Law and Morality Essay

ethical motive nominate be described as a set of de terminaline super C to night club, which be normative, specifying the correct melody of action in a situation and the limits of what society considers acceptable. rectitude on the other hand according to Osborns Concise rectitude mental lexicon is a rule of conduct imposed and reinforced by the sovereign. A body of principles regognized and utilise by the state in the administration of justice. If justness is to enforce goods, then it is faced with the problem that what one person considers scandalous, other might non, so which viewpoint should the righteousness uphold.This can be seen in the slipperiness of Gillick v West Norfolk and Wisbech Area Health Authority (1986) where Mrs Gillick want a declaration that what she saw as an im virtuous activity (making antifertility advice and treatment available to girls beneath the age of consent) was by nature of its im pietism, il good. This was a chaste strife as some saw this as immoral it encouraged underage sex others felt it was moral as infantile girls would engage in underage sex e very(prenominal)way , only if contraceptives would stop unwanted pregnancies. Which viewpoint would the righteousness of nature support.The House of Lords ruled against Mrs Gillick but express that they were governed by the relevant statutes rather than moral arguments. What then is the relationship amongst constabulary and pietism. What are the differences and similarities The vast differences between endureing theories of the basis of right much fail to nonice the fact that they are found on the practice of comparing an act to certain standards in order to set its healthyity. 1 Different nestlees differ in term of which standards are compared and assessed, though both(prenominal) ultimately assess acts to certain standards to determine their legality or morality.The ii leading theories on the topic are positivism and subjectiveism the compete between the two has fuelled theorists for centuries. Many observers of positivism presume that it completely dismisses any role of morality in the application of the fair play, while naturalism bases the worldly concern and validity of uprightness on moral bases. Although the theories are fundamentally different, it is argued that a plug in between natural jurisprudence and morality is glaringly obvious and unavoidable, no matter which side one chooses to follow or favour.This paper get out seek to argue that claims which deny any assort between faithfulness and morality are weak and f uprightnessed at best, and sustain in a limited manner to simple, straightforward cases. The mere existence of the tight case and of court deliberation go forths a great deal of severalize for not only the existence of the unify between jurisprudence and morality, but withal the necessity of such a link. The natural scientist and commanding theories go forth be explore d in order to assess whether the link between law and morality can survive its critics and strengthen the faith of its followers.Legal favourableness Positivists claim that verifiable morality simply cannot exist because determine rest of different attitudes towards and beliefs about certain values. 2 Attitudes and beliefs differ between individuals and cause us to react to a certain act in a internal manner. Moral perceptions are predominantly emotional, so that such assessments in the neighborhood of the law cause uncertainty and inconsistency. It likewise fails to recognise difficult cases and the misadventure of new cases arising.The apparent main flaw of positivism is that it is unable to rationalise the legal deliberation which takes place in the courtroom, specially the difficult cases which take hold no apparent yes or no answer. The very difficulties posed by version the law and applying it to everyday circumstances are unable to be adequately explained by posit ivism. Indeed, in that respect is a distinction here between surd and dotty confirmings the latter do recognise a radiation pattern of moral basis upon which written laws are perched.Yet both soft and challenging positivists are at pains to explain how hard cases arise, in which there is simply no right or wrong answer, and in which morality may unavoidably take a central role. Morality and the Naturalist Approach Naturalists claim that non-legal considerations such as ideological, moral and semipolitical factors are not only relevant to the posited law, but that law is also based on such factors. The central argument of naturalism is that bearing acquaintance of right and wrong can and does exist, and that this provides the basis for legal decisions as well as for the validity of law.Naturalists such as Aquinas3 claim that natural law provides the basis of validity for posited laws. Rousseau4 believes that positive law cannot override or entrench upon certain existing nat ural rights Aristotle claims that natural justice exists respectively of individual perceptions of or opinions on it. 5 Jeremy Bentham proposed utilitarianism where moral action was the one that produced earnest for many, even it was at the expense of one the superior good for the greatest number.John Stuart Mills refinement of the idea argues that while this is square the individual should not have to follow societys morals and should be apologize to act as they wish provided they do not harm others. The problem arises in defining who are included in others and what is harm. It is clear that naturalist claims to provide a rigid link between law and morality, the latter of the two being a basis upon which the fountain is based. Judges, when they interpret and apply posited law, often tally non-legal considerations in order to apply the law effectively.Naturalism, however, has a major flaw in that it claims the existence of objective morality. There are many case examples wh ich suggest otherwise. 6 One presented with two rather extreme and different concepts of the link (or not) between law and morality. Is it credible that such a links exists? Is there picture for such a link, and how does it serve to affect how the law is administered? Does there really need to be objective knowledge of right and wrong in order for the link to be keep? In order to explore these questions, the ever-elusive difficult case go away be assessed.It will be argued that the link between law and morality is not weakened by the argument that objective knowledge of right and wrong is no(prenominal)xistent. The debate over the relationship between law and morality came to the forefront in the hart/Devlin debate which followed the publication of Wolfenden repute in 1957. The report recommended the legalization of prostitution and homosexuality on the particularly untilitarian basis that the law should not intervene in the private lives of citizens or seek to enforce an par ticular pattern of behaiour further than necessary to encourage others.stag supported the reports approach stating that legal enforcement of moral code is unnecessary. Devlin on the other hand was rigidly opposed to the report. He felt that society had a certain moral standard which law was obliged to uphold as society would fall apart without a common morality. Devlin felt that this morality should be based on the views of the right person and that legislature should adhere to three basic principles (1) Individuals should be allowed as much freedom and privacy as is possible without compromising morality.(2) fan tan and the judiciary should be cautious about changing laws relating to morality and (3) punishment should be used to prevent actions considered abominable to right-minded people. Hart opposed this view questioning what was right-minded and submitted four reasons for not criminalizing what the right-minded person objected to. (1)Punishment of someone does harm to them only and if their actions involved no one else this was not right.(2) Free will is very moral, so interferance with free will would be immoral, (3) Free will allows learning through experimentation and (4) commandment surpressing an individuals sexuality will harm them, as it can affect their emotional state. For the majority of legal issues, judges are not drived to deviate from posited law and precedent in order to decide. The law makes murder wrong, and it has been a long-standing principle that taking the manners of another is chastely abhorrent. Yet what of the hard cases? What if A kills B in self-defence?What if C forced A to kill B else A lose his experience support? What if the application of a law is indeterminate? Can posited law be applied without recourse to moral reasoning? Positivists such as Dworkin and Hart differ in their approach. Dworkin claims that there will always be applicable law,7 while Hart claims that judges can make non-legal considerations under s uch circumstances. 8 Harts theory is applicable to the slight open-textured terms where changes do by non-legal considerations are the result of resemblances which can reasonably be defended as bothlegally relevant and sufficiently close. 9 The judge so utilises morality as a way of choosing between pre-existent definitions, without devising his own definitions. Although Hart is classed as a positivist, he does acknowledge a core of indisputable truth in the doctrines of natural law10 which enables law to be based on something more than simply factual considerations. Harts theory can be interpreted as recognising a form of natural law, although he does stipulate that having recourse to moral values does not always ensure that law and its application will be just.This assessment of Harts approach is plausible, and it serves to create a link between law and morality which avoids the objective criticism of the naturalists. It provides a strong argument for a link between law and m orality which is based on interpretational, social considerations which are evident in the courtroom today. It is by chance necessary to query does the law define what is right and wrong, or do we determine good and bad independently of the law? There are certainly evident customs in society which have strong influences on the way we behave.Such customs are not employ by the law or backed by a support they are simply examples of moral codes within a society which exist independently to the law. Does this mean that law and morality have no fellowship so that the latter can only be found in customs? Does a moral rule backed by the law become a valid law no matter what its core? It is arguable that even majority abhorrence of an act does not make it an immoral act per se, despite the fact that societies need a divided moral outlook in order to exist.11 It could thus be suggested that the law is simply an embodiment of the current moral outlook of society desire morality the law changes according to attitudes and social tolerance. It is such observations that cause the positivist shunning of the link between law and morality to become less convincing. It is even arguable that the obeying of law is based on the recognition of the moral rule that law should be obeyed the threat of sanction is evidently not enough to deter some. It could further be argued that the only reason that order has authority as law is because of the moral structure of a society.As has already been mentioned, the law develops and evolves according to moral outlooks this can be seen where laws prohibiting corresponding sex marriages and abortion have been abolished. If the law were completely disconnected from morality, wherefore has it developed and evolved over time? Why does social pressure to overthrow or change law often achieve its goal? The striking Between Law and Morality Evidence Dworkin claims that courts refer to non-legal (moral) standards when deciding hard cases. As sessing and taking into account moral and political considerations has the potential to create a complex web of law and justify the network as a whole.12 It is strongly arguable that deciding difficult cases without appealing to non-legal considerations is indolent the reason that such cases are hard is because the law does not provide enough direction. However, it is important here to stress that decisions are not free to be made according to personal convictions judges are on the contrary required to carefully weigh social factors in applying and interpreting the law. Dworkins theory in this sense is able to escape the positivist criticism that non-legal convictions are ultimately subjective.Rather, the judge is assigned the difficult informative task which is seen constantly in court. This is evident in cases such as that of Re A (Conjoined Twins)13 in which moral judgements were inevitable and necessary in applying the law to the specific circumstances of the case. Ultimatel y, the judges were faced with the decision of cleanup one twin in order to hand over the other, or to not act and cause the death of both twins. While moral judgements are dangerous nation here, a positivist could not argue that the law as it is could be applied simply and without problem often the law is simply not enough.The law in this case proved of very little aid how is one to decide whether As life has more importance or value than Bs life? While moral considerations could have caused the decision to fall either way, it must(prenominal) be stressed that such situations must risk the dangerous ground created by moral convictions, particularly because the law provides little guidance. Simple cases indeed provide evidence that a link between law and morality is not only non-existent, but also not necessary. 14 Yet the ever-emerging hard cases cry otherwise they not only highlight the constantshortcomings of posited law, they also emphasise the need to acknowledge and utili se the link between law and morality. Although theorists claim that natural law need not override positive law, except when the two conflict, this serves to strengthen the link between law and morality. If there is no link between law and morality, then how can conflict occur in the first place? Why does public round occur when an unjust law breaks the boundaries of social tolerance? Those who claim that there is no link between law and morality utilise the naturalist claim to objective morality as their basis for criticism.Yet the term universal morality need not apply to the universe as a whole. It is plausible, and certainly does not discredit the naturalist theory, that universality or objectivity remains as such despite being applied or interpreted differently between societies. Because the universal moral to push life may allow the sick to be killed in indigenous societies to save sparse resources for the healthy, while requiring that all efforts be made to save every life possible in richer, more able societies.The moral principle the preservation of life still remains existent, it is simply evince and applied differently between societies. 15 Conclusion There are conglomerate theories which discuss how law and morality should relate to each other. The current approach by the legal system seem to be that a common morality , based on traditional values should be maintained by the law as exposed by Devlin. Cases such as Shaw v Director of Public Prosecutions (1961) and Knuller v Director of Public Prosecutions ( 1972) made use of the conspiracy to corrupt moral.This had not been done since the 19th century. This was the low gear of the law to attempt to uphold societys moral values according to Devlins doctrine. This approach continued as the more fresh case of R v Brown (Anthony) 1992 demonstrates. The defendants had had willingly consented to various sado-masochistic practices and none of them reported it to the police. Yet they were prosecuted and their convictions were upheld by both the House of Lords and The European hail of Human rights, based on public policy to defend the morality of society.Whether or not the law should uphold the moral values of society is still debated. Those who criticise the link between law and morality often rely on the argument that no single opinion of rightness can exist,16 yet such criticisms presuppose that such a link requires a single notion of correctness or justice. 17 It does not require such a single notion it merely requires the recognition that legal considerations are often not enough, and that the interpretational practice which takes place is indeed a result of the link between law and morality.To ultimately deny a link between law and morality is to entirely discredit legal precedents, lengthy assessments of judge decisions, and the controversy of many difficult cases. It is also to process away from the glaringly evident evolutions and changes which have occurred in the legal theater to ignore the changing of legal standards according to societal outlooks. Such evidence is difficult to ignore. Upon which other basis does the law stand if it does not excogitate the moral tolerances and standards of the society which is subject to it?Bibliography R Alexy, On the Thesis of a Necessary Connection between Law and Morality Bulygins inspection (2000) 2 RJ 13, 138-147. T Aquinas, Summa Theologiae, in Selected Political Writings, JG Dawson (trans), AP DEntreves (ed) (BB, Oxford 1970). J Bentham, Of Laws in General, HLA Hart (ed) (AP, capital of the United Kingdom 1970a). J Bentham, An Introduction to the Principles of Morals and Legislation, JH Burns, HLA Hart (eds) (AP, capital of the United Kingdom 1970b). E Bulygin, Alexys Thesis of the Necessary Connection between Law and Morality (2002) 2 RJ 13, 133-137.P Devlin, The Enforcement of Morals (OUP, bran-new York 1996). R Dworkin, Laws conglomerate (Belknap Press, Cambridge, Mass. 1986). J Finnis, Nat ural Law and Natural Rights (OUP, rising York 1980). HLA Hart, The Concept of Law (CP, Oxford 1961). 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