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Jurisprudence involves the study of general theoretical questions about the nature of laws and legal systems, about the relationship of law to justice and morality and about the social nature of law. A proper discussion of these questions invove an understanding and use of philiopical and theroeis and finding inthere appilation to law . footnote
One approach here is the utilitarian theorits, Jeremy Bentham and Austin. These theorists concentrated on the need to distinguish, firmly and with the maximum of clarity, law as it is from law as it ought to be#. They disagreed with natural law thinkers like Aristotle who believed morality comes into law. Natural law thinkers believed that the law was not good if it took away freedom and is morality private or public and should private matters be judged in court. Austin stated Whether it be or be not is one enquiry; whether it be or be not conformable to an assume standard, is a different enquiry. A law, which actually exists, is a law,.-though we happen to dislike it, or though it vary from the text#. Austin also used
The law and moralities overlap and there has been a number of arguments for and agasint these ideas. A number of cases have also questioned this and throughout my essay, I will cite them to show examples to for ones deeper understanding of argument for the enforcement of legal morality. As a result of moralities overlapping society can judge things instantly for instance neightbours may be shocked to find out the person living next door had been engaging in in homosexual sadiomistic activites even though the the neighbour may have been doing it in the privacy of his own home. This is because it is not just the legal codes affected but also the moral code too and so people may find it offensive. A famous debate is that of Hart and Delvin. Another great source is the wofenden Report and the famous harm principle by John Stuart Mill which we will considor in greater detail shortly.
Model reformasim came about because of the Wolfenden report 1957. Devlin stated about the report it is regonised to be an excellent study of two very different legal social problems (footnote 5). To contrast this he doesnt actually agree with the report and this have Hart the basis for this strong viewed reply to Devlin.
The report identifies the current problem that lie behind homosexuality and prostitution. Its main point being that the yonger generation may follow these footsteps and that the law should prevent it but that it is not the laws place to intervene with private lives. However one might think that the younger geneeration is the future and so it is the laws power to protect them even if it does interfere with private life. The report states In this field, its the function as we see it, is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence. It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purpose we have outlined.#
However since the ECHR Act came into force one might say that report infringes the rights in accordance to Article 8(2). Section 8 (1) states: Everybody has the right to private and family life, his home and correspondence. # The Wolfenden Report with regards to prositutes states Those activities which offend against public order and decency or expose the ordinary citizen to what is offensive and injurious: and the simple fact is that prostitutes do parade themselves more habitually and openly than their prospective customers, and do by their continual presence affront the sense of decency of the ordinary citizen. In doing so they create a nuisance which, in our view, the law is entitled to recognise and deal with# and this goes in accordance to Section 8 (2) of ECHR which states: There can be no interference by a public body with the right only if such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others. #
R v Brown is a strong case about privacy and whether that should be taken into account. This case involved group of sado-masochistic homosexuals who over a 10-year period from 1978 willingly participated in the commission of acts of violence against each other, including genital torture, for the sexual pleasure which it engendered in the giving and receiving of pain. The passive partner or victim in each case consented to the acts being committed and suffered no permanent injury. The activities took place in private at a number of different locations, including rooms equipped as torture chambers at the homes of three of the appellants. Video cameras were used to record the activities and the resulting tapes were then copied and distributed amongst members of the group. The tapes were not sold or used other than for the delectation of members of the group. The appellants were tried on charges of assault occasioning actual bodily harm, contrary to s 47 [a] of the Offences against the Person Act 1861, and unlawful wounding, contrary to s 20 [b] of that Act.
The Crown's case was based very largely on the contents of the video tapes. Following a ruling by the trial judge that the consent of the victim afforded no defence to the charges, the appellants pleaded guilty and were sentenced to terms of imprisonment. The appellants appealed against their convictions, contending that a person could not guilty be of assault occasioning actual bodily harm or unlawful wounding in respect of acts carried out in private with the consent of the victim. The Court of Appeal dismissed their appeals. The appellants appealed to the House of Lords. The House of Lords dismissed there appeals also. Lord Templeman for the majority stated******( write more). Lord Mustill disagreed believing that the question in this case was about Offences against a person Act Section 20 and the law should be implemented correctly and not on the basis of morality. More so with regards to freedom and privacy new liberalism is represented by P.F Strawson in his paper Social Moraity and Individual Idealhe argues for the freedom of individuals to bring into effect a variety of different and conflicting ideals of life within the framework of a common social morality. Freedom is valued not on the ground that it is the best, or perhaps even the only, means of promoting the discovery of new truths, for the new liberal does not believe that there is a truth about life; but rather freedom is valued because it promotes ethical diversity which is regarded as intrinsically good.#4