the court decided that the |

|medals office retained an interest in this particular duplicate medal and was therefore entitled to call for its return, he was |

|found G of theft. However, many would argue that his senior officer negated his legal liability by giving him the medal. |

4. The disputes over Law and morality issues are often dealt with differently with Law often being compulsory.

|Example: In some cultures forced marriages are seen as morally acceptable but in the UK such actions can actually be regarded as criminal. |

|Under the Anti-social Behaviour, Crime and Policing Act 2014 it is now a criminal offence to force someone to enter a marriage with 1300 cases|

|being reported in 2014. Law can be seen to be about enforcement of rules regardless of a person’s moral view on a matter. As society becomes |

|more pluralistic Durkheim would say Laws and morality will become less able to satisfy Salmond’s primary law model. |

The influence of law and morality upon each other

Changing moral values can lead to developments in the law.

Rape within marriage

Sir Matthew Hale (famous judge) in 1736 had declared that ‘a man cannot rape his wife’. This was based upon the doctrine of implied consent, i.e. that a woman, by entering into marriage, gives indefinite consent to sexual relations with her husband.

During the 20th century the courts succeeded in removing this immunity where there was a legal separation order (R v Clarke (1949)), and where a non-molestation order had been imposed (R v Steele (1977)). In these decisions the courts were eager to limit the moral outrage that an acquittal would arouse.

In R v R (1991), a case involving a recently separated married couple. Before the case arrived at the House of Lords on appeal, the Law Commission had produced a report recommending that ‘the present marital immunity be abolished in all cases’. The House of Lords followed this recommendation. Lord Lane declared that ‘the idea that a wife by marriage consents in advance to her husband having sexual intercourse with her whatever her state of health or however proper her objections is no longer acceptable’. In this way the law eventually caught up with perceived public morality.

Abortion

The Abortion Act 1967 represents an area of statutory reform introduced as a result of public concern over the existing law. Under s58 of the Offences against the Person Act 1861, abortion was punishable by up to life imprisonment, even if performed for good medical reasons (still law today). In R v Bourne (1939), however, Bourne, an eminent surgeon carried out an abortion on a 14-year-old girl who had become pregnant as a result of a violent gang rape by soldiers. At his trial, Bourne argued that the operation had been necessary to preserve the mental health (but not the life) of the girl. The trial judge proved sympathetic to this argument. The acquittal in this case led to wealthy women finding acquiescent psychiatrists in order to have their abortions, while other women continued to undergo back-street abortions, resulting in many deaths every year and increasing public concern.

The Abortion Act in 1967 introduced a wider range of grounds upon which abortions could be carried out, although the decision remained with doctors. Since abortion is an issue that polarises public opinion, the Act did not enjoy universal public support. However, the law had changed in response to changing public concerns. However, these changes are not reflected in all of societies view with many people still campaigning against abortion and for the rights of the unborn child.

Changes in the law can produce changes in morals

Homosexuality

One of the most heavily legislated areas in the last 50 years has been the law on homosexuality. In 1957, the Wolfenden Report recommended that ‘homosexual behaviour between consenting adults in private should no longer be a criminal offence’.

Ten years later the Sexual Offences Act decriminalised homosexuality for those of voting age. 25yrs after this the age of consent was reduced to 18 in the Criminal Justice and Public Order Act 1994, but only six years until it was further reduced to 16 under the Sexual Offences (Amendment) Act 2000, thereby equalising the age of consent for heterosexual and homosexual activity. This last reform attracted determined opposition within the House of Lords, and the powers of the Parliament Acts had to be invoked to secure passage of the measure.

Then followed the Civil Partnership Act 2004 allowing same sex unions to be legally recognised and currently the Marriage (Same Sex Couples) Act 2013, which allows same sex marriage. However, there was significant moral opposition to the latter legislation with 1 million or more of the population petitioning against the change and religious groups gaining legal exceptions so they are not forced either into allowing such ceremonies. It is a testament to the opposition to this legislation that the Act contains sections protecting those who disagree with the legislation on religious grounds to be protected from any prosecution from making public these views (including teachers in class) on the basis of the Equality Act 2010 and Art 9 of the ECHR (right to freedom of expression).

Conclusion

Clearly even with what Durkheim would see as an increasingly pluralistic society many of the areas where law and morality converge have not changed such as many criminal offences, such as murder or theft. Diverse religions all believe such laws are morally defensible and so would atheists, natural lawyers such as Fuller and Positivists such as Hart. The biggest areas where law and morals appear to be diverging are on issues where science and social change is outpacing the moral views of society as a whole, e.g. technology allowing DNA enhancements of crops, animals and human beings or the protection of freedom of speech.

Should law reflect moral values?

John Stuart Mill

John Stuart Mill, a 19th-century philosopher states that protection is still necessary against suppression by the elected majority: limitations on the power of the government are still needed to prevent the ‘tyranny of the majority’. This is a libertarian view.

Mill accepted that the state should make some laws which interfered with an individual’s liberty and use what he termed the ‘harm principle’ as the appropriate test to be used when considering this issue. The harm principle says the law should only intervene where individual’s positive actions (not omissions) are likely to cause harm to others. Mill would therefore argue that morality shouldn’t be reflected in laws except where a person’s positive actions would affect others.

|For example, society has no right to interfere with drunkenness itself as it causes no harm, morality should not be reflected in law. However,|

|it does have the right to interfere where a man, through his drunkenness, commits a crime such as ABH in the case of Majweski. This then |

|becomes a matter of public morality and harming an innocent party is more important than individuals right to do this, Mills harm principle. |

|If all Majweski did, however, was to get so drunk that he fell over or was noisy then the liberty of the individual is too precious to be |

|sacrificed merely to ease another’s feeling of revulsion or repugnance, so no ‘harm’ and therefore morality should not be reflected in the |

|law. |

The Hart–Devlin debate – IMPORTANT!

Devlin – Law should reflect society’s morals

In the 20th century it blossomed in the debate between an eminent Law Lord, Patrick Devlin, and the academic H.L.A Hart, a debate sparked by the publication in 1957 of the Wolfenden report on homosexuality and prostitution. The report said there ‘must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business’. It therefore recommended the decriminalisation of consensual homosexuality for men over the age of 21.

Lord Devlin said ‘without shared ideas on politics, morals, and ethics, no society can exist’. Society, therefore, is constituted in part by its morality. Society therefore has the right to defend itself against immorality, even when done in private. This is because he felt this would permeate into public life. He was a legal moralist which is similar to that of the natural law principle.

|Example, the growth of adult pornography has increased significantly since the introduction of the internet so even though this is done in |

|private Devlin would argue that it would be classed as immoral and effect public life, therefore law should outlaw this. So the Sexual |

|Offences Act 2003 has criminalised so called ‘grooming’ where an adult befriends a child on the internet with the purpose of getting them to |

|perform some form of pornographic Act and clearly signposted websites that sell pornography even to adults. |

However, Lord Devlin recognised that there are limits to the right of society to interfere with private immoral conduct when making laws: ‘there must be toleration of the maximum individual freedom that is consistent with the integrity of society’. He accepted that personal preferences, or likes and dislikes, should not form the basis for decisions about what immoral conduct should be outlawed.

He developed an objective test, that of the reasonable or ordinary man, to help decide where the boundaries are to be drawn: only where immoral conduct is regarded by this ordinary man with ‘intolerance, indignation or disgust’, should it be prohibited by law.

Devlin’s RM test is a relative rather than absolute morality test, as it is not based upon any higher authority regarding good and bad, or right and wrong. It would allow for the continuation of practices that might be regarded as morally repugnant by other societies. It is also current to the views of society today, i.e. the RM of today.

|For example, it could be used to preserve practices such as polygamy or slavery as long as they were not regarded with intolerance, |

|indignation or disgust by the ordinary person within the society that practised it. Delvin’s RM would therefore regard homosexuality as |

|immoral even if practiced in private in 1957, as most of the population believed this was the case. Hence Delvin’s view that the Wolfenden |

|report was wrong in stating that homosexuality should be decriminalised. However, Devlin would now state the RM would find homosexuality a |

|private matter that at least regarded tolerance, he would agree with the Same Sex Marriage Act on this basis, with law and morality being |

|clearly reflected in this act. |

Hart – Laws should not reflect society’s morals

Professor Hart proposed a more limited role for the law in the enforcement of morality. Professor Hart started from the opposite end of the spectrum to Devlin, that society should not interfere with private moral or immoral conduct. Hart was a libertarian and a legal positivist. However, Hart then limited the application of this general principle by sanctioning the enforcement of morality in certain situations. He accepted that law should enforce morals if what happened in society as a true threat, there must be evidence of creating a genuine public nuisance.

|Example: bigamy illustrates Hart’s approach. He said in a country where deep religious significance is attached to monogamous marriage and to |

|the wedding service, the law against bigamy should be accepted as an attempt to protect religious feelings from offence by a ‘public act |

|desecrating the ceremony’. According to Hart, the bigamist is punished not for the act of bigamy itself, but for the offence he causes to the |

|feelings of others. To this extent Hart would agree the Law should reflect morality. |

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|However, Hart agreed with Wolfenden report decriminalising homosexuality as he believed this was a private matter and regardless of Devlins RM|

|morality was irrelevant to deciding the law. |

On some issues he adopted a paternalistic approach. The taking of drugs and consensual euthanasia are two areas where he believed people need to be protected against themselves. So even Hart accepted that in some situations law and morality must be entwined. This stance seems less liberal than that adopted by Mill, who would argue that unless the drug taker or supplier harmed anyone in a positive way the law should not be governed by society’s possible disgust of such matter.

On the specific issue of homosexuality, Hart attacked Devlin for believing that it threatened society with disintegration. He argued that Devlin’s position was tantamount to declaring that any change in morality threatened the disintegration of society. Furthermore, he pointed out

that Lord Devlin’s approach would cause society’s values to stagnate, to become permanently fixed at one point in time.

The Hart–Devlin debate reflected through examples.

|Important - Defence of consent |

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|Example: R v Brown and Others (1993), the defendants were convicted under s47 and s20 of the Offences against the Person Act 1861 after |

|engaging in violent sado-masochistic activities. All these activities were conducted in private, with no complaints from the victims and no |

|medical attention ever sought. There were no permanent injuries. The activities came to the attention of the police as a result of a tape |

|recording the men had made of the event. The House of Lords declared that consent is not available in cases of such serious injuries, subject |

|to certain exceptions of which sado-masochistic behaviour was not one. The judgment is viewed as being based on Delvin’s view that morality |

|should be reflected in law even in private matters with the leading majority judge L Templeman saying, ‘Society is entitled and bound to |

|protect itself against a cult of violence.’ |

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|Lord Mustill, dissenting, echoed the libertarian views of Hart that as this was a private matter causing no public nuisance morality should |

|not be reflected in law, i.e. an acquittal rather than a finding of G, even if the public would find it repulsive. |

|. |

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|R v Wilson (1996). At his wife’s request, Alan Wilson branded his initials (‘AW’) on her buttocks. Hearing the appeal against conviction for |

|ABH. The court’s judgment was based on Hart’s libertarian approach that as the matter happened in private and caused no public nuisance |

|morality should not be reflected in the law, i.e. a criminal offence. |

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|Devlin may also have felt that the RM would probably laugh rather than be repulsed by Wilson’s actions and as there was little chance of |

|effecting public morality so there should be no crime. |

Conspiracy to corrupt public morals

|Example: Shaw v DPP (1962), which concerned a magazine advertising the services of prostitutes, Shaw was convicted of ‘conspiracy to corrupt |

|public morals’ a previously unknown offence. The House of Lords confirmed the existence of this new common law offence very much based on the |

|view of Devlin and that morality should be reflected in law. Viscount Simonds declared: |

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|‘there remains in the courts 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’. |

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|Lord Devlin would have approved based on the RM view of prostitution at the time whereas Hart would have considered this was a private matter |

|causing no public nuisance and therefore such a crime should not have been created. |

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|In R v Gibson (1990), an artist was convicted under the common law offence of outraging public decency for exhibiting earrings made from |

|freeze-dried human foetuses. Devlin would agree that this is exactly the type of immoral conduct that would arouse the intolerance, |

|indignation and disgust of the ordinary person, and so should be criminalised. Hart might arrive at the same conclusion, accepting that such |

|an exhibition creates a public nuisance which causes significant offence to others, e.g. violent protests. |

The defence of Duress of Circumstance & necessity

The defence is based on the defence of duress which is based on the principle that sometimes the lesser of two evils is the crime rather than serious injury or death, in itself a moral debate.

|Example: R v Pommell: the D successfully argued that confiscating an illegal weapon, a machine gun, from a person in a pub was more important |

|than committing the offence than being in possession of offensive weapon on the basis that this was the lesser of two evils, the alternative |

|being the risk of the owner of the machine gun killing or seriously injuring members of the public in the pub. |

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|Devlin would say that the RM represented by the jury may allow this defence on the basis that confiscating such a weapon is morally acceptable|

|compared to allowing the risk of the gun being discharged and people killed. Hart would also agree that Pommell’s actions should not be |

|criminalised on the basis that compared to the public nuisance of serious injury if the gun was discharged this was the correct action. |

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The defence of necessity is based on allowing the D to argue that their criminal actions were the lesser of two evils. Eventhough parliament has recognised a defence of Necessity in criminal law, precedent has not allowed this defence.

|Example: The emergency services need to break traffic laws (enshrined in the Road Traffic Acts) where the life of a person is more important |

|than obeying the red light or speed limit. This was allowed by Lord Denning in Buckoke v GLC [1975] and clearly both Delvin’s RM and Hart’s |

|public nuisance would agree that the law should allow this defence, morally. |

However, judges have repeatedly resisted creating a common law defence of necessity in criminal law.

|Example: Quayle & Others (2005) D was charged with possessing cannabis in order to stop the pain from an incurable disease. D argued this was|

|the lesser of two evils, a defence of necessity. Devlin would say that RM would be outraged by this act of using illicit drugs and not allow |

|the defence, the position of the court in this case. However, Hart would argue this is a private matter and of no public nuisance and allow |

|the defence. |

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|The courts appear to have adopted the Devlin approach in further cases where it is arguable that they are private matters that cause little or|

|no public nuisance. According to Hart such cases on the defence of consent should be matters that the law should not be concerned with. |

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|However, the civil cases of R v A (conjoined twins) 2000 and Re F (1989), the forced sterilisation of a 26-year of female with the mental age |

|of 5, clearly show Delvin’s approach is at work as the courts decided that the parent’s views in R v A were less important than the morality |

|of performing the operation of splitting the twins. In the case of Re F the court decided that the view of F’s mother were more important than|

|the views of the either the potential unborn child and that of the mother of low intelligence. |

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|These are admittedly difficult cases for courts to consider but clearly courts have to consider the moral pros and cons of such cases |

|effectively operating Devlins approach to law and morality. This is not simply down to courts making a choice as to whether Hart or Devlins |

|approach is the most important. Rather it is the fact that the cases are driven by the moral arguments of Claimant and Defendant in the cases.|

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Judges have adopted a different approach to the issue off assisted suicide such as in the recent case of Tony Nichlinson.

|Example: Nichlinson’s widow argued along the lines of Hart that assisted suicide is a private matter and therefore where there is clear |

|consent to allow another to assist in suicide should not be a matter for the criminal law. The issue has been raised repeatedly in Parliament |

|in terms of decriminalising the issue under certain circumstances. However, Parliament has repeatedly failed to reach a conclusion with the |

|issue splitting the publics views almost 50/50. It is unsurprising therefore that the SC went for the status quo, that such actions should be |

|regarded as murder unless Parliament decides otherwise. Devlin would agree with this as RM is currently ambivalent as to whether to |

|decriminalise assisted suicide or not. |

| |

|This exposes the weaknesses or perhaps strengths of law reflecting public morality, sometimes the status quo is better than a hasty decision. |

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Morality and Acts of Parliament

|Example: The Human Fertilisation and Embryology Act 2008 introduced an expert panel of scientists to oversee advances in human genetic |

|manipulation. The group have been tasked with debating issues such as all female parents, saviour siblings, same sex couples and hybrid |

|embryos. |

| |

|Devlin would agree that such issues regardless of whether in private or not should be a matter for the law, the panel of scientists would |

|represent the RM. Morality can be seen to be firmly at the heart of such controversial decisions. Harts view as a legal positivist would |

|accept the supremacy of the parliamentary process but may question as a libertarian a panel of scientists acting as moral arbiters of issues |

|that may be described as private matters, such as saviour siblings. |

Conclusion: The arguments regarding whether law should be underpinned by morality seem to be based on the courts perceptions of what is truly a private matter or one that is of public concern. As we become a more diverse society Hart’s arguments may become more reflected in judicial decision making, i.e. private matters should remain so and not be the subject of the law, regardless of its perceived moral efficacy. For example, in 2016 The Ministry of Justice have allowed a practicing Muslim Crown court judge to also sit on a Sharia law tribunal in the UK. The Sharia court deals with Muslim divorces which traditionally are much easier for men than women. Hart and Mills may agree with this more libertarian approach as for example Hart would see the issue of faith and marriage as a private matter.

However, in some situations it’s clear that moral considerations have to provide the underpinnings of the development of the law, e.g. technological advances in DNA manipulation. In particular, the whole parliamentary process thrives on Delvin’s approach for areas that the public are perceived to find important, for example the issue of assisted suicide.

Whether the law should reflect current morality is as much about what issues the public are perceived to find contentious as whether such issues should be approached from a Hart or Devlin approach. Precedent is effectively driven by such arguments particularly where the common law is entering into unchartered territory. With change in society continuing at a pace, such as driverless cars or robots taking humans jobs, the only basis for such undiscovered countries is the perceived moral views of the RM at the time. The Devlin and Hart debate as to how much law should reflect morality is as important today as it was in the 1950s.

Activity One

Read the following hypothetical situation:

‘Under their unwritten constitution the citizens of Brownland have always enjoyed freedom of speech. However, in 1984 the Parliament of Brownland duly passed a law declaring that all natural blondes are barred from voicing political opinions in private. The penalty for disobedience is a fixed five-year prison sentence. In 1988 Joe reported his wife, Marilyn, for criticising the government. She was given the mandatory five-year sentence. In 1995, the 1984 law was repealed. Joe was then charged with the common law offence of ‘depriving an innocent person of his liberty’.

How might natural lawyers and legal positivists decide the outcome of Joe’s case?

Activity Two

Consider the following hypothetical situations. What point about the relationship between law and morality would they illustrate? Use different theories to illustrate different points of view. Use any areas of the law are similar to help in your explanation.

After World War I there was a shortage of men of marriageable age in Britain. As a result many young women’s hopes of marriage were dashed. Parliament therefore passed an Act making polygamy compulsory for all men between the ages of 20 and 40.

Ivor Camm, a former member of the North Wales mountain ranger service, was scrambling over the ridge known as Crib Goch, when he met a party of inexperienced walkers. He ignored their pleas for help, as he was going to be late home for lunch. Two members of the party fell to their deaths.

Activity Four

Exploring Law and morality

Andrew Mitchell A level Law review Vol 1 No1

Let me start this article with a confession. I admit to swearing occasionally, to reading books and watching films that might cause offence to others and to falling out with one of my neighbours. I really ought to know better and I do feel guilty about these things, but there is no law against any of them. These are all breaches of moral, or ‘ought’, rules and the worst I can anticipate is your disapproval.

However, some moral rules are so important to the protection of social norms and values that they have become part of the law. They no longer express what we ought not to do, but rather what we shall not do. In other words, these rules must be obeyed. So, if I kill, steal from, rob or inflict violence on another, I can expect to face a criminal penalty that will probably affect my liberty. Alternatively, if I enter into a contract and do not fulfil my promise, I can anticipate a civil lawsuit and the prospect of paying damages to the claimant.

The relationship between legal rules and moral rules

Legal and moral rules are similar in that they guide social conduct and behaviour, but the main point of difference is that only those rules with legal status lead to sanctions and remedies that the courts will enforce.

Salmond’s model, which illustrates the overlap between law and morality, also suggests that there are some areas of law that appear unrelated to any moral rule, such as technical road traffic provisions, and, as we have seen, some examples of immoral conduct that are not considered illegal. Lon Fuller, a US jurist, argued that the law would overlap with the morality of duty, but not with the morality of aspiration, a point aptly demonstrated by Lord Atkin’s words in Donoghue v Stevenson (1932):‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour.’

The overlap between law and morality is subject to expansion or contraction, owing to changes in social acceptability. The law might prohibit activities, on the one hand, which fall out of step with modern morality, such as banning fox-hunting in the Hunting Act 2004. On the other hand, however, the law might permit some socially tolerated activities that were once strongly prohibited, such as homosexual practices between consenting adults.

The law can also stimulate changes to morality. For example, attitudes toward drink-drivers have hardened as the law has developed.

Sometimes moral rules come into conflict with legal rules. For example, a person of deep religious conviction might be prepared to break the law for a higher moral cause. In these circumstances, the ‘shall’ rule prevails over the ‘ought’. Thus, in Hammond v DPP (2004), an evangelical Christian preacher was found to have breached criminal public order legislation when his crusade against immorality provoked disorder in a public street.

The legal enforcement of moral values

The above discussion brings us to another important question: to what extent should the law seek to enforce certain moral values?

It might be argued that in a multicultural, multi-faith and pluralistic modern society, where moral agreement might be lacking across a range of issues, it is not the law’s place to enforce moral values. This is a powerful point, associated with positivist scholars such as H. L. A. Hart, who believed that, over and above the necessary public rules for cooperative living, the law should take a libertarian stance. Citizens should be allowed the opportunity to exercise their own moral choices, provided that these do not have harmful consequences for others in the community.

However, natural law scholars, for whom the relationship between law and morality is vital, might disagree. Lord Devlin, for example, took issue with Hart’s analysis. He believed that an overlap between law and morality helped to promote and preserve the fabric and moral welfare of society. The courts have reflected Devlin’s authoritarian view to justify legal interference in unusual, but consensual, private sexual practices (see, for example, the cases of Brown,1994 and Emmett,1999).

The UK’s Human Rights Act 1998, incorporating the European Convention on Human Rights (ECHR), balances the desire of some natural law theorists for the protection of morality through a ‘rights culture’, with a more libertarian approach to private freedoms as enshrined, for example, in Article 8 of the ECHR. In matters of sexual morality, while the European Court of Human Rights has upheld state interference with dangerous practices on grounds of ‘health or morals’ under Article 8, as in the unsuccessful appeal by the defendants in Laskey, Brown and Jaggard v United Kingdom (1995), it has also made some significant libertarian decisions relating to private, consensual, homosexual practices (see, for example, ADT v UK, 2000, and B v UK, 2004). The ECHR’s respect for private freedoms arguably gives an impetus to libertarian claims at the expense of the authoritarian view of law and morality.

However, sexual morality is not the only contentious area in the law and morality debate. Others include: moral paternalism and the extension of the ‘nanny state’ (for example, protective health and safety laws and prevention/limitation of smoking and other vices); the need to resolve complex legal and ethical dilemmas (such as whether to separate conjoined twins in Re A (Children), 2000); the increasing significance of the relationship between law and religion; and the legal regulation of developing scientific and technological advances (such as cloning, GM crops and medical research).

The law cannot please all of the people all of the time. While key areas of civil and criminal law are rooted in morality, there are other aspects of the legal framework that appear unrelated. In seeking to balance public order with private freedoms, the law is informed by a range of moral perspectives but, ultimately, treads its own path via Parliament and the courts.

Questions

1 What behaviour is identified in the article as being in breach of moral but not legal rules?

2 By what terms does the author refer to (a) moral rules and (b) legal rules? Explain why these terms are appropriate.

3 How may an overlap of law and morality arise?

4 What view was expressed by (a) Hart and (b) Devlin as to whether the law should

seek to enforce certain moral values?

5 Look up the cases of Emmett (1999) and ADT v UK (2000). Why do you think the

Court of Appeal followed the authoritarian approach of Lord Devlin in Emmett (1999), and the European Court of Human Rights followed the libertarian approach ofH.L.A.HartinADTvUK(2000)?

6 The author concludes:‘The law cannot please all of the people all of the time.’ Explain the justification for this conclusion.

June 2014 – Question and Examiners Report

Q10 Explain the meaning of law and morality. Discuss whether the law does and should

seek to uphold moral principles. (30+5)

The question required students to explain the meaning of law and morality and to discuss whether the law does and should seek to uphold moral principles. In explaining the meaning of law and morality, the vast majority of students suggested possible definitions of law (eg those of Salmond, Austin, Kelsen, Hart, etc) and morality (eg that of Phil Harris) and proceeded to compare the respective characteristics of the two. In this respect, most students contrasted, for example, the ways in which law and morality arise or are changed, the compulsory nature of law and the voluntary nature of morality and the ways in which law and morality are enforced. Better students raised more sophisticated contrasts, for example, in relation to how disputes of law and morality are settled.

Students were then required to discuss whether law does, or does not, reflect morality and the vast majority provided, to a greater or lesser degree, illustration of where law is based on morality (eg offences against the person and property, Shaw v DPP, R v R, Brown, outraging public decency, etc) and where it apparently is not (eg traffic offences, swearing, adultery, etc). Many students also referred to Salmond’s interlocking circles. Strong students carefully analysed the moral issues involved in the illustrations selected, although weaker students often failed to analyse these in any depth. Better students also referred to the difficulty which the law often faces in taking a moral stance, given the differing moral views in a pluralistic society and that the law often bases rules on principles other than morality, for example, utilitarianism, or the prevention of harm, etc. In this connection, students referred to problematic areas such as that raised by Gillick, Bland, abortion, homosexuality and many other (relevant) issues.

The second aspect of the question required students to consider whether the law ought to uphold moral values, in response to which many correctly considered the philosophical conflicts, for example, between natural law and positivism, between Hart and Fuller and, in particular, between Hart and Devlin. Strong students were able to explain and distinguish these theories in detail, but weaker students often provided confused explanations and/or little detail, especially in relation to the Hart-Devlin debates. Students generally sought to illustrate the philosophical views as explained by reference to various scenarios, for example, in relation to “death” (assisted suicide, cessation of medical treatment), birth (abortion, assisted reproduction), gender (discrimination, civil partnerships, etc), and other issues. Strong students scored high marks by careful analysis of the moral issues involved and by relating these issues to their earlier philosophical discussion but many students explained their selected scenarios in a very limited way.

Note Students should always answer the question set, even in relation to Concepts. Question 10 clearly contained three parts, the meaning of law and morality, whether the law does uphold moral principles and whether it ought to do so. Better students made it clear which part of the question they were answering, but many made no real attempt to distinguish carefully between the three parts, merely writing an obviously pre-prepared essay on “law and morality”. As a result, it was often difficult for examiners to decide whether students were considering whether law does uphold moral principles, or whether it should do so.

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