The Relationship between Law & Morals
Tutor: Mr. Gollup
Tutor: Mr. Gollup
The relationship between law and morals seems to be very complex and this maybe because that at times the two seem to converge and other times they diverge and there are some theories and cases that demonstrate just that. In order to grasp the relationship between the two, first we need to understand what are morals and morality and what law is. Law can be defined as the body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, which is used to govern a society and to control the behaviour of its members. It is a form of social control that exists to maintain order, uphold morals and deliver justice. On the other hand, morality can be described as codes of conduct put forward by society, or some other group, such as religion or as a code of conduct that, given specified conditions, would be put forward by all rational persons. It is a set of moral principles that have been constant over time and have somewhat influenced or guided the establishment of the rules and regulations that we call laws. A basic set of eight such principles, together with brief annotations, has been suggested by Resnik: Non-malificence: Do not harm yourself or other people.
Beneficence: Help yourself and other people.
Autonomy: Allow rational individuals to make free and informed choices. Justice: Treat people fairly: treat equals equally, unequals unequally. Utility: Maximize the ratio of benefits to harms for all people. Fidelity: Keep your promises and agreements
Honesty: Do not lie, defraud, deceive or mislead.
Privacy: Respect personal privacy and confidentiality.
All of which are related to the ‘golden rule: do unto others as you would have them do unto you’. Laws pertaining to the value of life itself and the respect for property of others, etc. extend from universal moral principles such as the Ten Commandments and it is areas such as these that we see the relationship between laws and morals. Of course, as in any relationship there will be conflicts and in the case of law and morality The Hart and Devlin debate is a fine example of such conflicts. The debate is about sexual immorality and questions whether or not law, criminal law, should concern itself with the enforcement of morals and punish immorality. Devlin’s position is that private sexual immorality should be punished by the criminal law. To him, victimless crimes representing immorality such as homosexuality, prostitution, unmarried sex and sodomy should be condemned by the law. His theory is that society is held together by its shared morality and is constituted by the behaviour of its people. “I think therefore, that it is not possible to set theoretical limits to the power of the State to legislate against immorality. It is not possible to settle in advance exceptions to the general rule or to define inflexible areas of morality into which the law is in no circumstances to be allowed to enter.” - Lord Devlin, The Enforcement of Morals (pages.12-13). Devlin is says that if we do not punish these sex crimes, morals and morality will collapse and society will also crumble as a result of it. So the State, through law, has to do something about them. Devlin says that personal behaviour should never interfere with public wellbeing especially the public morals or opinion. However, he compares sexual immorality to treason and sees it as a betrayal to society and therefore legally punishable. On the other hand, Hart questions whether victimless crimes, immorality, can be considered as crimes and his answer is no. Hart thinks it is not a legitimate function of the state to punish behaviour simply on the grounds that it is immoral and that if there is no harm no punishment should be given. He insist...