Law and Morality: Enforcement of Morals
There has been an ongoing debate about the relationship between law and morality. Numerous writers and philosophers have proffered arguments on how law is affected by morality. The question it is believed is no longer if morality affects law, it is to what extent is law affected by morality? And should there be any limitations on the relationship between law and morality?
The law and morality conflict has been persisting for many years. Both the natural law theorists and the positive law theorists would agree that there is a relationship between law and morality. The argument has now moved to what degree morality should play in law?
The obvious indication that this has been laid to rest is HLA Hart’s concession made at the onset of his book, Law, Liberty and Morality. He said that there is a definitive answer of yes, that historically and casually law has been influenced by morality.
In his book Hart focused on the legal enforcement of morality and likewise this essay is concerned with that question. It is believed this is the only debatable divide between law and morality.
The debate became a hot topic in the 1950’s after the creation of a commission to investigate and report back on sexual moralities. The commission led to the publication of the Wolfenden Report in 1957. The report at it outset defined the purpose of criminal law as:
..to preserve the public order and decency, to protect the citizen from what is offensive and injurious and to provide sufficient safeguards against exploitation and corruption of others especially the vulnerable, that is the young, weak in body or mind, inexperienced or those in a state of physical, official or economic dependence. The Law should not intervene in the private lives of citizens or seek to enforce any particular pattern of behaviour further than necessary to carry out the above purpose.
Before embarking on the discussion proper, a definition is required for morality and for what law is. Morality according to the Merriam-Webster online dictionary is (a) a doctrine or system of moral conduct; (b) particular moral principles or rules of conduct; or (c) conformity to ideals of right human conduct. Law on the other hand is defined as “a binding custom or practice of a community: a rule of conduct or action prescribed or formally recognized as binding or enforced by controlling authority.”
That is morality is not enforceable by its definition while law is. Moralities are normative rules applied to a society or a sub-group of society that does not bind them in a court of law. The only enforceability of morality by its definition is from the group applying peer pressure.
There are two main schools of thought in this divide between law and morality, the natural law theorists and the positive law theorists. The natural law school bases much of their ideas of law in their religious beliefs or other transcendental force such as nature. While positivists argue that law has no necessary basis in morality and that it is simply impossible to assess law in terms of morality.
Supporters of the legal positivist school, such as Hart and Mills, purports that law should be in a different sphere from morality. Utilitarianism, a subgroup of the positivism, believes that laws should only serve for the maximization of utility or happiness for the majority. John Stuart Mills said that instead of society imposing morality on members of a society, the individuals should be free to choose their own conduct.
Utilitarian’s are not concerned with the morality of law. They believe that law should only play a minimal role in an individual’s life. Persons should be free to do whatever they want as long as it does not harm another. This is referred to as the ‘harm principle’.
Mills said “the only purpose for which power can rightfully be exercised over any member of a civilised community against his will...