Law and morality

The moral values of any society are hinged upon a combination of the religious and cultural influences within that society. What is considered right and wrong are based upon these influences. Different societies have different moral values and what is acceptable in one society may not be in another.

Utilitarianism:
Historically and traditionally, people believe that "natural law" was derived from a higher power, namely God. However in the 19th century writers such asJeremy Bentham (1748–1832) and John Stuart Mill (1806–1873) rejected the concept of natural law, arguing for a rational man-made view of law. They asked the question: what is the use of law? And their answer was that its purpose was to work towards the greatest good for the greatest number of people and to minimise suffering. [The Open University, (2014), Unit 2]

This became known as utilitarianism. So what does this theory mean in practice?

• Should a country drop a bomb killing thousands and tens of thousands of people in an effort to stop a war in order to ultimately save more lives?
• Should children be mass inoculated, perhaps against parental wishes, to eradicate diseases?

Utilitarianism would support such policies, with the idea that the benefit to the greater numbers outweigh the restrictions on the freedoms of the minority.

Differences between law and morality:
Most behaviour that is immoral can also be illegal. Sometimes however, things that are illegal may not be immoral, and what society considers immoral may not be illegal. Take for example parking on double yellow lines – this is illegal yet most people will not consider it immoral. On the other hand adultery is considered immoral by most people yet it is not illegal.

Legal and moral principles are usually self-evident. Some of the differences between legal and moral principles are:

• Immoral behaviour does not have legal sanctions whereas illegal behaviour does.
• Morality evolves slowly and cannot be deliberately changed. Law is deliberately changed by Parliament/courts.
• Morality is variable and flexible. Law requires a degree of certainty (see Rule of Law)

The interconnection between law and morality:
There are complex connections between law and morality. In modern society there are many people who come from different cultures and religions and the morality they share is minimal. What may be moral to some may not be to others. Law has to find a balance.

However, there are certain things that are seen as abhorrent to most religions and cultures. For example, murder and theft. Criminal law is one area where law and morality merge, though differences lie in punishments in different societies.

But is it necessary to have law based on only moral values? Lord Devlin saw law and morality as being interconnected. Prof Hart disagreed: “he argued that using law to enforce moral values was unnecessary, as society was capable of containing different moral standards without disintegrating. It was also undesirable as it would freeze morality at a particular point and morally unacceptable as it infringes the liberty of the individual.

He set out some reasons why moral censure should not necessarily lead to legal censure:

• It may punish behaviour that may not have proved harmful to another person.
• The exercise of free choice by individuals is a moral value with which it is wrong to interfere.” [The Open University, (2014), Unit 2]

This debate continues today, for example in the debate about assisted suicide. You can read more here.

Next: law and justice.