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The Law Should Not Interfere In Private Morality Law Essay

In order to understand the nexus between law and morality we need to establish the differences. Laws are sets of rules or boundaries established by authorities that should be obeyed and are formally enforced by the Police or the Criminal Prosecution Service. Morals on the other hand are belief, values or principles that are determined by society or certain aspects of society, determining what is right and what is wrong. Morals do not have to be complied with they are normally informally enforced through social or domestic pressures. Both laws and morals specify what should or should not be done and mark the boundaries between what is acceptable and unacceptable conduct. Having looked at the nature of Laws and morals I will look at the historical debate and attempt to expand on whether or not Laws and morals are intrinsically linked.

Historically, there has been much philosophical debate as to whether in fact there is a connection between law and morality. Positivists [2] such as Jeremy Bentham, John Austin and H.L.A. Hart have all argued that there is not necessarily a connection between law and morality; on the other hand natural law [3] thinkers such as St Thomas Aquinas [4] have postulated that there is a clear link between law and morality. To further complicate matters R Dworkin puts forward his own approach of “interpretivism” [5] , developed in a number of his works over the last thirty years [6] to try and answer the vexed question of law and morality and the nature of law.

The links between law and morality can be seen in all areas of law, in Tort for instance in cases such as Baker v Hopkins [7] and Chadwick v British Railways Board [8] relating to the courts attitude towards rescuers and in property in cases such as the High Trees Case [9] when the courts enforced a promise these are all instances of the courts making moral judgements on what is right and wrong and in the case of Knuller v DPP the courts were able to dictate public morality recognising the common law offence of ‘conspiracy to corrupt public morals’. However, it is the criminal law that provides us with sufficient evidence to conclude that there is indeed a link between law and morality.

When you look at the Wolfenden Report itself, this actually concerned the role of the law had in matters of sexual morality and determining what conduct should be classed as criminal. Unfortunately, the result was not definitive as two diverging views emerged, firstly, that of Lord Devlin who intimated that legislature was entitled

‘ to outlaw behaviour that was generally condemned as immoral on the grounds that such conduct may be likened to treason threatening the continued existence of social cohesion’ [10] and secondly, the view of Hart that

‘immorality alone was not sufficient: law should not be used for prohibiting harm suffered by a person who is offended simply by knowing about other people’s conduct’ [11] .

These opposing viewpoints probably accounted for the fact that the part of the Wolfenden Report concerning the decriminalisation of homosexuality wasn’t implemented until the Sexual Offences Act of 1967 (following a motion by Lord Arran in the House of Lords favouring the implementation of the Wolfenden Report and a Sexual Offences Bill sponsored by Leo Abse) which eventually resulted in male homosexuality between consenting adults above the age of twenty-one being decriminalised. Another reason for the delay could be that public opinion and society in general before that time, felt that homosexuality was ‘immoral’ and the law chose to reflect this condemning homosexuality as a criminal offence, however, with the more liberated 1960’s where there was a seeming relaxation of public and private morality and homosexuality could no longer be seen as immoral, the criminal law acceding, leading to the eventual decriminalisation of homosexuality.

However, the Wolfenden approach differed when contemplating the matter of prostitution, the committee readily accepted that prostitution was immoral but indicated that it was a matter of private morality, except when it creates a public nuisance. Therefore the sale of sex was determined not to be an offence but kerb crawling was. This differing approach resulted in the report forming the basis of the basis of the Street Offences Act of 1959 an almost immediate response to the Wolfenden report.

It seems then, that the criminal law should only intervene where legislature considers there to be a public nuisance or is harmful to society or as John Stuart Mills stated

‘That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.’ [12] 

Unfortunately, there are too many unanswered questions can we readily say that if something is immoral is it justifiably unlawful? Can we as a society distinguish between one person’s perception of a lawful and moral activity and those that are immoral or unlawful and should the law interfere in matters of private morality? If a person consents to something isn’t this a matter of private morality?

The matter of consent and private morality is interesting, here the criminal law has its vagaries, in fact, particularly in non-fatal offences against the person (which includes actual body harm, grievous bodily harm or wounding) the criminal law will not allow the consent of the victim to be available as a defence, especially if it considers the act to be unlawful. Only if the injury was a result of a ‘lawful activity’ [13] will the defence of consent be available. This does not sit easily with the premise of the law not to interfere in matters of private morality. This has been exemplified in the case of Brown [14] where the criminal law deemed homosexual sado masochism as an ‘unlawful activity’ the court considered that activities in private between consenting homosexuals involving the infliction of actual bodily harm should constitute offences [15] . It seems then that here the decision was based on public morality rather than criminality, surely here consent would be a question of private morality and not the law’s business indeed in Brown, Lord Mustill in dissenting, re-iterated that

‘The issue was not whether the appellants' conduct was morally right but whether it was properly charged under the 1861 Act. The standards by which questions of private morality fell to be judged were not those of criminal law.’

Brown can be contrasted with the case of R v Wilson (1996) [16] where the defendant with his wife’s consent, branded her buttocks with the initials W and A with a hot knife. The scars led him to being charged with assaulting his wife contrary to section 47 of the Offences Against the Person Act 1861. Ultimately, he was convicted by a Jury, however, the court of appeal held that the defendant’s conduct amounted to ‘tattooing’ and that it was not in the public interest to impose a criminal sanction; The initial outcome still shows that the public and their moral views still has an influence in criminal law. 

It appears then, that generally, the courts are keen to exercise its ‘morality’ muscle in defence of a perceived public morality. Interfering in what are essentially private morality matters in order to stamp a moral dictum on society in general, however, this is not necessarily in the best interest of society as a whole and public morality is a thorny issue.

There are of course other areas of criminal law where the judiciary has, albeit slowly, intervened in matters of private morality, for the betterment of society, for example, in the area of marital rape. Rape itself was enacted as statutory crime in the Offences Against the Person Act 1861. The Act indicated that ‘it is a felony for a man to rape a woman’ and left the judiciary to establish the elements of the offence and to develop the factors that might allow consent. Its statutory successor, s 1 of the Sexual Offences Act 1956, failed to provide a more substantive definition. It was not until 1976 that s 1(1) of the Sexual Offences (Amendment) Act defined rape as ‘unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it’. However, there still seemed to be a presumption albeit rebuttable, that a married man could have sex with his wife regardless of consent. Morally, this appears to be reprehensible surely the law should have clarified its position, however, it wasn’t until the case of R v R [17] that the offence of rape was recognised if it was perpetrated by the husband, clearly an example of the law enforcing a specific moral value on society in an appropriate sphere.

A further example of the entanglement of law and morality can be seen in the differing approaches by Judges in cases where their own moral values or viewpoints have possibly affected judgements. Often the courts will find themselves dealing with difficult moral decisions involving life and death and often have to decide between individual rights and moral codes. This moralistic approach can be seen in various cases involving euthanasia considered by the majority of society as both morally and legally wrong. In the case of Dianne Petty [18] (a case decided by the House of Lords), for example, who suffered from motor neurone disease, a progressive degenerative illness from which she had no hope of recovery. She only had a short time to live and faced the prospect of a humiliating and distressing death. She was mentally alert and wanted to bring her life to an end. Unfortunately, because of her physical incapacity she would have needed assistance, her husband wanted to help, but only if he would not be prosecuted under section 2(1) of the Suicide Act 1961 for aiding and abetting her suicide. She sought confirmation through the courts that ultimately refused her appeal. Contrast this with the case of Re B [19] Ms B was a tetraplegic and suffered complete paralysis from the neck down, she was able to move her head and speak. She gave formal instructions to the hospital through her solicitors that she wished artificial ventilation to be removed. The hospital refused to stop treatment Ms B took the hospital to court, was successful and was allowed to die. Here the courts appear to take the stance that voluntary euthanasia or assisted suicide is morally reprehensible but the request to withdraw treatment, resulting in effect voluntary suicide or “passive euthanasia” was not.

Further evidence of the dilemma between law and morality can be seen in the conjoined twin case [20] here, despite LJ Ward’s comment that “this is a court of law, not of morals” [21] when you actually read the judgements it is clear that they have used moral concepts and language in reaching their decision..

In conclusion, it is clear from the information provided that there are identifiable links between the criminal law and law in general. However, whether it is justifiable for the legal system in England and Wales to utilise the criminal law in the enforcement of specific moral values in society is debateable, clearly as we have seen there are areas where it is justifiable, murder and rape for example but where it is not so clear is whether it can be justified in those greyer areas such as private morality issues or cases of euthanasia.

I believe that religion, morals and the law are all intrinsically linked and that in order to create a balanced modern society there must be some fluidity. One man’s morality is different from another and the law must try to bridge the gap for the public good. Sometimes the law is rather slow in reacting to public opinion or changes in morality within society, but ultimately, it is the legislature that creates the laws and the job of the courts is only to apply the meaning of that legislature not to query its validity or to enforce moral limitations on parliament or by implication, enforce those moral limitations on society.

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