Law and Morality Essay

in that location has been an ongoing debate ab step to the fore the alliance betwixt honestfulness and pietism. Numerous writers and philosophers fix proffered arguments on how virtue is affected by in infect philosophy. The question it is believed is no longer if devotion affects natural integrity, it is to what issue is uprightness of nature affected by exampleity? And should at that place be some(prenominal) limitations on the relationship surrounded by police and religion? The lawfulness and object lesson philosophy contest has been persisting for m whatsoever years. Both the earthy law theorists and the positivistic law theorists would determine that at that place is a relationship in the midst of law and examples. The argument has now move to what degree good philosophy should play in law?The obvious indication that this has been set(p) to rest is HLA harts assignment illuminate at the onset of his support, fair play, casualness and Mor ality. He express that at that place is a definitive answer of yes, that historically and nervelessly law has been enamord by piety. In his book stag focused on the effective put throughment of clean philosophy and likewise this essay is interested with that question. It is believed this is the merely debatable divide between law and morals. The debate became a baking hot topic in the 1950s later on the creation of a commission to enquire and report back on versed moralities.The commission lead to the earthation of the Wolfenden extend in 1957. The report at it emergegrowth defined the purpose of criminal law as .. to preserve the public crop and decency, to protect the citizen from what is offensive and injurious and to tin sufficient safeguards against exploitation and corruption of others particularly the vulnerable, that is the young, weak in body or mind, inexperienced or those in a state of physical, official or economical dependence. The Law should n on intervene in the private lives of citizens or seek to en suck up any particular pattern of deportment further than necessary to carry out the above purpose.Before embarking on the password proper, a definition is required for theology and for what law is. Morality according to the Merriam-Webster online lexicon is (a) a doctrine or arranging of moral conduct (b) particular moral principles or rules of conduct or (c) form to ideals of right hu objet dart conduct. Law on the other hand is defined as a binding custom or practice of a comm unit of measurementy a rule of conduct or treat prescribed or formally accepted as binding or oblige by controlling authority. That is ethics is non enforceable by its definition composition law is.Moralities argon normative rules employ to a beau monde or a sub-group of inn that does non bind them in a courtyard of law. The exclusively enforceability of morality by its definition is from the group applying colleague pressure. in that respect atomic number 18 two primary(prenominal) checks of thought in this divide between law and morality, the natural law theorists and the positive law theorists. The natural law school bases frequently of their ideas of law in their phantasmal beliefs or other transcendental force oftentimes(prenominal) as nature. While positivists p go away that law has no necessary origination in morality and that it is simply unthinkable to assess law in cost of morality.Opposition Supporters of the legal positivist school, such as hart and Mills, purports that law should be in a different orbital cavity from morality. Utilitarianism, a subgroup of the positivism, believes that laws should solely serve for the maximation of utility or happiness for the majority. hindquarters Stuart Mills express that instead of friendship imposing morality on sh bes of a fiat, the humanity-to-mans should be free to choose their declare conduct. Utilitarians are not concerned wi th the morality of law. They believe that law should only play a token(prenominal) role in an psyches life.Persons should be free to do any(prenominal) they want as long as it does not terms another. This is referred to as the harm principle. Mills express the only purpose for which power can in truth be exercised over any member of a civilised community against his allow is to prevent harm to others. Mills went on and tell that not even for the individuals own good should such power be exerted. This argument is re exclusivelytable in that not because there was no neighboring(a) physical harm to another, there was no harm.It could be argued that some star winning drugs or proliferating pornography causes ripple effects that whitethorn event in harm to others. lampblack promotes women as familiar objects and thereby promotes sexual violence against women. Drug users, by their feature effect, require led to the growth of great(p) underworlds that not only supply drugs bu t commits direct victim crimes such as murder. If Mills theory is to be adhered to, this would call back that even in a lieu of explicit sadomasochist sexual practices that could result in the injury to participants, the law should not ascertain involved to prevent harm.This is because the individuals consented to such acts and no wholeness will be harmed still the willing participants. In this light R v Brown would concur been refractory incorrectly. Hart said that the judge in Shaw v DPP, where the defendant was convicted for conspiracy to corrupt public morals after publish a booklet containing details of prostitutes and their sexual practices, seemed willing to pay a amply price in terms of the give way of other values for the establishment or re-establishment-of the court as custos morum. The value Hart was referring to is the justice principle of Lon air-filled.He was suggesting the vox populi made the law imprecise and thereby itself illegal. Fuller suggests th at for law to be moral there must(prenominal) be ogdoad elements referred to as the inner morality of law or principles of legality or procedural natural law. The eight elements are universality, promulgation, non-retroactivity, clarity, non-contradiction, capability of compliance, constancy and congruence. These elements Fuller suggests are what a good legal ashes should aspire for but no one system has or is evaluate to unblemished all elements.However, significant lack of these elements whitethorn mean that a system is an flagitious legal system and could support tyranny. Fuller said that tyranny is a result of the break down of the internal morality of law and was the case in Nazi Ger many a(prenominal). Hart made that very linkup between the principles of legality and tyranny when he suggested that there was no adherence to the principles of legality in Shaw v DPP and by extent was in itself immoral law. The central occupation with morality is whose morality is the ri ght morality to enforce.Nazi Germany is the best example of law enforcing morality. This is why caution must be used with the continued growth of the court making moral judgements and pronouncing itself as the custos morum. Hart said that there are some(prenominal) flaws with the use of law to enforce morality and if no such enforcement bes it would not inescapably lead to the dis integrating of bon ton. He said that society can support several(prenominal) different and sphere of morality. What is considered moral in one outlandish is not inescapably the same in another.On a smaller scale, what is considered moral in one religion indoors a coun raise may not fit square for another, yet they can exist in relative harmony through joint respect. He alike said that by using law to enforce morality will result in the stagnating of morals in time. It is evident that morality assortments with time and what was immoral years ago would not be immoral today. Sometimes the animat e laws do not match changes in societal. In the case R v R, where a husband was charged with attempt enchant of his wife, the existing law at the time was outdated in respect of the current moral standards of society.If the courts had followed the law as was, they would directly contradict the will of society and the husband would not have through with(p) anyaffair illegal. In that case the court made a value judgement, one ground in morality to adapt to the change in the morality of society and nominate that a husband could in item rape his wife. This case demonstrates the role morality plays in law. If courts did not have any moral basis, then this may lead to disconnect between the law and society. In R v R the courts had a choice each observe an immoral precedent or to adapt itself to the changing morality of the society.Although the judges may try to propound that they only declared what the law was, this judgement is one on moral basis. Should the judges have followed the law at the time that a man cannot rape his wife? Wouldnt that have led to an conflictment on the womans individual right? Are judges the right people to expound morality? Supporters The idea that morality has no come in law has been refuted by many theorists such as Hyman Gross and manufacturer Devlin. Gross contended that Law and morality are one and the same.Laws are inherently moral and that is why acts like murder, rape and thieving have been made illegal. Law and morality cannot be separated as the society fashions law based on the conception that the behaviour being address has to be immoral or undesirable by the reasonable man. The problem with this view is that this cannot apologise acts that are prohibited by law but not immoral or the reverse. Sex outside of marriage brings a very strong brotherly torment but no one believes that fornication rise to the level for legal reprimand.Devlin argued that there is an be moral net that hold ins society together and it should be protected by law. His approach has some aspect of social veer theory, which suggests that everyone in society is there by agreement. He said that to exist in a society there must be some general principles that members have a consensus on. It could be said to be analogous to a family. In a family there may be several different personalities, but what keep them functioning like a unit is that there are underlying confusable values that act as a cohesive bond between members.Devlin said in The Enforcement of Morals (1959) that Societies crumble from within more frequently than they are broken up by external pressures. in that location is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its politics the suppression of vice is as much the laws business as the suppress ion of subversive activities. Former minister of religion of Justice of Jamaica, Senator Harding, in his speech at the inaugural lecture at the imbed of Law and Economics said it would have been helpful if Lord Devlin had provided examples of some red-brick societies which have disintegrated because of the loosening of moral bonds. And it exponent be a better thing for some societies to disintegrate by loosening its moral bonds. Nazi Germany comes to mind those societies disintegrate from within more frequently than there are broken up by external pressures Devlin said that it is morals that hold society together and should therefore influence the development of law.He goes further and said that even if private acts are considered to create sufficient public disgust, that is if the reasonable man finds this act so unacceptable then it threatens the moral fabric of society and should be subject to criminal punishment. He describes a limit of tolerance as to how much of an immoral act society or the reasonable man can tolerate. at a time society passes this limit then something must be done to intervene. Lord Devlin did not suggest that it is all immorality that should be sanctioned.He suggested that the ones that bring right-minded man to disgust should be. It is not believed that Devlin was out of daub with the state of developing individual liberty. It is how off the beaten track(predicate) those individual liberties will be allowed to infringe on the general public morality and liberty? There needs to be a respite between the individuals right and the general publics. Lord Devlin asked if society has the right to make judgment on individual morality. He answered yes, and this seems to be the accepted approach in R v Brown and Shaw v DPP.There is no where in the retiring(a) were law has developed in an abstract. Law has developed along with the social changes as R v R Devlin also proposed a guideline for the implementation of statutes. He supported i ndividualism and suggested that persons should have the maximal amount of freedom to do as they wish, except when it conflicts with the societys integrity. He also said that law should only be created to sanction behaviours that are gross, not just merely immoral. And finally, the law should only set the minimum basic standards expected of individuals.Conclusion Morality is important to the integration of society and if the mythical social contract theory has any weight it is in fact as Devlin suggest the web that holds it together. However, it can also be serious and may also be the underlying reason for actual disintegration of society as in Nazi Germany. There is no correct answer or side. The answer rest in the agreement the balance between the individual right and that of society, the balance between the positivist and the naturalist, the balance between the heterosexual and the homosexual.The individual should have the right to do as he feels but there has to be limitations. The extremes of either side of the debate are the jeopardy zones but the answer lies in the indefinable, undeterminable shadows of the gray that rest between the divide. Bibliography 1. MDA Freeman, invention to Jurisprudence 8th mutant (Sweet & Maxwell) 2. Httpsixthformlaw. information/01_modules/other_materials/law_and_morality_/08_hart_devlin. htm 3. HLA Harts, Law, self-direction and Morality (University of Stanford Press) 4. Dwight Bellanfante, Keep the law out of Gays Bedroom (The Jamaica Observer October 31, 2004).5. Elliott & Frances Quinn, position Legal dodge eleventh chance variable (Longman-Pearson, UK), 6. Criminal Law, Clarkson and Keating, (Sweet & Maxwell), 2007 7. Gary Slapper And David Kelly, The side Legal scheme eleventh Edition (Routledge, UK) Page 1 . Law, Liberty and Morality, H. L. A Hart, Stanford University Press, 1963. Page 1 2 . Catherine Elliott & Frances Quinn, side of meat Legal System 11th Ed (Longman-Pearson, UK), Page 657 3 . http//ww w. merriam-webster. com/dictionary/morality, accessed twentieth October 2010. 4 . http//www. merriam-webster.com/dictionary/law, accessed 20th October 2010. 5 . Gary Slapper And David Kelly, The face Legal System 11th Ed (Routledge, UK) Page 6 . Catherine Elliott & Frances Quinn, English Legal System 11th Ed (Longman-Pearson, UK), Pg 655-656 7 . Law, Liberty and Morality, HLA Hart Stanford university Press, 1963, page 3 8 . Ibid 9 . Catherine Elliott & Frances Quinn, English Legal System 11th Ed (Longman-Pearson, UK), Page 656 10 . 1993 2 All ER 75 11 . 1961 2 W. L. R 897 12 . Law, Liberty and Morality, HLA Hart Stanford university Press, 1963, page 7 13 .1961 2 W. L. R 897 14 . Catherine Elliott & Frances Quinn, English Legal System 11th Ed (Longman-Pearson, UK), Pg 658 15 . Ibid 16 . 1992 1 A. C. 599 17 . 1994 1A. C. 212 18 . Criminal Law, Clarkson and Keating, harming & Maxwell, 2007 19 . Keep law out of gays bedrooms says Harding, Dwight Bellanfante, Observer s taff reporter Sunday, October 31, 2004 20 . 1994 1A. C. 212 21 . 1961 2 W. L. R. 897 22 . 1992 1 A. C. 599 23 . Catherine Elliott & Frances Quinn, English Legal System 11th Edition (Longman-Pearson, UK), Page 658.