Law and Morality

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Part One - An introduction to law and morality

 

Law

 

Law is not a term that lends itself to easy definition. To discover what men believe law is, we need to look at two distinctive theories. These are legal positivism and natural law.

 

Legal positivism

 

Positivists believe that a law is a legal rule which, if made in the manner recognised by the legislative power in the state, is valid irrespective of its content – in otherwords that as long an elected parliament debates and makes the law everyone must abide by it.

 

 

Austin is perhaps best known for developing the command theory of law. He argued that a law is a command from a sovereign whom the population at large is in the habit of obeying, and it is reinforced by the availability of a sanction. Put simply, laws are orders backed by threats. A law, therefore, is the expressed wish of the sovereign and as such is distinguishable from other commands such as those from God or from an employer. The sovereign is the person or body whom others habitually obey, and who is not in the habit of giving obedience to anyone else.

 

Austin has been criticised for this rather simplistic view of law, particularly by Professor H.L.A. Hart, partly because it is difficult to identify a sovereign in many states, but also because many areas of law such as contract, which grant powers to people, do not fit neatly into such a definition. As a legal positivist, he insisted on the separation of law and morality. However, he developed a much more sophisticated model than Austin’s to explain the nature of law. There are, he argued, two categories of rules, called primary and secondary rules, which, in combination, form the basis of a functioning legal system.

 

Primary rules either impose legal obligations, as in criminal law, or they grant powers, as in the power to make a will in the law of succession, or the power to enter into a contract.

 

Secondary rules are concerned with the operation of primary legal rules. Hart identified three specific secondary rules. Firstly, the rule of recognition sets criteria for identifying primary legal rules. These criteria would include reference, for example, to Acts of Parliament and judicial decisions. Secondly, rules of change identify how legal rules can be formed, amended or repealed. For example, in the case of an Act of Parliament, reference would be made to the various readings in the House of Commons and the House of Lords, and to the need for royal assent. Thirdly, rules of adjudication enable the courts not only to settle disputes, but also to interpret the law.

 

Hart argues that a legal system is established by the union of these two sets of rules. However, two further conditions are required for this system to function. Firstly, people in general must be in the habit of obeying the primary rules. Secondly, public officials must accept the rules of recognition, change and adjudication.

 

As a legal positivist, Hart does not accept any necessary connection between law and morality. In other words, the validity of a law is not dependent upon its moral acceptability. Even a morally repugnant law may be legally valid. However, that does not mean we must obey laws that are morally repugnant. Obedience remains a matter of personal decision or conscience.

 

 

 

 

 

Natural law

 

Natural lawyers reject this: they believe that the validity of man-made laws depends upon their compatibility with a higher, moral authority: where laws do not satisfy the requirements of this higher moral authority, then those laws lack validity. There are two main types of natural lawyers, those that believe in laws from a god and those that do not believe in god but that society has an unwritten moral code that laws should follow.

 

Thomas Aquinas was a 13th-century Catholic philosopher and theologian, who devoted his life to scholarship, in particular to the study of Aristotle. His major work, the Summa Theologica, contains his explanation of four different types of law. One of them, Divine law is concerned with the standards man must conform to in order to attain salvation. These are revealed to mankind by inspiration or revelation, as for example the Ten Commandments contained within the Bible. Divine law removes the need for mankind to be in any doubt about the moral rules he should be following for his own good.

 

Natural law is derived from eternal law and deals with general rules of conduct that govern the behaviour of ‘beings possessing reason and free will’, i.e. humans. It is implanted in us by God as part of our nature, and so we have a natural inclination to behave in a way that fulfils our purpose in life. These include the inclination to preserve life, procreate, and live within society. By reasoning upon natural law, certain general rules of conduct can be developed. The first of these is to ‘do good and avoid evil’. Some others are ‘not to commit suicide’, reflecting the inclination to preserve life; to ‘rear and care for offspring’, reflecting the inclination to procreate; and to ‘develop our rational and moral capacities’.

 

Human law is derived by reason from natural law. It is the result of a process of applying the principles contained within natural law to particular geographical, historical and social circumstances.  Lon Fuller was Professor of Jurisprudence at Harvard Law School. He is known as a natural lawyer in that he rejected legal positivism: he refused to accept the belief that law has no higher authority than that of a sovereign authority.

 

Fuller views law as serving a purpose. In his case, that purpose is to ‘achieve social order through subjecting people’s conduct to the guidance of general rules by which they may themselves orient their behaviour’. For laws to be able to achieve this purpose, they must satisfy eight particular principles. These principles make up an ‘inner morality of law’ which Fuller describes as a procedural version of natural law.

 

According to these eight principles, laws should be:

1                 in existence, not ad hoc

2                 promulgated, i.e. published

3                 prospective, rather than retrospective

4                 clearly stated and comprehensible

5                 consistent with each other

6                 possible for people to obey

7                 constant, i.e. relatively long-lasting and not constantly changing

8                 applied and administered as stated.

 

Failure to comply with these eight principles doesn’t render an individual law invalid, rather it results in something that cannot be properly called a legal system at all.

 

Professor Hart, while not critical of the eight principles themselves, argued that Fuller was not justified in calling them a morality. He illustrates his objection by reference to the art of poisoning. Like law-making, poisoning is an activity with a purpose. The poisoner will develop principles to render his art effective. However, nobody would consider calling these principles the ‘inner morality of poisoning’. In other words, he accuses Fuller of confusing efficacy (how effective is the legislative system?) with morality (is it good or bad?).

 

Morality

 

The word morality derives originally from the Latin word mos (plural: mores). The standard meaning of this word is a custom, habit or usage that is determined by man’s will rather than by law. The Roman statesman and orator Cicero once wrote that law and custom (mos) must both be obeyed, illustrating their parity. Custom formed the bedrock of Roman society in Cicero’s day, with duties and obligations balanced by rights and privileges.

 

Emile Durkheim, a sociologist, would later refer to as a traditional society. In such a society people had much in common. However, by Durkheim’s day, society was becoming more fragmented. First, labour was becoming specialised, with workers developing expertise in increasingly narrow fields, thereby becoming alienated from each other. Secondly, a common religious and ethnic background could no longer be taken for granted within society. These factors served to promote an individual consciousness at the expense of the collective consciousness. The speed of change, Durkheim argued, led to confusion in moral outlooks, and to the breakdown of traditional norms of behaviour. Durkheim used the word ‘anomie’ to describe this result. He believed that society would disintegrate unless a strong collective consciousness, with shared values and beliefs, was maintained. One of the functions of education, therefore, is to strengthen the common morality and reduce individual consciousness. This can in part be achieved by a pledge of allegiance to the state, an idea recently promoted for all school leavers in Britain. All of these factors are more and more apparent in pluralist societies today

 

 

Part two - The relationship between law and morality

 

Shared characteristics of legal and moral rules

 

  1. They are both concerned with setting standards, which are essential for governing the behaviour of individuals within society. For example, in order to avoid unnecessary death and injury, the law requires us to drive on the left. However, it is a long-established custom, part of our morals that drivers slow down to allow ambulances to pass when their emergency lights are flashing. Both rules are concerned with the behaviour of drivers and the saving of life.

 

  1. Legal and moral rules employ similar language: they distinguish between right and wrong, and they speak of duties, obligations and responsibilities. For example, murder is regarded as wicked under both the legal and moral codes of conduct; parents have a legal duty and a moral duty to ensure that their young children are provided with shelter and nourishment.

 

  1. Law and morality often coincide or overlap: for example, the Ten Commandments, given to Moses on Mount Sinai, continue to serve as a moral code for many today. Indeed, these commandments contain a number of prohibitions, which are to be found in the laws of even the most primitive societies. In our age, the order: ‘Thou shalt not kill’, is reflected in the common law on murder; the command: ‘Thou shalt not steal’, is currently contained within ss1–6 of the Theft Act 1968; and the principle of the virtue of honesty, which lies behind the command not to give false witness, can be seen in the development of the law in areas such as fraud (crime), misrepresentation (contract), and defamation (tort).

 

 

 

 

 

 

Where Legal rules and morals seem at odds

 

  1. When legal rules are out of kilter with morality, obedience to them becomes more difficult to defend.  It might be argued that strict liability offences are like this. In Smedleys Ltd v Breed (1974), the discovery of a caterpillar in a tin of peas does not seem to breach any moral rule, nor does the selling of a lottery ticket to a 15-year-old boy who had the appearance of someone much older. It is therefore not surprising that the principle of strict liability is controversial: legal rules are given greater validity by their moral content.

 

  1. There are many moral rules which are not enshrined in law. There is no liability in English criminal law for omissions, unless the failure falls within one of the recognised exceptions where there is a duty to act, such as a duty to children (R v Gibbons and Proctor (1918)), or a duty through a contract of employment (R v Pittwood (1902)). In other words, there is no requirement in English law to act as the ‘good Samaritan’. Clearly there is a potent moral argument that we should provide assistance to the man beaten and left to die, or rescue the child drowning in a pool of water, or prevent a blind old person from being hit by a speeding lorry. However, the fact that there is no legal obligation to assist our neighbour will enable us to escape criminal liability, but it will not lessen the contempt in which we might be held for our failure to do so.

 

  1. Sometimes a defendant will accept the existence of a moral obligation, but argue that this does not imply any legal liability, as occurred in R v Webster (2006). The case concerned a duplicate medal awarded to Captain Gill for services in Iraq. Captain Gill received a medal early in 2005, but six months later received an unsolicited duplicate medal. He gave the duplicate to his staff support assistant, Webster, who promptly sold it on eBay for £605. Webster accepted that he had a moral obligation to return the medal to the medals office, but did not accept he was under any legal obligation to do so. However, the court decided that the medals office retained a proprietary interest in this particular duplicate medal and was therefore entitled to call for its return.

 

The influence of law and morality upon each other

 

Changing moral values can lead to developments in the law.

 

Rape within marriage:

 

In the History of the Pleas of the Crown (published in 1736, although Hale had died 60 years before this date), Sir Matthew Hale had declared that ‘a man cannot rape his wife’. This was based upon the doctrine of implied consent, i.e. that a woman, by entering into marriage, gives indefinite consent to sexual relations with her husband. During the 20th century the courts succeeded in removing this immunity where there was a legal separation order (R v Clarke (1949)), where a decree nisi had been issued (R v O’Brien (1974)), and where a non-molestation order had been imposed (R v Steele (1977)). In these decisions the courts were eager to limit the moral outrage that an acquittal would arouse. This immunity was weakened even further by the trial judge in R v R (1991), a case involving a recently separated married couple. Owen J declared: ‘I find it hard to believe that it ever was common law that a husband was in effect entitled to beat his wife into submission to sexual intercourse.’ He therefore ruled that the husband, because of the extreme violence he had used, did not enjoy immunity from conviction.

 

 

Before the case arrived at the House of Lords on appeal, the Law Commission had produced a report recommending that ‘the present marital immunity be abolished in all cases’. The House of Lords followed this recommendation. Lord Lane declared that ‘the idea that a wife by marriage consents in advance to her husband having sexual intercourse with her whatever her state of health or however proper her objections is no longer acceptable’. In this way the law eventually caught up with perceived public morality.

 

Abortion

 

The Abortion Act 1967 represents an area of statutory reform introduced as a result of public concern over the existing law. Under s58 of the Offences against the Person Act 1861, abortion was punishable by up to life imprisonment, even if performed for good medical reasons. The Infant Life Preservation Act 1929 allowed a limited exemption from this general prohibition in cases where the abortion was carried out in good faith for the sole purpose of preserving the life of the mother. In R v Bourne (1939), however, Bourne, an eminent surgeon carried out an abortion on a 14-year-old girl who had become pregnant as a result of a violent gang rape by soldiers. At his trial, Bourne argued that the operation had been necessary to preserve the mental health (but not the life) of the girl. The trial judge proved sympathetic to this argument. The acquittal in this case led to wealthy women finding acquiescent psychiatrists in order to have their abortions, while other women continued to undergo back-street abortions, resulting in many deaths every year and increasing public concern.

 

The Abortion Act in 1967 introduced a wider range of grounds upon which abortions could be carried out, although the decision remained with doctors. Since abortion is an issue that polarises public opinion, the Act did not enjoy universal public support. However, the law had changed in response to changing public concerns.

 

Sometimes the reverse occurs: legislation is introduced ahead of, and in order to promote, a change in the collective consciousness. Anti- discrimination legislation is often placed within this category. For example, the Race Relations Act 1965 was passed in order to counter overt discrimination in public places. Prior to this Act, colour prejudice, as it was then called, was widely practised in Britain, with signs such as ‘No Blacks’ seen on the fronts of guest houses, and non-whites turned away from some restaurants and public houses.

 

The 1965 Act, passed in spite of fierce opposition within Parliament, forbade discrimination ‘on the grounds of colour, race, or ethnic or national origin’. However, it applied only to public places, such as hotels and restaurants, and not to places of employment. The powers of enforcement were also minimal: a Race Relations Board was empowered to listen to complaints, and to attempt to negotiate with the parties to stop further discrimination. Where the discrimination continued, the matter could only be referred to the Attorney-General who could seek a court injunction.

 

Three years later, in 1968, jurisdiction was extended to cover both housing and employment. Although these two Acts did not eliminate discrimination, they made a robust official statement about the values of British society. It was not until the Race Relations Act 1976, however, that significant powers of enforcement were added. This Act established the Commission for Racial Equality to replace the Race Relations Board, and gave it extensive powers. It distinguished between direct and indirect discrimination: direct occurring where a person is treated less favourably than another in similar relevant circumstances on the grounds of colour, race, nationality, ethnic or national origins. Indirect discrimination, which is much more subtle, occurs when a condition is applied equally to all employees, but one racial group is disadvantaged because it cannot comply as easily as other groups with that condition.

 

These provisions have done much to mitigate harsh, overt racism. On the fortieth anniversary of the passage of the 1965 Act, Trevor Phillips, chairman of the Commission for Racial Equality, stated, ‘The fact that we have strong anti-discrimination laws has led to the near disappearance of commonplace practices which disfigured our society. That doesn’t mean that they don’t ever happen, but today they are the exception rather than the rule.’ Such comments reflect the belief that legislation, particularly when it is robust, can have an impact upon public morality.

 

 

 

Changes in the law can produce changes in morals

 

Homosexuality

 

One of the most heavily legislated areas in the last 50 years has been the law on homosexuality. In 1957, the Wolfenden Report (see later for more details of this) recommended that ‘homosexual behaviour between consenting adults in private should no longer be a criminal offence’. The committee further recommended that the age of consent be fixed at 21, which at that time was the age of majority in Britain.

 

Ten years were to pass before the Sexual Offences Bill was presented to Parliament, time enough for many to reflect on the principles underpinning Wolfenden, and time perhaps for Parliamentarians to muster up the boldness required to secure the passage of the Bill in the face of some earnest opposition. The Bill contained the two most significant recommendations of the Wolfenden Committee: first, that homosexuality be decriminalised for private consensual homosexual activity; and secondly, that the age of consent be set at 21.

 

A quarter of a century was to pass before the age of consent was reduced to 18 in the Criminal Justice and Public Order Act 1994, but only six years until it was further reduced to 16 under the Sexual Offences (Amendment) Act 2000, thereby equalising the age of consent for heterosexual and homosexual activity. This last reform attracted determined opposition within the House of Lords, and the powers of the Parliament Acts had to be invoked to secure passage of the measure. It is difficult to gauge whether those promoting or those opposing these Acts more accurately reflected public opinion on this issue, but what is evident is that the years since 1957 have seen not only substantial legislative activity, but also a major shift in public attitudes in this area.

 

Now we have the Civil partnership Act 2004 allowing same sex unions to be legally recognised and currently the Marriage (Same Sex Couples) Act 2013, which will allow same sex couple to be legally married. 

 

Part Three – Does and should law reflect moral values?

 

Britain is a pluralist society containing a diversity of moral views. This section explores the questions of whether, and to what extent, the law should seek to enforce any particular moral views. This is not merely a subject of academic debate: judges are often forced to consider these questions before determining the law

 

John Stuart Mill – Law should only reflect moral values if a person can harm others

 

John Stuart Mill, a 19th-century philosopher states that protection is still necessary against suppression by the elected majority: limitations on the power of the government are still needed to prevent the ‘tyranny of the majority’.

 

Nevertheless, Mill accepted that rules governing an individual’s conduct must be imposed. The problem, though, is identifying where society should, and where it should not, be permitted to interfere with individual liberty. Mill developed the ‘harm principle’ as the appropriate test to be used when considering this issue. Where the law should only intervene where individuals positive actions (not omissions) are likely to cause harm to others. This is regarded as a liberal approach between law and morality, in otherwords the state should not make any laws against an individual unless it will cause harm (used in a wide sense) to another.

 

 

 

Mill answered such objections by making a distinction between the harmful act itself and its particular consequences. For example, society has no right to interfere with drunkenness itself. However, it does have the right to interfere where a man, through his drunkenness, is in breach of his duty to his family or his creditors, or if he was a soldier or a policeman on duty. In Mill’s words: ‘Whenever there is definite damage to an individual or to the public, the case is taken out of the province of liberty, and placed in that of morality or law’. However, where there is no such breach of duty to society and the damage affects only the individual himself, then ‘the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom’. In other words, the liberty of the individual is too precious to be sacrificed merely to ease another’s feeling of revulsion or repugnance.

 

The Hart–Devlin debate - Must be in your essay!

 

Devlin – Law should reflect society’s morals

 

This argument has endured. In the 20th century it blossomed in the debate between an eminent Law Lord, Patrick Devlin, and the academic H.L.A Hart, a debate sparked by the publication in 1957 of the Wolfenden report on homosexuality and prostitution. The committee had concluded that the law has a role in preserving public order and decency, but ‘it is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour’. Furthermore, there ‘must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business’. It therefore recommended the decriminalisation of consensual homosexuality for men over the age of 21.

 

Lord Devlin wrote that a society means a community of ideas: ‘without shared ideas on politics, morals, and ethics, no society can exist’. Society, therefore, is constituted in part by its morality. In language reminiscent of Durkheim, Lord Devlin argued that the fabric of society is dependent upon a shared or common morality: where the bonds of that morality are loosened by private immoral conduct, the integrity of society will be lost, and society will be liable to disintegrate. Society therefore has the right to defend itself against immorality. Even private wickedness and immorality may be punished because they are harmful to society. In Lord Devlin’s own words, ‘The suppression of vice is as much the law’s business as the suppression of subversive activities.’

 

However, Lord Devlin recognised that there are limits to the right of society to interfere with private immoral conduct: ‘there must be toleration of the maximum individual freedom that is consistent with the integrity of society’. He accepted that personal preferences, or likes and dislikes, should not form the basis for decisions about what immoral conduct should be outlawed. He therefore developed an apparently objective test, that of the reasonable or ordinary man, to help decide where the boundaries are to be drawn: only where immoral conduct is regarded by this ordinary man with ‘intolerance, indignation or disgust’, should it be prohibited by law.

 

It is worth noting that Lord Devlin’s morality is based upon convention: in other words, it is based upon what is generally regarded by society at large as being the acceptable and desirable state of affairs. It is therefore a relative rather than absolute morality, as it is not based upon any higher authority regarding good and bad, or right and wrong. Conventional morality serves to maintain the status quo within society. Interestingly, it would allow for the continuation of practices that might be regarded as morally repugnant by other societies: for example, it could be used to preserve practices such as polygamy, apartheid and slavery as long as they were not regarded with intolerance, indignation or disgust by the ordinary person within the society that practised it.

 

Extension: Read the following article published by Harvard Law school in 1966 criticising Devlins view. Then summarise the key aspects of the argument in 500 words.Lord devlin and the enforcement of moralslord-devlin-and-the-enforcement-of-morals.pdf

 

 

 

Hart – Laws should not reflect society’s morals

 

Professor Hart proposed a more limited role for the law in the enforcement of morality. Whereas Lord Devlin started from the general principle that society has a duty to enforce its dominant morality, and then limited the application of this general principle to acts that the ordinary man regards with intolerance, Professor Hart started from the opposite end of the spectrum, that society should not interfere with private moral or immoral conduct. However, Hart then limited the application of this general principle by sanctioning the enforcement of morality in certain situations. First of all, he accepted that enforcement is permitted when one of society’s dominant moralities is being eroded by a true threat to the cohesion of society. Such a threat, though, has to be more than merely a challenge to society’s code of conduct: there must be evidence that it creates a genuine public nuisance.

 

Hart’s discussion of the offence of bigamy illustrates this approach. He wrote that, in a country where deep religious significance is attached to monogamous marriage and to the wedding service, the law against bigamy should be accepted as an attempt to protect religious feelings from offence by a ‘public act desecrating the ceremony’. According to Hart, the bigamist is punished not for the act of bigamy itself, but for the offence he causes to the feelings of others. Hart applied the same reasoning to public sexual intercourse between a man and his wife. The act of intercourse, he states, is not in itself immoral, but if it takes place in public, it is an affront to decent people, and, as a nuisance, deserves to be punished under the law.

 

Devlin accused Hart of being inconsistent. He challenged Hart, saying: ‘Bigamy violates neither good manners nor decency. When committed without deception, it harms no one.’ Although Devlin is not necessarily arguing here in favour of legalising bigamy, it is at least ironic that he seems to be adopting a more liberal stance than Hart on this issue.

 

Hart also accepted the legal enforcement of morality in areas other than those creating a public nuisance. On some issues he adopted a paternalistic approach. The taking of drugs and consensual euthanasia are two areas where he believed people need to be protected against themselves. This stance seems less liberal than that adopted by Mill.

 

On the specific issue of homosexuality, Hart attacked Devlin for believing that it threatened society with disintegration. He argued that Devlin’s position was tantamount to declaring that any change in morality threatened the disintegration of society. Furthermore, he pointed out

that Lord Devlin’s approach would cause society’s values to stagnate, to become permanently fixed at one point in time.

 

The Hart–Devlin debate reflected through examples.

 

Judges and Parliament are often forced to confront complex moral issues. In Shaw v DPP (1962), which concerned a magazine advertising the services of prostitutes, Shaw was convicted of ‘conspiracy to corrupt public morals’ a previously unknown offence. The House of Lords confirmed the existence of this new common law offence. Viscount Simonds declared:

 

‘there remains in the courts a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order, but also the moral welfare of the State’.

 

Lord Devlin would have approved.

 

Also see the development of the defence of Duress of Circumstance through the case of Martin and Pommell. Note that eventhough parliament has recognised a defence of Necessity in criminal law, principally for the emergency services need to break traffic laws (enshrined in the Road Traffic Acts) and acknowledged by Lord Denning in Buckoke v GLC [1975], judges have repeatedly resisted creating a common law defence of necessity in criminal law, eg Quayle & Others  (2005) for possessing cannabis in order to stop the pain from an incurable disease. But see the civil cases of R v A (conjoined twins) 2000 and Re F (1989), the forced sterilisation of a 26-year of female with the mental age of 5.

 

In R v Gibson (1990), an artist was convicted under the common law offence of outraging public decency for exhibiting earrings made from freeze-dried human foetuses. No doubt Devlin would maintain that this is exactly the type of immoral conduct that would arouse the intolerance, indignation and disgust of the ordinary person, and so should be subjected to the full rigour of the criminal law. Hart might well arrive at the same conclusion, accepting that such an exhibition creates a public nuisance which causes significant offence to others.

 

In the celebrated case of R v Brown and Others (1993), the defendants were convicted under s47 and s20 of the Offences against the Person Act 1861 after engaging in violent sado-masochistic activities. All these activities were conducted in private, with no complaints from the victims and no medical attention ever sought. There were no permanent injuries. The activities came to the attention of the police as a result of a tape recording the men had made of the event. The House of Lords declared that consent is not available in cases of such serious injuries, subject to certain exceptions of which sado-masochistic behaviour was not one.

Speaking for the majority, Lord Templeman declared that the issues of policy and public interest must be taken into account before deciding whether the defence of consent should be extended to sado-masochistic activities. Then, in words resonant of Lord Devlin, he expressed his own opinion: ‘Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.’ He dismissed the men’s appeal.

 

 

Lord Mustill, dissenting, declared, in words reminiscent of Professor Hart, that:

‘the state should interfere with the rights of an individual to live his or her life as he or she may choose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the populace at large.’

 

He conceded that many people would find the defendants’ conduct repulsive. Nevertheless, that feeling of repulsion did not, in his view, justify the men’s conviction.

 

The defence of consent was also considered in the case of R v Wilson (1996). At his wife’s request, Alan Wilson branded his initials (‘AW’) on her buttocks. Hearing the appeal against conviction for ABH, Russell LJ explained:

 

‘Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone criminal prosecution.’

 

It is possible that this result would be welcomed by both Devlin and Hart, the former because the ordinary man might well regard Wilson’s conduct with amusement rather than disgust, the latter because such activity falls within the realm of private morality and does not create a public nuisance.

 

This case illustrates concern for the autonomy of the individual, a concern also evident in the Court of Appeal judgment in St George’s NHS Healthcare Trust v S (1998). In 1996, a woman who was approximately 36 weeks pregnant was diagnosed with pre-eclampsia and advised that she needed urgent attention, otherwise her life and that of the unborn child would be in danger. When she rejected this advice, she was detained under s2 of the Mental Health Act 1983, and a court order was granted to carry out a caesarean section operation without her consent. The Court of Appeal ruled that an adult of sound mind is entitled to refuse medical treatment, and this entitlement is not reduced because her decision might appear morally repugnant, bizarre or irrational.

 

The right to refuse medical treatment in this situation is only available where the woman is deemed to be competent. This language is reminiscent of the decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority and the DHSS (1985). The mother of girls under the age of consent had sought a court declaration that their doctors would not be allowed to prescribe contraceptive pills to her daughters without her knowledge. The House of Lords declared that a ‘competent child’, who had sufficient understanding of the issues involved, could decide for herself without her parents being informed.

 

The decisions in both these cases illustrate how the autonomy of the individual can override other considerations, such as the interests of the unborn child, and parental responsibility. However, such autonomy is not absolute. Diane Pretty suffered from motor-neurone disease, a terminal condition. She wanted her husband to be allowed to help her to end her life peacefully and with dignity. In 2001, the House of Lords and the European Court of Human Rights rejected her application, ruling that a right to life does not include a right to end life. Her application conflicted with broader issues of public morality.

 

Parliament must also confront issues of public morality.

 

The Human Fertilisation and Embryology Act 1990 introduced regulations for the creation, storage and use of human embryos outside of the human body. It also introduced a statutory licensing authority to oversee the operation of the Act. In 2004, as a result of advances in reproductive medicine and changes in public morality, the government began a review of the 1990 Act, leading to the Human Fertilisation and Embryology Bill 2008.

 

 

Among its features are:

 

1                 a new concept of parenthood for a mother’s female partner:

2                 statutory approval to be given to ‘saviour siblings’, i.e. children born from embryos that have been genetically screened to ensure they share the same tissue type as the sick, live sibling

3                 in relation to children born after surrogacy arrangements, same sex couples and unmarried opposite sex couples to enjoy the same rights to parenthood as married couples now an increase in the type of embryo research that will be permitted, including the use of hybrid embryos.

 

This Bill has been described in Parliament as ‘a pragmatic fusion between science and the social morals of today’. Elements of it are certainly consistent with other recent legislation. In 2004, the Civil Partnership Act allowed partners of the same biological sex to enter into a civil partnership giving them the same rights and responsibilities as heterosexual married couples. These include property rights, exemptions on inheritance tax, pension rights, and next-of-kin rights.

 

In 2006, Parliament passed the Equality Act. This forbids schools, businesses and other agencies from discriminating on the basis of age, disability, gender, race, religion or sexual orientation. Under the terms of this Act, adoption agencies have to consider applications for adoption from homosexual couples. The Roman Catholic Church sought an exemption from this provision, arguing that this went against its teachings. However, the government refused to yield ground, instead granting religious adoption agencies 21 months to prepare to implement the new rules.

 

Task: Complete the activity on Law and morality and topical issues by completing the attached research research activity.

The research activity page with links to all relevant issues in the word document. Below are two video clips that may help you understand the issues:

Mandatory life Sentence and the European Convention on Human Rights

Anti terrorsm Laws and search and arrest procedures

 

 

Task: Write the following essay on Law and Morality using the essay plan at this link link.

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 QWC)

 

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