8 Jan 2016

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.

4 Jan 2016

Law and order in context

“Law is regarded as a formal mechanism of social control. It creates legal obligations and rights that are enforceable, adjudicates disputes, and settles conflicts in a peaceful and regulated way. There is considerable support for the view that the main aim or purpose of law is to provide a sufficient degree of order so that society can function.

 

The rest of the section explores law as a mechanism of achieving political, economic, public and social order.” [The Open University, (2014, Unit 2]

 

Political order:

Political order of any state is strongly supported, indeed it is reliant, upon law. A state’s constitution provides rules on important processes and systems, for example, the way the country is to be governed; the way a government is to be elected; the way laws are made; and sets out a judicial system to apply and enforce the laws.

 

Economic order:

Law also provides a framework that enables the functioning of the economy. It sets out how businesses are created, regulated and operated. It recognises agreements that are legally enforceable (contracts), and specialist rules for different sectors of industry. It also applies rules to prevent exploitation, regulate health and safety, labour et cetera.

 

Public order:

Public order is the socially acceptable behaviour of persons and entities within society, while carrying out ordinary everyday activities.

 

Public order can be threatened by strikes, riots, hate speech, terrorism etc.

 

Public order is maintained in the main by security services like police, and by intelligence service mandated to secure information, and by the CPS and judiciary who assist in enforcing the law.

 

Note: In modern societies there is a belief that balance should exist between public order and the freedom to exercise free speech, express beliefs and to assemble peacefully. The legal limits that is, the balance varies in different societies and cultures, and indeed within different legal systems.

 

Social order:

“Law is a key ingredient in the way society is organised and operates. Society comprises a complex network of institutions, customs, values, and social and economic forces which determine how people interact and live together. Within a society there are considerable differences in individual ability, education and wealth. Some of these are the result of birth; others are due to inequality of opportunity. The question is whether law helps to reinforce the status quo and protect entrenched interests in society, or whether it acts as a force for social mobility. This is a controversial and complex issue. The concept of social justice is concerned with the inequalities of economic wealth in society, and with encouraging social mobility and equality of opportunity.” [The Open University, (2014, Unit 2]

 

Law is an instrument of the government of the day. The elected government will make decisions and policies on education, health care, immigration et cetera. Laws will be created and passed to achieve the objectives of the government. These will be highly regulated by complex legal and administrative frameworks designed to create access to and provision of services. In the main however laws must be fair to everyone and may be challenged if it is unfair. Fairness is determined by the values of society and in the past has resulted in granting of the vote to men over the age of 21 in 1918, then women fully in 1928.

 

“It has become unlawful to discriminate against another person on the grounds of colour, ethnic origin, gender, sexual orientation, religion, disability and age in their access to education, employment and services.” [The Open University, (2014, Unit 2]

 

Next: law and morality