Consider the view that there is a close relationship between law and morality. Examine the debate as to whether the law should reflect moral values, and discuss issues, which show the continuing importance of that debate. (30marks + 5 for AO3)
A definition of law adapted from LB Curzon, Dictionary of Law states “ the law is a set of rules which are binding among the people of a community or a state, so that they will be imposed upon and enforced among those persons by appropriate sanctions”. The definition of morals given by Elliott and Quinn, Law for AQA state that “morals are beliefs and values which are shared by society, or a section of society; they tell those who share them what is right or wrong”. There are many similarities and differences between law and morality. The similarities being: both are prescriptive and state what should and shouldn’t be done, both have sanctions in place if not followed, and both put pressure on individuals to adhere to them. However they are different in certain aspects: the source of each is different. Laws are made in parliament, whereas morals are shaped by many different factors. Individuals are able to choose their morals but the law binds everybody.
There are some circumstances where there is overlap between law and morals. An example includes prostitution, and religion. Lord Atikin’s neighbor principle is strong way to highlight this overlap. The majority of both laws and morals are based on the dominant religion of Christianity. The neighbor principle is to “avoid any act or omission that affects your neighbor. Your neighbor being anyone who is affected by your act or omission” This supports the idea of “Love thy neighbor” from the Bible. However there is not always a connection between law and morality, for example not all strict liability offences need a moralistic view: this being parking on a double yellow line. This can be seen as a rule that everyone must follow, that doesn’t lead to different beliefs or theories, as it is simplistic.
Durkheim, a French sociologist highlighted the fact that in a modern developed society it is difficult to pinpoint a set of moral values shared by everyone. He suggested that is smaller society areas, it is easier for people to share a moral code, however unlike a advanced society like ours it is unlikely for everyone to have the same morals as so many people are different within status, ethnicity, background and religious status. Law is decisive, a rule will tell us whether someone is legal or illegal, but in increasing numbers of areas individual morality is not necessarily reflected in what the law says. There are various theories on what the relationship of law and morals should be. The first theory is natural law, adopted by St Thomas Aquinas. This states that there is a higher law to which law must conform. He believed human law did not match divine law; it should not be awarded the status of law at all. Aquinas saw it as coming from God, while Aristotle believed it came from nature. Another theory refined by John Stuart Mill is utilitarianism, which proposed that the moral action was the one that produced well for the many, even if it was at the expense of the one. Mill’s refinement of the idea argues that whilst this idea is true, the individual should not have to follow society’s morals, and should be free to act as they wish, provided their acts do not harm others. Professor Hart, a legal positivist, believes there is no necessary relationship between the legal system and the ideas of morality or justice; a legal system can function effectively even though it is neither moral nor just. He presents the example of Nazi Germany, however this can be criticized as it would of followed Hitler’s morals and his ideology of ‘blood and soil’ and Aryan race. The Hart/Devlin Debate followed the publication of the Wolfendon report in 1957. The committee behind the report contained Lord Devlin, a prominent judge, and the academic...
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