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Both law and morality strongly influence human behaviour1. Law accomplishes this
through threatening punishment2 whereas morality accomplishes this by incentives,
moral behaviour is praised by others followed by a feeling of virtuousness and the
opposite may be said for immoral behaviour3.
There is not a simple definition for law as it is too complex to define4 instead scholars
attempt to describe the law5. Bentham6 and Austin7 argue that the law is the sovereign
commanding those under their power to do something or face punishment8. Hart heavily
criticised this approach comparing their description of the law to a gunman in a bank and
contrasting it with the law. The gunman always gives orders, whereas the law can
empower a person to do something, for example adopt a child9. The gunman is not bound
by his own orders as Austin argued the State was not either the rule of law operates to
ensure that everyone is answerable to the law10.
1

S Shavell, Law versus Morality as Regulators of Conduct (2002) American Law and Economics Review
V4 N2 p.g.227
2
S Shavell, Law versus Morality as Regulators of Conduct (2002) American Law and Economics Review
V4 N2 p.g.227
3
S Shavell, Law versus Morality as Regulators of Conduct (2002) American Law and Economics Review
V4 N2 p.g.228
4
H McCoubrey and N.D.White, Textbook on Jurisprudence (2nd edition Blackstone Press Limited 1996)
p.g.2
5
Lord Lloyd of Hampstead Introduction to Jurisprudence (3rd edition Stevens and Sons London 1972)
6
B Jeremy (1789) The Principles of Morals and Legislation.
7
J Austin Province of Jurisprudence Determined
8
J Austin Province of Jurisprudence Determined
9
H.L.A.Hart The Concept of Law (2nd edition
10
H.L.A.Hart The Concept of Law (2nd edition

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Kelsen11 pure legal theory approach describes the law as the actions of the officials who
enforce them. However to completely ignore the legislatures in the definition seems
slightly odd as judges do not see it as their function to create the law, but Lord Denning
argued that it was for judges to fill in the gaps of the law12.Morals are sets of beliefs, principles, values held by some or all members of society
which essentially determines what is right and wrong. Moral rules unlike legal rules are
voluntary in nature in so far as the consequences are perhaps not as harsh as legal
sanction13. Although that is not to say that ones fear of going to hell, or public
disapproval to everyone outweighs the legal sanction14. Morality is subjective and can be
influenced by many factors including friends, family, religion, the media and education.

Law and morality in that respect are both normative, telling people what they ought to do
by setting out acceptable and unacceptable behaviour. Law can sometimes reinforce our
moral values even in instances where an act we view as immoral15 does not cause harm,

11

H.L.A.Hart The Concept of Law (2nd edition


Marmor, A., 2001, Objective Law and Positive Values, Oxford: Oxford University Press
13
S Shavell, Law versus Morality as Regulators of Conduct (2002) American Law and Economics
Review V4 N2 p.g.236
14
S Shavell, Law versus Morality as Regulators of Conduct (2002) American Law and Economics Review
V4 N2 p.g.236
15
T.S.Petersen What is Legal Moralism? (2011) Walter de Gruyter Philosophy Department, University of
Roskilde, Denmark p.g.8
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this is known as legal moralism. The problem with legal moralism is that the definition of
morality changes over time, over groups of people and it is difficult for the law to keep
up with these changes. It used to be a moral principle that a man cannot rape his wife, in
R v R16 the law found that it was possible for a husband to rape his wife despite the
moral principle was long considered outdated by the public.
Morality is subjective in nature and there are areas where there are differences in
opinions on what is moral and immoral. Should the law enforce morality? To what extent
if at all should it enforce morality?
What if there are two conflicting interests of morality which viewpoint should the law
take? In Gillick [1986]17 a Mother sought to prevent a doctor giving her underage
daughter contraceptive pills without her permission as she saw it as condoning statutory
rape. On the other hand however was the viewpoint that it would increase the number of
teenage pregnancies and sexually transmitted disease. The court took its own viewpoint
on the solution to this conflict and ruled against the right of the parent.

There are many different views on what the relationship between law and morality should

16
17

RvR
Gillick v West Norfolk and Wisbeth Area Health Authority [1986]

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be. Mill and Bentham both advocated the theory of utilitarianism which determines the
moral worth of actions through their consequences18. Bentham described it as creating the
greatest happiness for the greatest number of people19. His form of ethical hedonism20
takes the view that the aim justifies the means no matter what form of harm is caused is
right, despite this being unfair to the minority.

Mill took the liberalistic approach arguing that by protecting the individuals liberty
provides way to the greatest happiness for the greatest number of people. In protecting
that right of individual liberty according to Mill meant that the legislature could only
rightfully criminalise an act which caused harm to others21.To Mill, criminalising an act
because it is immoral or causes harm to the individual actor is not justifiable22 and to
some extent this much is true.The problem with this principle is that Mill did not exactly
define what he meant by harm23. Should it be direct harm to an individual victim24? Or

18

B Jeremy An Introduction to the Principles of Morals and Legislation (Dover Philosophical Classics).
(Dover Publications Inc 2009). p. 1
19
B Jeremy , A Fragment of Governmentp.g.76 www.constitution.org/jblfrag_gov.htm as accessed
13/04/2013
20
B Jeremy; Dumont, Etienne; Hildreth, R Theory of Legislation: Translated from the French of Etienne
Dumon t (Adamant Media Corporation 2005) p.g. 58
21
Mill, On Liberty (1991)
22
J J W Herring, Criminal Law (5th edition Oxford University Press 2012) p.g.19
23
J J W Herring, Criminal Law (5th edition Oxford University Press 2012) p.g.19
24
R.M.Dworkin Lord Devlin and the Enforcement of Morals p.g.986

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can it be indirect harm to the social environment, customs and institutions25? If it is
indirect harm, must it be a standard long term harm, for example a decrease in
productivity26? Or is it sufficient to show that the majority would hate the change27? If
that is the case, then how does the harm principle differ from public condemnation?
Herring argued that the harm principle guides us as to what sort of behaviour should not
be criminalised and that supporters of the harm principles would not agree that all acts
which cause harm should be criminalised28. Hamish Stewart has argued that some acts
however harmful they might be people have a right to engage in29, although he did not
give any examples Herring suggests that this might private consensual behaviour30.
Whilst taking into account these criticisms Joel Feinberg attempted to give a more
modern interpretation of the harm principle31 which he identified as being the liberal
theory of law32. He defines harm as wrong setbacks of interests33, which Husak argues

25

R.M.Dworkin Lord Devlin and the Enforcement of Morals p.g.986


R.M.Dworkin Lord Devlin and the Enforcement of Morals p.g.986
27
R.M.Dworkin Lord Devlin and the Enforcement of Morals p.g.986
28
J J W Herring, Criminal Law (5th edition Oxford University Press 2012) p.g.19
29
Hamish Stewart (2009)
30
J J W Herring, Criminal Law (5th edition Oxford University Press 2012) p.g.19
31
J Feinberg Harm to Others (New York: OUP 1984) and J Feinberg Harm to Self (New York: OUP
1986a) and J Feinberg Offence to Others (New York: OUP 1986b) and J Feinberg Harmless Wrongdoing
(New York: OUP1988)
32
D.Husak, The Nature and Justifiability of Nonconsummate Offences (1995) 37 Arizona Law Review
151 p.g.155
33
J Feinberg Harm to Others (New York: OUP 1984) p.g.36
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that it shows an overlap of both normative and non-normative rules34. He gives the
example of A harming B, in both the normative sense, unjustly or wrongly treating B and
in the non-normative sense setting back the interests of B35. In this instance such an
overlap of normative and non-normative senses should result in its criminalisation
compared to A setting back the interests of B but was not done so wrongfully36. This is
because although his interests are infringed they are not violated and the same applies to
harmless acts. Applying this rule then sado-masochistic behaviour between consenting
adults X and Y as was seen in the case R v Brown should not be criminalised for even if
it was said to be unjust it does not set back the interest of Y and therefore cannot be
considered as harm.

The theory of natural law is another approach which strongly emphasises the relationship
between law and morality. Naturalists argued that there is an unwritten body of morals
which exists even if the government decides not to enforce or recognise it. Aquinas
argued that the law needs to follow a higher law of morals37. This can either come from
34

D.Husak, The Nature and Justifiability of Nonconsummate Offences (1995) 37 Arizona Law Review
151 p.g.155-159
35
D.Husak, The Nature and Justifiability of Nonconsummate Offences (1995) 37 Arizona Law Review
151 p.g.155-159
36
D.Husak, The Nature and Justifiability of Nonconsummate Offences (1995) 37 Arizona Law Review
151 p.g.155-159
37
P Weiss. St. Thomas Aquinas' Five Ways (2004)

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God or some other supreme being. Aristotle believes that these higher laws is reason
agreement with nature38.
The committee behind the Wolfenden report on prostitution and homosexuality found
that the function of the criminal law is to protect the individual from injury, corruption,
exploitation and protect public decency and order. The criminalisation of an act for any
other reason is unnecessary and unjustifiable39. The law has no right to interfere in
matters of private morality40.
It supported Harts view on the separation of morality from the law, even though many
judges after 1957 have imposed their own morality in their judgments. In R v Brown41
held that sado-masochistic acts between consenting adults was held to be criminal and to
find them not guilty would be going against public policy. It seems as if the law is still
trying to hold itself to a public moral code.

In comparison R v Wilson42 the husband was prosecuted after the wife asked him to
brand his initials on her buttocks with a hot butter knife, he was charged under s.47
38

Aristotle, Rhetoric Book I - Chapter 13 http://rhetoric.eserver.org/aristotle/rhet1-13.html

39

P Devlin Morals and the Criminal Law p.g.25


P Devlin Morals and the Criminal Law p.g.26
41
R v Brown
42
R v Wilson
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Criminal Offences Act43 with actual bodily harm. The court held that he was not guilty
because there was no logical distinction between tattooing and branding.
The differing approaches taken in these cases show the differing moralities of different
judges, does this differing enforcement of morality in different case really just? Was
branding seen as more acceptable behaviour than sado-masochistic activity because it
was between heterosexual married couple?

Devlin disagreed with Harts view and contended that law without morality destroys
freedom of conscience and leads to tyranny44. He argued that the main aim for the law
was to protect society, its institutions, environment, ideas and morals and then it should
protect individuals from injury, corruption and so on45. The criminal law must support a
common morality 46 as it forms part of societies moral fabric from unravelling47. He
believed that morality should be enforced by the State if it prevents the disfiguration of
society. What is society and is it always correct? No acts were none of the laws business
which seems a little intrusive on the part of the State, however how far is that from the
43

S.47 Criminal Offences Act

44

Devlin, "The Enforcement of Morals" (1959)


Devlin, "The Enforcement of Morals" (1959)
46
Devlin, "The Enforcement of Morals" (1959) p.g.9-11
47
Devlin, "The Enforcement of Morals" (1959) p.g.9-11
45

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truth? He defined immorality as what any right minded person considered to be immoral
and morality as what the man on the clampman omnibus48 considered to be
acceptable49. Who is the right minded man and is he always right? There is a possibility
of having two right minded men with two different opinions on morality.
Hart was highly critical of Devlins public morality approach50 and asks why the morality
of the majority should be a reason why others cannot act as they wish so long as it causes
no harm. The man on the Clapham omnibus view of immorality may be coloured and
prejudiced by superstition and may be entirely based on feelings as opposed to reason51.
Hart conceded that society needs democracy, however it does not mean that their should
be no limits to the power of the majority52. Unlike what Devlin argued society will not
fall apart because of a change in morality and will continue to survives.
Dworkin takes a step back from the Hart-Devlin debate and shifts the focus to one of
liberties. If a behaviour is a type of basic liberty, for example sex it should not be taken
away simply because another person has another way of doing it, which will probably
48

H.L.A.Hart Immorality and Treason (1959)


H.L.A.Hart Immorality and Treason (1959)
50
H.L.A.Hart, Immorality and Treason (1959)
51
H.L.A.Hart, Immorality and Treason (1959)
52
H.L.A.Hart, Immorality and Treason (1959)
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mean that under this principle consensual sado-masochistic behaviour should be


decriminalised. But what is the difference between a basic and a general liberty?
In Pretty v The UK53 Dianne Pretty was terminally ill with Motor Neurone Disease and
sought permission for her husband to aid her death and not be prosecuted, this permission
was rejected by the courts as it is a legal wrong and considered by some to be a moral
wrong and perhaps the State is under the impression that if they decriminalised active
euthanasia they would be seen to be condoning it, which they do not want.

The liberalist approach, taken by both Hart and Mill would suggest that the
criminalisation of euthanasia is not justifiable as it is causing no one harm. To Mill even
if it was causing harm to oneself it would still not be justificable to criminalise that act,
whereas Hart believes the State can criminalise to prevent harm to oneself54 but it needs
to be an actual harm as opposed to a moral wrong. Approaching this from Dwarkins
perspective one might argue that the right to life is a basic liberty, therefore the right to
end ones life when they chose is up to them.

53
54

Pretty v The UK [2002]


H.L.A.Hart Immorality and Treason (1959)

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Positivists like Devlin argue that euthanasias criminalisation is justifiable so long as the
reasonable man finds it to be immoral. Is this still the view today that euthanasia is
immoral, especially now after all the media coverage on Tony Nicklson wishing to end
his life by active euthanasia?

Even if the criminalisation is justifiable it seems slightly confusing that the law makes the
moral distinction between active and passive euthanasia, with only the former being a
criminal offence. Why is it acceptable to withhold treatment resulting in death and not
deliberately kill a person who wants to die?

In Re B [2002]55 a tetraplegic woman sought to have her artifical ventilation removed


despite the fact that it would result in her death and this permission was granted by the
courts. If active euthanasia is rejected because causing death is a great evil, then passive
euthanasia also causes that great evil death. However passive euthanasia contains the
added evil of continued sufferance before death as opposed to a quick death so why is
one morally favoured by the law over the other? Surely if one finds it to be moral to
preserve human life this should be iterated in all aspects of the law? The case Re MB 56
55
56

Re B [2002]
Re MB [1997]

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talked about the right of a capable person to self-determine what happens to


them. Surely this argument would apply with regards to active euthanasia? The law in
this regard might be picking and choosing which morality it chooses to enforce. Which it
previously did with homosexuality, where acts between two males were criminal whereas
between two females it was still legal, was there any logic behind this decision?

What, perhaps seems more surprising is that doctors through the courts can overrule the
family of the patients wishes to continue treatment where the patient is unable to convey
those wishes themselves. In R v OT [2012]57 doctors asked permission to turn off the life
support of a baby suffering from a mitochondrial disorder meaning that he could not
process food or swallow and had to have mucous removed by suctions frequently. The
parents argued that he had a right to live under the European convention of human rights
for as long as possible. The court rejected this argument, justice Parker found that the boy
did not have the right to live in all circumstances as seen from the case Re J58 . The court
stated that although there was no absolute presumption in favour of life and no right to

57
58

R v OT [2012]
Re J [1991] CA

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kill, there was also no right to strive officially to keep alive59. Especially if the patient
remains in a persistent vegetative state as was Tony Bland in Airedale NHS Trust v
Bland [1993]60 as the best interests of the patient may not mean keeping him alive at all
costs.
Society it seems thinks that it is immoral to take the life of another and the cases
mentioned above show this point, however at times medical opinions seem to overrule
both religious and moral belief so the law switches from supporting morality to
supporting the medical professionals.
In Re A61 the major organs of Mary and Jodie were conjoined and if doctors were to
separate the two one of the girls would have died. However non separation could lead to
both the girls dying. The parents refused to consent to the procedure for religious reasons.
In reaching a conclusion Ward LJ stated that the court was not a court of morals62 and
that the procedure would fall under the defence of self-defence as it was helping Jodie.

Law is strongly influenced by morals and has led to the criminalisation of incest under

59

Re J [1991] CA
Airedale NHS Trust v Bland [1993]
61
Re A (Children) [2000]
62
Re A (Children) [2000] Ward LJ
60

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the Incest Act [1908]63. Although some people may find the thought of incest disgusting

and immoral it does not really explain why parliament felt the need to legislate to
criminalise it. Was there a sudden outbreak of incest relationships which the legislatures
felt that they had to curb? Is it because it may result in an increased risk of birth defects?
If that is the case, then should it still be illegal if it was between two males or two
females? The recent case of Stubing v Germany where a brother was convicted of incest
several times under s.173 German Criminal Code64. He argued that this violated his right
to a private family life under article 8 of the Convention. The court agreed that it had
indeed violated his right to a private life, however since the ban was aimed with the
protection of morals it was seen as a legitimate aim within the meaning of Article 8(2) of
the Convention, which was necessary for a democratic society.

This seems to follow Devlins view that morality can be legislated even if it causes no
harm to others so long as the majority find it so immoral and wrong, perhaps Devlins
view is the best one for now.

63
64

Incest Act [1908]


s.173 German Criminal Code

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