LAW AND MORALITY

Introduction
The Nature of Law and Morality
Similarities and Differences Between Law and
Morality
Relationship/Connection Between Law and
Morality
Law, Freedom, Morality and Social Change
Enforcement of Morality by Law
Conclusion
 LAW AND MORALITY

Introduction:
• Like law, morality plays an important part in the shaping and regulation of
societies. There is also a certain amount of overlap between law and morality as
often law gives expression to the accepted standards of morality within the
society, even if it does not directly legislate for it. In other words, there seems to
be quite a strong connection between law and morality. Although people
sometimes say “you shouldn’t legislate morality”, they presumably don’t mean
this- why would we outlaw rape and murder if they weren’t wrong?
• The issue or question of law and morality could be tackled from different angles.
For example, natural lawyers claim that there are certain universal, objective and
immutable principles of right and wrong that are part of the fabric of the
Universe. These principles can be discovered by man. Man needs to reflect upon
his nature and the universe about him. He has to reason why things are as they
are. And by the process of syllogistic deduction he can distil principles of
morality and justice. Man-made law must conform to these principles if it is to
be valid. This is the necessary casual connection between law and morality.
 LAW AND MORALITY

Introduction: (Continuation)
• Hart as a positivist does not subscribe to such doctrinaire. According to him,
there is no higher law from which law obtains its validity and authority. To
the positivist, law is valid irrespective of its substantive morality. Validity is
determined by a formal test. For Hart law is valid if it satisfies the criteria
stipulated in the rule of recognition. Hence, there is no necessary connection
between law and morality.
• In addition to the above, some have thought that law must, by its nature have
certain distinctive moral aims. Thus, if it lacks those aims it is not law. For
example, it must be just, serve common good or aim to justify coercion or aim
to be in some other way morally binding or morally successful.
• All in all, law and morality, though interrelated, are perceived by most
Western lawyers to be two distinct and separate spheres. In contrast, the
impact of Islamic law on society is pervasive and far-reaching, for Shari’ah is
an all-inclusive system combining both the legal and moral realms.
 LAW AND MORALITY
The Nature of Law and Morality:
• Philosophical thought about the nature of law and morality has fallen into two
broad camps. Legal positivism is of the view that law is best understood as a
sociological phenomenon, a particular way of structuring social life. For the
positivists, it is essential to the nature of law that it can be identified without
appeal to controversial moral arguments. Law is thus identified with positive
law, that is law that has been promulgated or enacted in appropriate ways.
• Different positivists have different views for the necessary and sufficient
conditions for appropriate enactment. Some make the command of the
Sovereign essential (John Austin); others the existence of structure for
changing laws (Hart) and many more. Whatever their other differences,
positivists share the view that it is essential to a legal system that what the law
is can be established without considering what the law morally ought to be.
(See the position taken by Hart regarding Nazi laws)
 LAW AND MORALITY
The Nature of Law and Morality: (Continuation)
• In addition to the above, opposed to positivists are defenders of natural law,
according to whom a system of official power only qualifies as a legal
system if it meets certain moral demands. Natural lawyers differ on what
those demands might be, but share an insistence that the difference between
the rule of law and other ways of organising power can only be drawn in
terms of fundamental moral conceptions at the heart of a legal system.
Hence, it would be right to state that the essential discussion surrounding
natural law is as to whether morality is a necessary part of legal validity. In
other words, is it right to say that at the heart of natural law it asserts that
rules, which contravene certain ‘natural’ criteria lose their pedigree to be
called ‘law’ even if they satisfy all the formal characteristics of law making.
(This seems to concur with Lon Fuller’s view of ‘inner morality of law’).
 LAW AND MORALITY
The Nature of Law and Morality: (Continuation)
• Still in addressing the nature of law and morality, perhaps it is important to
point out that law, unlike morality, law is made by someone. So it may, unlike
morality, have aims, which are the aims of its makers (either individual or
collectively). Not all law has aims, however, because not all law-making is
intentional. Customary law is made by convergent actions that are performed
without the intention of making law, and so without any further intention to
achieve anything by making law, i.e. without any aim. (See Hart’s distinction
between moral obligation and legal obligation in the context of his moral
principle of Nulla Poena Sine Lege- the Grudge Informer Cases)
• Regardless of what is reiterated above, Some have thought that law must, by
its nature, have certain distinctive moral aims when it has aims at all. If it
lacks those aims it is not law. It must aim to be just, or aim to serve the
common good, or aim to justify coercion, or aim to be in some other way
morally binding or morally successful.
 LAW AND MORALITY

The Nature of Law and Morality: (Continuation)

• In addressing the nature of law and morality, it is equally important to
make cross-reference to the Shar’iah position. For example, law and
morality though interrelated, are perceived by most Western lawyers to
be two distinct and separate spheres. In contrast, the impact of Islamic
law on society is pervasive and far-reaching, for Shari’ah is an all-
inclusive system combining both the legal and moral realms. Shari’ah
has guided the development and performance of not only legal
institutions, but also those of other institutions and agencies of society,
including governmental, business, and educational institutions. This
aspect of Islamic law can partially explain to us the success the law had
in transforming heterogeneous and incongruent societies into one
relatively homogeneous political community during the early centuries
of Islam.
 LAW AND MORALITY

The Nature of law and Morality: (Continuation)

• Having looked at the nature of law and morality from three different
perspectives, it would suffice that to the positivists for example, in
identifying the claims of law, the place to begin is with the language
that legal officials use. In setting out or explaining legal norms, officials
cannot but use the language of obligations, rights, permissions, powers,
liabilities and so on. What they thereby claim is that the law imposes
obligations, creates rights, grants permissions, confers powers, gives
rise to liabilities, and so on. One might think that the claim here need
not be a moral claim. Officials need be claiming only that there are
legal obligations, legal rights, legal permissions, and so forth, not
moral ones. (See Hart’s view on the position of officials while
accepting a set of a given rule)
 LAW AND MORALITY
Similarities and Differences Between Law and Morality:
(a) Similarities/Connections
• There is no doubt that to a certain extent law and morality do possess some similarities
from Western jurisprudential thought. The similarities are:
i. Defending basic values
• The existence of laws that serve to defend basic values--such as laws against murder,
rape, malicious defamation of character, fraud, bribery, etc. --prove that the two can work
together or share common similarity. See Hart’s view on the importance of morality in
law creation i.e. paternal morality (saving people from harm).
ii. Sense of obligation
• The sense of obligation is present in both law and morality. For example, laws govern
conduct at least partly through fear of punishment. On the other hand, morality, when it is
internalized, when it has become habit-like or second nature, governs conduct without
compulsion. The virtuous person does the appropriate thing because it is the fine or noble
thing to do. (See Hart’s view on social rules which carries legal obligation as opposed to
moral obligation)
 LAW AND MORALITY
Similarities and Differences Between Law and Morality:
(a) Similarities/Connections
• There is no doubt that to a certain extent law and morality do possess some similarities from
Western jurisprudential thought. The similarities are:
iii. Influence of morality on law
• Morality can influence the law in the sense that it can provide the reason for making whole
groups of immoral actions illegal. For example, incest, prostitution (in certain jurisdictions),
homosexuality (in certain jurisdictions), etc. See also the decision of the court in the case of
Shaw v DPP- where the court coined the phrase ‘offences which are prejudicial to the public
welfare’.
iv. Law can be a public expression of morality
• Law can be a public expression of morality which codifies in a public way the basic principles
of conduct which a society accepts. In that way it can guide the educators of the next generation
by giving them a clear outline of the values society wants taught to its children. (See the
provisions of the Federal Constitution of Malaysia on equality (Art 6, Art 8(1), Art 11(1), etc).
See also laws against sexual discrimination, sexual harassment and many more.
 LAW AND MORALITY
Similarities and Differences Between Law and Morality:
(a) Similarities/Connections
• There is no doubt that to a certain extent law and morality do possess some similarities
from Western jurisprudential thought. The similarities are:
v. Understanding the way both law and morality operates
• We understand law and morality in terms of belief-desire psychological theory. That theory
claims that any human action can be explained solely in terms of the beliefs and desires of
the agent. For example, If I turn on a heater, this may be because I desire to be warm, and I
believe that turning a heater will achieve this end. To apply this to our current topic,
consider how society can influence the actions of its members. According to belief-desire
psychology, there are two broad options: change someone’s beliefs, or change their desires.
Morality, by this understanding, corresponds to the latter option. That is, morality is a
system of socialisation whereby society instills in its members the desire to act in certain
ways. The other method of influence is to alter people’s belief about how best to fulfill
their desires. This is where law comes in. Its role (according to this interpretation) is to
serve as a deterrent for those who, for whatever reason, fail to be bound by morality.
 LAW AND MORALITY
Similarities and differences between law and morality:
(a) Similarities/Connections
• There is no doubt that to a certain extent law and morality do possess some similarities
from Western jurisprudential thought. The similarities are:
vi. Real nature of law or its substance
• To study the real nature of law is to recognise and analyse those unformulated rules
of conduct accepted within a society; these ‘vital rules’ are often of greater
significance than the ‘lifeless provisions of codes’. Law can be comprehended only as
a function of society. See also Hart’s ‘minimum content of natural law’. Hart viewed
law as a social phenomenon/social control and its study involves the recognition of
the ‘characteristics of human condition’ i.e. human vulnerability, approximate
equality; limited altruism (human altruism is limited); limited resource; and limited
understanding and strength of will. These five ‘characteristics of human condition’
Hart refers to it as the ‘Minimum Content of Natural Law’. However, he made it very
clear that it is devoid of any moral philosophy.
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Similarities and Differences Between Law and Morality:

(b) Differences
• Jurists (especially positivists) have argued that law and morality are two
different things on the following grounds:
i. Law is concerned mainly with society e.g. prescribes rules as to how an
individual should behave with another, and the state. See Hart’s key to
the science of jurisprudence i.e. the operation of primary and secondary
rules. Primary rules are duty imposing and secondary rules are power
conferring. See also John Austin’s definition of the term ‘law’ as a
command of the Sovereign. On the other hand, morality is concerned
mainly with an individual (i.e. not to lie to your parents, respect for the
elderly, etc). Morality prescribes rules for making his character and
conduct excellent.
 LAW AND MORALITY
Similarities and Differences Between Law and Morality:
(b) Differences
• Jurists (especially positivists) have argued that law and morality are two
different things on the following grounds:
ii. Law is backed by legal sanctions. They are immediate, determinate and
predictable. See Austin’s argument that law is a command of the Sovereign
backed by sanction. See also Hart’s view stating that rules which take the form
of law- even if a rudimentary of primitive kind of law. A rule will come into this
category if the pressure for conformity includes physical sanctions against a
person who breaks the rule-even if the sanctions are applied, not by officials, but
by the community at large. On the other hand, morality is backed by social
pressure and public opinion. They are remote, indeterminate and not predictable.
Hart argued that in its nature morality has significant differences with law. For
example, rules of morality are immune from deliberate change. There is the
voluntary character of moral codes. There are unique forms of moral pressure
surrounding moral wrongs. To these, Bodenheimer adds other differences. For
moral offences, there is uncertainty regarding sanctions.
 LAW AND MORALITY
Similarities and Differences Between Law and Morality:
(b) Differences
• Jurists (especially positivists) have argued that law and morality are two different
things on the following grounds:
iii. The rules or laws can be created, amended or destroyed overnight. See Hart’s
secondary rules comprising of rule of recognition, rule of change and rule of
adjudication. See also how Adolf Hitler’s regime created notorious law during the
Nazi period to exterminate the Jews. See also Apartheid laws in South Africa
during the reign of the Whites. On the other hand, ordinarily, the rules (morality)
do not change at all. If they do change, they take a long period of time.
iv. As to law, legal duties are imposed on the individual without his consent. For
example, road users have a legal duty to drive at only 110 km/hr on a highway
without their consent; to stop when the traffic lights turn red, etc. In some cases,
law will not allow him (an individual) “to contract out” of its demands, e.g.
labour legislation. On the other hand, morality can be accepted or rejected
altogether. For example, one may decide to respect or not to respect his or her
parents.
 LAW AND MORALITY
Similarities and Differences Between Law and Morality:
(b) Differences
• Jurists (especially positivists) have argued that law and morality are two different
things on the following grounds:
v. Law derives its existence from a normal man-made standard. This could be supported
by virtue of the existence of unjust laws (such as those enforcing slavery) proves that
morality and law are not identical and do not coincide. See also laws gay marriages in
certain jurisdictions today is considered legal, gender reassignment or sex change
considered legal as well (see the UK Gender Recognition Act 2004), law on
euthanasia, etc. On the other hand, morals derive their existence from forces which are
supernatural. See the view of St Thomas Aquinas arguing on the basis of certain
universal, objective and immutable principles of right and wrong that are part of the
fabric of the universe. These principles can be discovered by man. Man needs to reflect
upon his nature and the universe about him. He has to reason why things are as they
are. And by the process of syllogistic deduction he can distil principles of morality and
justice. Man-made law must conform to these principles if it is to be valid.
 LAW AND MORALITY
Similarities and Differences Between Law and Morality:
(b) Differences
• Jurists (especially positivists) have argued that law and morality are two
different things on the following grounds:
vi. As to law, an individual is to submit to the will of the organised society. In
other words, law shows concern for the conduct of the individual, for which it
lays down standards. See for example security laws, criminal law, etc. On the
other hand, under morality or morals, individual is subjected to the dictates of
his conscience i.e. Its morally wrong to lie to your parents, morally wrong to
mistreat them, etc. Thus, morals are end in themselves. They are good in
themselves and therefore they should be followed.
vii. Law should have “minimum effectiveness”, that is, obeyed by some people.
See Kelsen’s theory of effectiveness. See also Hart’s approach in distinguishing
between a legal obligation and moral obligation. See also Austin’s view on
effectiveness of the law. On the other hand, as to morals, an individual can
believe in particular type of morality.
 LAW AND MORALITY

Similarities and Differences Between Law and Morality:

(b) Differences
• Jurists (especially positivists) have argued that law and morality are two
different things on the following grounds:
viii.Law depends on what is necessary for the time and place. It comprises
actual standards adopted in the life of the community. It varies
according to the philosophy of the society. For example, in Malaysia we
have the ISA and its existence could be justified. On the other hand,
morals depend on those rules which are good in themselves. They
consist of absolute ideals, which are generally of universal value. There
sphere does not change.
ix. The primary concern of law is with external actions of individuals and
secondary concern is with motives and generality. As to morals, primary
concern is with inner conscience and motive and secondary concern is
with the external actions of individuals.
 LAW AND MORALITY
Relationships/Connections Between Law and Morality:
• As stated in the introduction above, there seems to be quite a strong
connection between law and morality irrespective of the different views
shared on the subject by different jurists. For example, law and morality,
though interrelated, are perceived by most Western lawyers to be two distinct
and separate spheres. See the views of the positivists.
• In order to understand the relationship/connection between law and morality,
it is of paramount importance to pay attention to some of the views
addressing the subject matter at hand. The following are some of the views or
opinions:
(a) Natural law
• Natural lawyers i.e. classical natural lawyers argued that law and morality
cannot be separated. They argued that the substance of law must be moral.
For example, Socrates- He states that like physical law there is natural law.
He put forth an absolute philosophy. He pleaded that principles of morality
should not change. According to him, in order that law may become the
embodiment of correct reasoning, one had to use reason and apply “insight”
into the nature of conduct. In other words, man possesses insight and this
insight reveals to him the goodness and badness of things and makes him
know the absolute and eternal law.
 LAW AND MORALITY
Relationships/Connections Between Law and Morality: (Continuation)
(a) Natural law
• To Cicero, natural principles like justice and morality are discoverable by reason
and above all human laws cannot override these principles i.e. they are supreme.
Thus, natural law could ‘strike down’ positive laws which contravene natural law
(like a Legislature making lawful theft or forgery of wills or adultery lawful). See
also the view of St Thomas Aquinas that law which fails to conform to natural law
or divine law is not law at all. He referred to it as ‘corruption’ of law. Hence, unjust
laws do not oblige in conscience. This is normally expressed in the maximum ‘lex
iniusta non est lex’ (unjust law is not law).
• All in all, the issue is whether morality is a necessary part of legal validity. In other
words, is it right to say that at the heart of natural law it asserts that rules, which
contravene certain ‘natural’ criteria lose their pedigree to be called ‘law’ even if they
satisfy all the formal characteristics of law making. (This seems to concur with Lon
Fuller’s view of ‘inner morality of law’).
 LAW AND MORALITY
Relationships/Connections Between Law and Morality: (Continuation)
(b) Legal positivism
• Legal positivism’ is used to signify a doctrine which rejects any metaphysical
speculation concerning law. In other words, it is considered as a view of law
which takes into account the positive law only i.e. law as it ‘is’ and not law as
it ‘ought’ to be. Hence, to the positivists, law is valid irrespective of its
substantive morality. For example, Hart in Chapters 8 and 9 of ‘The Concept
of Law’ expounds his view of morality. He claims that there is no necessary
connection between law and morality. Validity is determined by a formal test
(i.e. rule of recognition). As to the connection between law and morality, Hart
insisted that the connection was not a necessary one. The connection was
casual and not causal. Law can exist without morality. Law can be moral,
immoral or amoral. Legality is one thing; morality is another. (See the Nazi
laws from Hart’s perspective). However, this does not mean that he has no
view on morality. In ‘Liberty, Law and Morality’ Hart discusses the role of
morality in law creation. Hart subscribes to paternal morality (to save people
from harm) and does not approve conventional morality as propounded by
judges like Lord Devlin.
 LAW AND MORALITY
Relationships/Connections Between Law and Morality: (Continuation)
(b) Legal positivism
• Furthermore, another positivist by the name of Hans Kelsen’s came up with his
‘pure theory of law’. This is to rid law of any kind of ‘impure’ elements. He said
that a theory of law must be free from ethics, politics, sociology, history, etc. It
must in other words, be ‘pure’. However, he did not deny their value: all he said
was that a theory of law must be clear of them. Kelsen argued that a theory of law
must deal with law as laid down and not as it ought to be. See also the view of John
Austin who viewed law as a command of the Sovereign.
• All in all, the ‘separation thesis’ on which legal positivism rests is on the belief or
assumptions that the questions of what ‘is’ law is separate from what law ‘ought’ to
be. This is to say, proper role of legal philosophy is not to speculate about morality
but to come to understanding about the nature of legal systems. Hence, the term
‘legal positivism’ can best be summarised by this statement: “The existence of law
is one thing; its merits and demerits another, whether it be or be not comfortable to
an assumed standard is a different inquiry”.
 LAW AND MORALITY

Relationship/Connection Between Law and Morality: (Continuation)

(c) Sociologists
• Sociological enquiries made the impression that law, morality, religion,
philosophy, art, aesthetics and politics take their sustenance from society and,
therefore, it is not only relevant but imperative to pay attention to the nature
of society to understand the nature of law, morality, etc. According to the
social school of jurisprudence, if law depends to some or great extent on
social facts, it is imperative to explore the extent to which law’s dependence
rests on them and how far in its turn can influence them. For example,
Bentham’s doctrine of utilitarianism rejects concepts of morality/justice
based on reason; to Bentham, it should be based on consequences. In other
words, morality depends on consequences. (See his view on legal issues such
as abortion, euthanasia, capital punishment, etc)
 LAW AND MORALITY

Relationship/Connection Between Law and Morality:

(Continuation)
• All in all, the connection between law and morality - or the
lack thereof - is the problem of legal philosophy. The basic
positions are simple. Positivists claim that there is no
necessary connection between law and morality (the separation
thesis), and non-positivists claim that there is (the connection
thesis). For positivists, the definition of law only includes two
elements: “social efficacy” and “proper promulgation.” Non-
positivists add morally “substantive correctness” or “justice”
as a necessary third element.
 LAW AND MORALITY

Law, Freedom, Morality and Social Change:

• What do they all share in common in a given society? Take for instance
the relationship between law and freedom. Law may give you the
freedom to do certain things but with limitations or restrictions (See Art
10(1)(a),(b) and (c) of the Federal Constitution on freedom of speech,
assembly and association and as well as Art 10(2)(a),(b) and (c) on the
restrictions/limitation). See also Art 11(1) on freedom of religion and
many more.
• Still on the issue of law and freedom, somehow by putting together the
words law and freedom, there is inside of us a sense of contradiction
and frustration. Take the issue of seat belts. The law says you shall wear
a seat belt when you are driving down the road in your car. There are
people who still feel that the law for seat belts takes away their freedom.
It’s my freedom to decide for myself if I want to wear a seat belt or not.
There are many issues of the law- bike helmets, speed on the road,
parking in spots reserved for handicapped that many feel take away
their freedom.
 LAW AND MORALITY
Law, Freedom, Morality and Social Change: Continuation)
• In addition to the issue of law and freedom, perhaps it is important to note that in
today’s context we are faced with more pressing challenges while addressing the
relationship between law and freedom. For example, how would you respond to
anti-gay legislation? See also pro and anti-abortion camps and many more.
• Turning now to law and morality, this relationship has been discussed in depth
ranging from the nature of law and morality, similarities and differences,
connection/relationship between law and morality in the earlier part of the
discussion. Perhaps what is important here is to make cross-reference to Lord
Devlin’s arguments. Devlin discusses the question: “What is the connection
between crime and sin and to what extent, if at all, should the criminal law of
England concern itself with the enforcement of morals and punish sin or
immorality as such?” In answering this question, Devlin poses other questions.
“Has society the right to pass judgements at all on matters of morals? Ought
there ... To be a public morality, or are morals always a matter of private
judgement?” Devlin believes that there is always something as a public morality.
Morals are not a matter to be judged by private opinion and the society has a
right to judge matters of morals. Hence, the society may use the law to preserve
morality in the same way as it uses it to safeguard anything else that is essential
for its existence.
 LAW AND MORALITY
Law, Freedom, Morality and Social Change: Continuation)
• As to the relationship between law and social change, it is vital to first of all look into the
meaning of ‘social change’. The term is often used in a broad sense to refer to the existence of
something that did not exist previously or the absence of something that existed previously. A
question often debated in the law literature is whether law should or can be deliberately used as a
means of change and reform in society or it should merely follow and support the existing norms
and changes that take place due to other factors. On this question there are two contrasting
views:
i) Law should not attempt at changing society, but should essentially follow the existing norms by
which society is governed. The view is based on the assumption that every society has its own
notions, customs and ways of life which have gradually developed over a long period of time
and have come to be so deeply rooted in the social structure that law can hardly be effective to
change them. Law is an effect of social change rather than a cause. Savigny, the founder of
German historical school of jurisprudence, argued that law, like language, evolves with the life
and character of a people. Thus, Savigny’s argument was that law was ‘found’, and not ‘made’.
ii) Law should be used as a tool of change. This is because, law is active, dynamic, and has great
potential to bring about desired changes. Thus, in contemporary societies, law is seen as clearly
distinct from the society it regulates and can be used as an independent agency of social
regulation and control.
 LAW AND MORALITY
Enforcement of Morality by Law:
• The links between law and morality constitute the subject-matter of an age-old
jurisprudential debate. Ought the law to concern itself with morality? Ought the law to
reflect shifts in public opinion concerning moral questions. What significance ought to
be attached to Lord Simonds’ assertion in Shaw v DPP (1962) that the courts retain a
residual power, where no statute has intervened to supersede the common law, to
superintended those offences which are prejudicial to the public welfare? Ought the
law to intervene in order to prevent an individual’s chosen course of action which
moves him along ‘the primrose way to the everlasting bonfire?’ (See the decision of
the House of Lords in R v Brown (1993)- where the court held that consent is no
defence to sado-masochistic assault).
• JS Mill argued, that the only purpose for which power can be rightly exercised over
any member of a civilised community, against his will, is to prevent harm to others.
This statement could be understood as addressing the relationship or connection
between law and morality although commentaries have questioned the precise
meaning of ‘harm’- did it refer exclusively to physical injury? Ought it to include
mental, emotional injury? What is meant by ‘others’? Does it include, for example, a
foetus? How should Mill’s doctrine be applied to, say, adultery, or the use of
cannabis?
 LAW AND MORALITY
Enforcement of Morality by Law: Continuation)
• Furthermore, Korkunov, in his Theory of Law (1900), states: “The distinction
between morals and law can be formulated very simply. Morality furnishes the
criterion for the proper evaluation of our interests; law marks out the limit within
which they ought to be confined. To analyse out a criterion for the evaluation of
our interests is the function of morality; to settle the principles of the reciprocal
delineation of one’s own and other people’s interests is the function of law”.
Again from this statement, there seems to be a very strong connection between
law and morality.
• All in all, legality and morality are intimately connected. Most legal
rules contain implicit or explicit normative messages; they point
to proper behavior that ostensibly best serves social needs. However, it should be
noted that in the Western state model, law is there essentially to protect what is
regarded by the state to represent citizen’s rights. It provides a safeguard against
exploitation and corruption, protects the weak from the strong and maintains
public order and decency. It is not for the law to legislate or interfere with
personal morality as morality is relegated to the private life of the individual.
 LAW AND MORALITY
Enforcement of Morality by Law: Continuation)
• Definition of Morality- It is the quality of being in accord with standards of
right or good conduct or a system of ideas that fall into those same categories.
We often hear words about religious morality in society. Items that fall into
the morally sound category are qualities like good, goodness, rightness,
virtue, and righteousness. In other words, the term “morality” can be used
either (a) descriptively to refer to a code of conduct put forward by a society
or, other group, such as a religion, or accepted by an individual for her own
behaviour or (b) normatively to refer to a code of conduct that, given
specified conditions, would be put forward by all rational persons.
• Regardless of the definition given above, it should be noted that there are still
some problems posed in addressing the issue or question of morality in
relation to law e.g. some view issues related to morality as a personal matter
and thus law should not be used to enforce morality, the test of what is moral
or immoral is very subjective one, etc.
 LAW AND MORALITY
Enforcement of Morality by Law: (Continuation)
• Looking at the issue of enforcement of morality by law, one may
raise the issue of whether the courts should be allowed to enforce
morality. In other words, should the court declare itself as the reeper
and protector of morals of the nation? First and foremost, before
responding to this question, it is important to note that the problem of
morality and the law emerged in Britain in acute form in the era
following the Second World War. There was an upsurge of concern,
prompted by highly-publicised criminal trials of homosexuality
offenders, and the appearance and sale of literature of a sexually-
explicit nature. It was suggested in some quarters that the restraints
imposed by the law in the name of morality were no longer effective
and that the disintegration of the social fabric was not far off. Public
concern hastened the appointment of a Royal Commission to
investigate patterns of homosexuality offences and prostitution.
 LAW AND MORALITY
Enforcement of Morality by Law: (Continuation)
• In addition to the above, the Report of the Committee on Homosexual Offences
and Prostitution (known as ‘the Wolfenden Report’) appeared in 1957, and
recommended changes in the law (i.e. homosexuality between adults who give
consent and commit this in private, should no longer be treated as a criminal
offence); some of the recommendations became the basis of the Sexual
Offences Act 1967, discriminating certain homosexual practices in specified
circumstances. See also in 1976, the Williams Committee on Obscenity, also
recommended that pornographic material should not be totally banned, but its
displays should be curtailed. Intense debate followed, producing points of view
which tended to polarise around the arguments stated by Hart (1907-1992) and
Lord Devlin (1905-1992).
• Furthermore, the debate between Hart and Devlin whether or not law should
enforce morality was sparked off mainly by the publication of the Wolfenden
Committee Report and the decision in Shaw v DPP. See the brief facts of the case
where Shaw was charged and found guilty of three offences: (a) publishing an
obscene article, (b) living on the earning of the prostitutes who paid for the
advertisement, and (c) conspiring to corrupt public morals by means of the
directory. On appeal to the House of Lords, the question to be decided was whether
the courts processed moral justification. The House of Lords declared itself as the
Reeper and protector of the morals of the nation, and upheld Shaw’s conviction.
 LAW AND MORALITY
Enforcement of Morality by Law: (Continuation)
(a) Lord Devlin’s arguments
• Looking at the arguments forwarded by Lord Devlin, it is important to
point out that Lord Devlin discusses the question: “What is the connection
between crime and sin and to what extent, if at all, should the criminal law
of England concern itself with the enforcement of morals and punish sin or
immorality as such”. In answering this question, Lord Devlin poses three
questions:
i. Has society the right to pass judgment at all on matters of morals? Ought
there, in other words, to be a public morality, or are morals always a
matter for private judgment?
ii. If society has the right to pass judgment, has it also the right to use the
weapon of the law to enforce it?
iii. If so, ought it to use that weapon in all cases or in some; and if only in
some, on what principles should it distinguish?
 LAW AND MORALITY
Enforcement of Morality by Law: (Continuation)
(a) Lord Devlin’s arguments
• As to the first question, Lord Devlin believes that there is always something as
public morality. Morals are not a matter to be judged by private opinion and the
society has a right to judge matters of morals. For example, some people
sincerely believe that homosexuality is neither immoral nor unnatural. Devlin
argues that if society is not prepared to say homosexuality is morally wrong,
there would be no basis for a law protecting youth from ‘corruption’ or
punishing man for living on the ‘immoral’ earnings of a homosexual prostitute.
To Devlin, the structure of every society is made up of both politics & morals.
Take for instance marriage is part of the structure of our society and it is also
the basis of a moral code which condemns fornication and adultery. The
institution of marriage would be gravely threatened if individual judgments
were permitted about the morality of adultery, on these points there must be
public morality.
• Each member of a community has ideas about good and evil; these ideas cannot
be kept private from the society in which he or she lives. If persons attempt to
create a society in which there is no fundamental agreement about good and
evil, they will fail. Society is held together ‘by the invisible bonds of common
thought’. Hence, if the bonds of common thought are too far relaxed, members
of the community will drift apart.
 LAW AND MORALITY

Enforcement of Morality by Law: (Continuation)

(a) Lord Devlin’s arguments
• According to Lord Devlin, the answer to the second question is also
‘Yes’. Society may use the law to preserve morality ‘in the same way
as it uses it to safeguard anything else that is essential to its
existence’. It is not possible to set theoretical limits to the State’s
power to legislate against immorality. Society has the right to use its
laws to protect itself from internal or external dangers, as evidenced
by the law of treason and many more.
• Lord Devlin argued that an established morality is as necessary to the
welfare of society as is good government. If no common morality is
observed, society will disintegrate; indeed, the loosening of moral
bonds is a preclude to such integration. Hence, society is justified in
taking steps to preserve its moral code, and there can be no theoretical
limits to this process.
 LAW AND MORALITY
Enforcement of Morality by Law: (Continuation)
(a) Lord Devlin’s arguments
• As to the third interrogatory, Lord Devlin argued that it is necessary to discuss
how society’s moral judgments ought to be ascertained. Here reference should
be made to the judgment of ‘the right-minded man’ (not necessarily ‘the
reasonable man’); he can be thought of, perhaps, as ‘the man in the jury box’.
Let immorality be considered as what every ‘right-minded man’ considers to be
immoral.
• Lord Devlin argued that certain ‘elastic principles’ must be kept in mind by a
legislature anxious to protect morality and the State. First: there should be
‘toleration of the maximum individual freedom that is consistent with the
integrity of society’. Second: punishment should be reserved for that which lies
beyond the limits of tolerance. These limits will be reached when an activity
creates disgust among ‘right-minded persons’. ‘No society can do without
intolerance, indignation and disgust; they are the forces behind the moral law’.
Further, society cannot be denied the right to eradicate ‘a vice so abominable
that its mere presence is an offence’. (It has to be stressed, however, that the
limits of tolerance will change from one generation to another). Third: the need
to enforce the law must be balanced against respect for privacy. Fourth: the law
should be concerned with minima, not maxima, so the society’s standards
ought to be set above those of the law.
 LAW AND MORALITY
Enforcement of Morality by Law: (Continuation)
(b) Hart’s arguments
• There is no such thing as broad and wide “shared morality” of Devlin. There is
morality no doubt, but amounts only to ‘minimum content of natural law’. Hart
agreed with the proposition that “some shared morality is essential to existence
of any society”, but it cannot be established by evidence. Therefore, the
proposition is a self-evident statement. For example, nowadays, since the
society is pluralistic, there is an amalgamation of tolerated moralities and not
one shared morality. Diverse views exist not only on matters of sex-morality,
but also on issues of ‘capital punishment, abortion, surrogate motherhood,
euthanasia and the like. Thus, to Hart, legislators should pay attention to the
ideas of morality held by the majority. But Hart concedes that the majority
itself may be wrong. For instance, Saudi government imprisoned Europeans for
consuming alcohol.
• Devlin’s concept of morality as a single ‘seamless web’ which will be torn
beyond repair unless communal vetoes on behaviour are enforced by law, is,
according to Hart, an unacceptable viewpoint. Single breaches of morality do
not necessarily affect the integrity of society in its entirety. See the case of R v
Lemon & Gay News 2- where the application of a poem and cartoon about the
crucifixion with homosexual undertones was held to be blasphemous libel.
 LAW AND MORALITY
Enforcement of Morality by Law: (Continuation)
(b) Hart’s arguments
• According to Hart, there is a question of disobeying the law. Thus, it is quite
established, that one cannot preserve dignity and decency, through
enforcement of criminal law on the people. To Hart, it is the inducement
towards obedience which comes from an acceptance of the standards
underlying the law.
• Law cannot enforce morality through coercion, as envisaged by Devlin. It is
not proved that legal punishment is the only motive for conforming with the
idea of morality. According to Hart, members of a society should conform to
its moral standards through discussion, advice and argument, rather than by
coercion. If conformity to moral standards is imposed by sanctions, one has
to pay the high price. It may result in human misery and the deprivation of
freedom.
• Devlin agrees to law prohibiting immoral acts, because they are offensive to
others and amount to public nuisance. Devlin gives the example of bigamy.
Some people think that in a country, where there are religious feelings for
monogamy, laws against bigamy should be treated to protect such feelings
against desecration of the ceremony. Hart suggests that a bigamist should be
punished not for being irreligious or immoral, but for creating nuisance.
 LAW AND MORALITY

Enforcement of Morality by Law: (Continuation)

(b) Hart’s arguments
• According to Hart, Devlin denounces immoral acts which
are done in private. Hart believes that we have a right to
be protected against any offence to our feelings by some
public demonstration of an immoral act. But at the same
time we have no right to be protected from distress which
is caused by knowledge of the fact that certain acts are
done in private.
 LAW AND MORALITY
Enforcement of Morality by Law: (Continuation)
(c) Criticisms of both arguments
• Regardless of their views i.e. Lord Devlin and Hart, both have been
criticised or attacked. For example, looking at Lord Devlin’s view, it has
been argued that law should not enforce morality because of: the moral
feelings may not be spread out widely; if the law enforces morality, it is
possible that it may create more social evils rather than prevent them; the
law has not got the machinery well equipped for the task; if law were to
enforce morality, it would destroy personal freedom, prevent freedom of
choice and change the state into a totalitarian state.
• Still on Lord Devlin’s view, his test of an ordinary reasonable man is not
reasonable. The reasonable man forms his opinion after a complete
discussion of the pros and cons of all relevant facts and even then, one
finds that the opinion is divided. In such cases, Devlin wants the majority
opinion to prevail.
 LAW AND MORALITY
Enforcement of Morality by Law: (Continuation)
(c) Criticisms of both arguments
• Dworkin finds certain flaws with Devlin e.g. His arguments for law
enforcing morality are not valid, because he is mistaken about what is to be
disapproved on moral principle. Dworkin rejected his idea of what counts
as the community’s morality. Also, his view that criminal law should be
drawn from public morality is basically not correct, etc.
• G. Hughes points that Devlin makes use of the judgment of the right-
minded person to decide about the matters which should be banned by law.
He states: “the yardstick is to be the feeling of right-minded people, though
we are not told who are to be considered ‘right-minded’”. (See Devlin’s
stand on the crime of abortion i.e. nowadays, many people do not
understand that abortion is wrong)
• As to Hart, he expands Mill’s ‘harm principle’ on matters of sexual
morality and relies on paternalism to make out a case of prohibiting
homosexual intercourses among the young people, because it is going to
corrupt them. Dias points out that the said “corruption” implies taking on a
moral position before paternalism.
 LAW AND MORALITY
Enforcement of Morality by Law: (Continuation)
(c) Criticisms of both arguments
• Hart arguments are not all convincing about sex abuses. He suggests that
paternalism is permitted in matters of bigamy and polygamy. He believes that
the law should prohibit them because of i.e. it throws the legal obligation of the
parties into confusion, etc. Lord Devlin points out if the law can show
paternalistic interest in such matters, which are mentioned by Hart, then why
should it not also show a paternalistic approach to the morals of the people in
general. Examples are live sex on the theatre stage, exhibition of sadism, wife
swopping and keeping of mistresses. It is contradictory if the state assumes its
responsibility by means of laws for education, health, trade, etc., and at the
same time denies it for morals.
• Dias criticises Hart for accepting the distinction between public and private
spheres of morality, as drawn by Wolfenden Committee Report. The latter is
not the concern of law. He points out that some acts are different and they
depend on whether there is an immoral purpose. For instance, accosting and
soliciting a girl by money would be for prostitution and, hence, the purpose is
immoral. But on the other hand, if these things are for a student charity show,
the purpose is moral. Dias believes that what a person does in private can have
its effects outside also, because the social framework comprises so many moral
institutions.
 LAW AND MORALITY
Enforcement of Morality by Law: (Continuation)
(c) Criticisms of both arguments
• In addition to the above, Dias states that since the state shows concern
for the conduct of its citizens, it may rightly show its concern with
their moral attitudes. He further points out the reason for prohibition
is that social existence depends upon coordination. This in turn
demands prohibition on individual action. To relax legal prohibitions
is the way to social destruction, particularly when there is little
assurance of self-discipline. As he puts it: “The easing of laws and
penalties on anti-social conduct may conceivably result in less
freedom and safety for the law-abiding”.
 LAW AND MORALITY
Conclusion:
• It is evident that both law and morality serve to channel our behaviour. Law
accomplishes this primarily through the threat of sanctions if we disobey legal
rules. Morality too involves incentives: bad acts may result in guilt and
disapprobation, and good acts may result in virtuous feelings and praise.
• The relationship between law and morality is one of the more enduring problem of
Jurisprudence. It has come to be the locus of the dispute between natural law and
legal positivism and has generated a variety of controversies about the scope of
legal enforcement. Like many perennial philosophical issues, moreover, it has
endured because we are pulled in two opposing but equally plausible directions.
• Whether law should enforce morality, it is a mixed up legal, moral and political
question. On this question there is a division of opinion, too. For example,
Devlin’s supporters continue to stress the need for the law to assist in the
suppression of intolerable vice. However, critics remind them of the assertion that
he who tries to determine everything by law will foment crime rather than lessen
it. On the other hand, Hart’s supporters urge that argument on these matters must
continue. But, critics remind them of the need for the law to correspond with the
community’s declared feelings and aspirations.