Law Can Be Understood Without Reference To Morality

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Whether or not morality impacts the law has been a long-standing debate between many theorists. This essay will begin by discussing the theories that believe morality has no place within the law such as positivism, as they believe the law is man-made by humans and those in power, it is not considered as law if it is not made. The essay will then go onto discuss the theories which criticise this point of view such as natural law theory who believe that the law is always motivated by morality.

The statement in the question is favoured by positivists. Positivists believe that law and morality are separate and there’s no connection between them. They believe that laws are commands of human beings. Bentham defines the law as “the command of a sovereign backed by a sanction,” however there are problems when identifying who the sovereign is. Austin goes onto define the sovereign as a person or collective whom the population habitually obeys. Hart mentions how there are many legal rules that don’t command or impose sanctions but is there as a guide. An example of this is marriage, the law doesn’t command anyone to marry, but sets out the procedure they should follow to make their marriage legally valid, there is no sanctions for not getting married. This command model described has its problems as it doesn’t consider the complex nature of the law. Under this view the law expects us all to be the same but society will always challenge that as it is constantly changing due to its diversity, so it can be argued that law cannot be understood without morality. It is also monistic, saying the law is set out in a single form and the same set of laws apply to everyone.

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Hart has gone onto develop positivism, he believes that the legal system is governed solely on rules, that of which there are primary and secondary rules. Primary rules can be enforced by those in a small society but the bigger society gets, secondary rules are needed, and these are enforced by officials such as judges. The rule of recognition is what Hart describes as “what the queen in Parliament enacts is law,” this causes some problems as there is the issue of case law and precedent.

Positivists argue that the laws exist whether they are moral or not. Natural law theorists criticise positivism as they believe that there is a higher law which is derived from a supreme (non human) authority. They believe that “if law is not moral, then it is not law and has no authority.” Fuller claims that a legal system which doesn’t have the following; generality, promulgation, non-retroactivity, clarity, consistency, realism, constancy and congruence is not a legal system at all. He gives the example of Nazi Germany, because the law failed to meet the above criteria it meant that those laws were not really laws.

There have been many case law in which legal issues and morality has been discussed. In the case of R A (Conjoined Twins) the court stated that “it was not a court of morals but a court of law and our decisions have to be taken from a solid base of legal principle” In this case, a operation was needed to separate conjoined twins as one of the twins could live a normal life whereas if they remained joined they would’ve died. The judgement made is based around the sanctity of life “which itself is a moral commitment,” this shows how morality is needed in the law even if the courts don’t want to accept it.

Another case in which law and morality was discussed was the case of Gillick v West Norfolk and Wisbech Area Health Authority, where Mrs Gillick objected to girls under 16 receiving contraceptive advice without parental consent. The court held that it was lawful if the girls were mature enough to understand. This case brings up a few issues regarding whether law and morality should be separated. Everyone has a different opinions, in this case, Mrs Gillick rejects the idea of under-age girls receiving contraception however some people may think that these girls would be engaging in sexual intercourse anyways, so it would be more moral in a sense to protect girls by giving them contraceptive advice. The problem here is whose moral opinions should the law adopt? How do you cater to different groups of morality at the same time? These are the problems with putting morality above everything else.

The Hart-Devlin debate

The issue of legalizing homosexuality and prostitution by the Wolfenden Committee was debated by the two theorists Hart and Devlin, Hart who took a positivist position and Devlin who took a natural law position. “The Wolfenden report claimed that it is not the duty of the law to concern itself with immorality” Devlin’s argument was that some morality was needed to keep society together. Support for Devlin’s argument comes from several cases one case being Shaw V Director of Public Prosecutions where a booklet contained adverts by prostitutes and he was convicted of conspiring to corrupt public morals and the courts upheld this decision.

In conclusion, there will always be debate about whether morality fits into the law, the positivist theory focuses on what the law is and focuses on rules and sanctions, it is too simplistic as it doesn’t consider society will continue to change and therefore the laws will have to change to keep up with society. One recent example which supports the need for morality within the law is the events that happened in New Zealand which caused the Prime minister to declare that their gun laws will change, this shows that morality is needed within the law and for the law to be understood properly.  


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