Law and Morality

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Morality can be described as a set of values common to society, which are normative, specifying the correct course of action in a situation and the limits of what society considers acceptable. Law on the other hand according to Osborn’s Concise Law Dictionary is a rule of conduct imposed and reinforced by the sovereign. A body of principles regognized and applied by the state in the administration of justice.

If law is to enforce morals, then it is faced with the problem that what one person considers immoral , another might not, so which viewpoint should the law uphold. This can be seen in the case of Gillick v West Norfolk and Wisbech Area Health Authority (1986) where Mrs Gillick sought a declaration that what she saw as an immoral activity (making contraceptive advice and treatment available to girls under the age of consent) was by nature of its immorality, illegal. This was a moral conflict as some saw this as immoral - it encouraged underage sex – others felt it was moral as young girls would engage in underage sex anyway , but contraceptives would prevent unwanted pregnancies. Which viewpoint would the law support. The House of Lords ruled against Mrs Gillick but stated that they were governed by the relevant statutes rather than moral arguments. What then is the relationship between law and morality. What are the differences and similarities

The vast differences between existing theories of the basis of law often fail to notice the fact that they are based on the practice of comparing an act to certain standards in order to determine its legality.[1] Different approaches differ in terms of which standards are compared and assessed, though both ultimately assess acts to certain standards to determine their legality or morality. The two leading theories on the topic are positivism and naturalism – the debate between the two has fuelled theorists for centuries. Many observers of positivism presume that it completely dismisses any role of morality in the application of the law, while naturalism bases the existence and validity of law on moral bases. Although the theories are fundamentally different, it is argued that a link between law and morality is glaringly obvious and unavoidable, no matter which side one chooses to follow or favour. This paper will seek to argue that claims which deny any link between law and morality are weak and flawed at best, and apply in a limited manner to simple, straightforward cases. The mere existence of the ‘hard case’ and of court deliberation provides a great deal of evidence for not only the existence of the link between law and morality, but also the necessity of such a link. The naturalist and positivist theories will be explored in order to assess whether the link between law and morality can survive its critics and strengthen the faith of its followers.

Legal Positivism

Positivists claim that objective morality simply cannot exist because values consist of different attitudes towards and beliefs about certain values.[2] Attitudes and beliefs differ between individuals and cause us to react to a certain act in a subjective manner. Moral perceptions are predominantly emotional, so that such assessments in the realm of the law cause uncertainty and inconsistency. It also fails to recognise difficult cases and the possibility of new cases arising. The apparent main flaw of positivism is that it is unable to explain the legal deliberation which takes place in the courtroom, particularly the difficult cases which have no apparent ‘yes or no’ answer. The very difficulties posed by interpreting the law and applying it to everyday circumstances are unable to be adequately explained by positivism. Indeed, there is a distinction here between hard and soft positivists; the latter do recognise a form of moral basis upon which written laws are perched. Yet both soft and hard positivists are at pains to explain how...
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