Law-Law and Morals

Question 1

What are rules?

Answer 1

Rules exist in many contexts, not just in the case of legal rules or even moral rules. Twinning and Miers define them as ‘a general norm mandating or guiding conduct’. In other words, a rule is something that determines the way in which we behave, whether because we submit ourselves to it voluntarily (moral) or because it is enforceable (law)

Question 2

How are rules often different from laws?

Answer 2

Many rules are neither morally binding, nor do they ultimately have the force of law attached to them

Question 3

Even though rules are not always legally binding, why are they still necessary?

Answer 3

They are still necessary and generally adhered to because of the context in which they operate. Eg in sport, these rules originated to define the sport and evolved over time to ensure each contest conforms to the spirit of that definition. In many instances the rule has developed for the protection of the players

Question 4

Apart from sport, why else do rules usually exist?

Answer 4

Rules might also come about through custom or practice, and involve the disapproval of the community rather than any legal sanction if such a rule is broken

Question 5

How do rules become laws?

Answer 5

Early common law developed out of custom that was commonly accepted. Eventually such rules ‘harden into rights’ and indeed very often are so widely accepted that they become the law. Eg The Bills of Exchange Act 1882 in effect did little more than to put into statutory form the practices which merchants had willingly followed over many centuries

Question 6

What does Hart say about rules?

Answer 6

Hart insists that rules should be distinguished from mere habit or practice. He suggests that the defining characteristic of a rule is its enforceability, and they are generally obeyed for one of three reasons: because they carry with them a sense of moral obligation, because the rule is reasonable and relevant, or because a penalty may be imposed if the rule is broken

Question 7

Explain how the fact that rules carry a sense of moral obligation could be a reason why rules are followed

Answer 7

This can be seen in relation to crime where most offences, particularly those committed against the person, are seen as morally unacceptable and in fact reflect many religious codes. The basic justification in Shaw v DPP was the judges are the ultimate guardians of out morals and have a duty to act against immoral behaviour. Also the very nature of the word tort indicates there is a good deal of morality attached to it, and people should be free from invasions with their person or their property

Question 8

Explain how the fact that a rules are reasonable and relevant could be a reason why rules are followed

Answer 8

Parliament is said to be legislatively supreme, but even parliamentary law may have to be abandoned if it is seen as too irrelevant or too unfair. The classic example of this was the introduction of the ‘Poll Tax’ in the 1980s

Question 9

Explain how the fact that a penalty may be imposed if the rule is broken could be a reason why rules are followed

Answer 9

This explains why people obey rules that they disagree with, such as when compulsory seat-belt wearing was introduced

Question 10

What is the basic nature of morals?

Answer 10

The moral values of communities lay down a framework for how people should behave. Concepts of morality differ from culture to culture, although nearly all outlaw extreme behaviour such as murder

Question 11

What is morality often linked with?

Answer 11

Morality is generally to do with beliefs, so may be affected by religion. We all have a moral code of some kind which defines what we think is and is not acceptable. Morality can differ from culture to culture and from individual to individual, although some behaviour is universally unacceptable

Question 12

How can morality affect the law?

Answer 12

Inevitably morality has an impact on law, particularly the criminal law. Very often it concerns behaviour of a sexual nature and leads to controversy

Question 13

Where does morality often come from?

Answer 13

Often morality finds its roots in religion. The Bible provides a moral code for Christian communities both in the very basic and strict rules of the Ten Commandments, and in more advanced socially aware teachings of Christ. The Quar’an provides a very extensive moral code for Muslims

Question 14

How is morality evident within the law of a country?

Answer 14

The law of a country will generally reflect the moral values accepted by the majority of the people, but the law is unlikely to be exactly the same as the common religious moral code. A good example is adultery- this is against moral code for Christians and Muslims but it is not considered a crime in Christian countries. In England it is merely evidence of an irretrievable breakdown of marriage sufficient to permit one party to the marriage a divorce. However, in some Muslim countries, though not all, it is against the criminal law and attaches criminal penalties

Question 15

How has the law been developing in England and Wales, with regards to law and morals?

Answer 15

There has been a move away from religious beliefs and the way the law has developed reflects this. Abortion was first legalised in 1967, yet it would be fair to say that many people still believe it is morally wrong

Question 16

What does the case of Gillick v West Norfolk and Wisbeck AHA demonstrate?

Answer 16

It demonstrates there are individuals who forcefully reject the idea of giving contraceptive advice and support to underage girls, despite the evidence of the scale of the need demonstrated in the figures of teenage pregnancies

Question 17

What is another example of where law does not reflect moral views of many people?

Answer 17

Euthanasia. While English law clings to the idea that euthanasia is unacceptable, there is a clear call for its legislation in cases such as R (on the application of Pretty) v DPP, and Re B

Question 18

What happened in R (on the application of Pretty) v DPP?

Answer 18

Mrs Pretty suffered with motor neurone disease. As a result she was becoming more and more incapable of movement. She knew she would eventually suffocate to death and wanted her husband to be able assist her to take her own life when she felt her life had become intolerable. She applied to the courts for a judicial declaration that, if her husband assisted her to commit suicide, that he would not be prosecuted. The House of Lords refused he declaration on the basis that any assistance of the husband would be a criminal act

Question 19

what happened in the case of Re B?

Answer 19

B was paralysed, unable to breathe independently, and on life support machine. She was mentally fully aware of her situation and asked for the life support machine to be switched off. Doctors refused to do this so she sought declaration from the courts that se had the right to decide whether or not the machine should be switched off. The courts held she was mentally competent so she did have this right, even though she knew she would die when the machine switched off

Question 20

When was the criminal responsibility of other assisting suicide further considered?

Answer 20

In R (on the application of Purdy) v DPP. The DPP is obliged by section 2(1) of the Prosecution of Offences Act 1985 to issue a code for Crown prosecutors giving guidance on general principles to be used when deciding whether or not to prosecute for aiding and abetting suicide. However this code didn’t cover all situations and Mrs Purdy asked the DPP to issue guidance on this point. When they refused, she applied for judicial review to make the DPP set out guidance as to when a prosecution for aiding and abetting suicide might be brought

Question 21

What happened as a result of R (on the application of Purdy) v DPP?

Answer 21

The DPP then issued a fuller code on the points which are considered when making the decision of whether to prosecute or not

Question 22

When was the new code from the DPP, that was issued after R (on the application of Purdy) v DPP, challenged again?

Answer 22

It was challenged again in the joint cases of R (on the application of Nicklinson and Lamb) v Ministry of Justice, and R (on the application of M) v DPP, in which the three applicants sought a judicial declaration in respect of the code. M argued the DPP’s policy provided sufficient clarity for friends/family helping out of compassion and where there were no particular grounds for concern about the motives of the helper, however the policy was not clear on situations where the helper had no emotional ties to the person committing suicide such as health care professionals.

Question 23

What was the response to the argument put forward in R (on the application of M) v DPP?

Answer 23

The court of appeal accepted this argument and held that it was not enough for the policy to merely list the factors that the DPP will take into account. It should also give some indication of the weight the DPP accords to the fact that the helper was acting in his or her capacity as a healthcare professional, so the code may well be amended

Question 24

How do doctors view euthanasia?

Answer 24

Doctors have even shown a moral acceptance of th need for euthanasia in instances of terminally ill patients suffering dreadful pain and indignity as in R v Cox and R v Arthur

Question 25

What happened as a result of Airedale NHS Trust v Bland?

Answer 25

A more limited and passive form of euthanasia has been accepted as legal with the ruling in this case, where it was ruled that medical staff could withdraw life support systems from a patient, who could breathe unaided, but was in a persistent vegetative state. This ruling meant they could withdraw the feeding tubes of the patient, despite the fact that this would inevitably cause death. Again, many groups believe this is immoral as it denies the sanctity of human life

Question 26

What is one of the key problems with morality?

Answer 26

While many moral views coincide, there are also many that differ wildly. Durkheim suggested that it is almost impossible to find a single set of moral values that would be acceptable to all the members of a modern society. The views of different societies and even within a society can vary significantly on difficult ethical issues such as euthanasia, prostitution, drugs, and even subjects as diverse as fox hunting and body piercing cause great controversy

Question 27

Are there any morals that apply to everyone?

Answer 27

There do appear to be certain core morals which are generally accepted, and these are usually associated with life and death issues, however, even then there is also disagreement. While most people see any form of killing as wrong, there are vastly opposing views on whether abortion is taking of a human life or just a woman exercising rights over her own body

Question 28

What are the UK laws on abortion?

Answer 28

In England, laws on abortion act as a defence to a medical practitioner carrying out the operation where certain conditions are satisfied; i.e. that the pregnancy is more damaging to the woman or members of her family than termination would be, or that there is a foetal abnormality justifying termination

Question 29

What are the laws in the USA on abortion?

Answer 29

Following the case of Roe v Wade, abortion is a constitutional right of all women, declared in the supreme court

Question 30

What is the diversity of moral views in areas where there are lesser considerations?

Answer 30

Where lesser considerations such as the concept of dishonesty are concerned, there are as many interpretations as there are individuals. This can clearly be seen in the lack of a positive definition of dishonesty in s2 Theft Act 1968, and in the criticisms, such as those of Professor Griew, of the test of dishonesty produced in Ghosh

Question 31

What are examples of morals changing?

Answer 31

Morals clearly change and develop. Views on homosexuality have altered dramatically since the trial of Oscar Wilde, and now the argument is more over whether or not gay couples should be able to legally parent children, and whether or not their sexual activities are acceptable or legal

Question 32

What are the differences between law and morality?

Answer 32

Morality develops over a long period of time, while it is possible for law to be introduced instantly. Morality cannot be deliberately changed unlike law. Morality inevitably depends on voluntary codes of conduct and often carry no official sanction (just sense of shame/guilt) whereas law is enforceable with punishments. Breaches of moral rules are not usually subject to any formal adjudication, while breaches of law will be ruled on by a formal legal system usually in the courts

Question 33

What are law and morals both said to be?

Answer 33

They are both said to be normative. Thus means they both dictate the way in which people are expected to behave. Moral viewpoints can clearly have an enormous influence on the making of laws, and some people would argue that the criminal law represents a common moral position

Question 34

What are the effects of the moral standards of communities?

Answer 34

The moral standards of a community are recognised as having a significant influence on the development of law, but in complex societies, morality and law are never likely to be coextensive. Major breaches of a moral code, such as murder and robbery, will also be against the law, but in other matters, there may not be any meaningful consensus

Question 35

What is an example of how the law appears to be based on moral positions, but aren’t accepted by everyone?

Answer 35

The legislation of abortion under the Abortion Act 1967. The Act served a vital need in ensuring the safety of women so they should have abortions in proper clinical conditions. At the time of the Act (started as David Steel’s private members bill) there was much publicity regarding horrific injuries/death caused by back-street abortions. Still, groups such as LIFE and the Association of Lawyers for the Defence of the Unborn Child fiercely contest the morality of abortion. In contrast, many in the women’s movement see the law should be changed and extended so it reflects a women’s right to choose what to do with her own body

Question 36

Why is there much debate about abortions?

Answer 36

Arguments can occur even amongst those with scientific knowledge as to the point at which life actually begins. In this way, much of the argument surrounding the amendments to abortion law in the Human Fertilisation and Embryology Act 1990 were over the timescale during the pregnancy during which abortion would be permitted

Question 37

What does the Catholic Church argue about abortion?

Answer 37

The Catholic church of course would argue that abortion is wrongful, since life in its view begins at conception

Question 38

How can moral contradictions appear in law?

Answer 38

Moral contradictions can also appear in the law so that while abortion can be carried out legitimately, the courts have reused actions for ‘wrongful life’ in Mckay v Essex AHA because it is contrary to the principle of the sanctity of life. Similarly, doctors have been prosecuted for openly practicing euthanasia as in R v Cox, but withdrawing feeding so that a patient in a permanent vegetative state would die was accepted in Airedale NHS Trust v Bland. Other contradictions involve sexual morality

Question 39

What is natural law and positivism?

Answer 39

A major debate is whether law and morality should reflect each other exactly. The idea of natural law is that the two should coincide and that there is a divine source for the law. Taken to the extreme, the supporters of natural law would say that legal rules which did not conform with moral laws should be ignored. In other words, if legal rules of a country are in contrast to the moral laws, the legal rules should be disobeyed. Positivists, on the other hand hold that if legal rules have been enacted by the correct procedures, then those legal rules must be obeyed, even if they are not liked and are in conflict with morality

Question 40

How did the Hart Devlin debate start?

Answer 40

In 1957 the Wolfenden Committee was asked to examine and consider a range of moral issues. The committee recommended the legalisation of both prostitution and homosexuality, and as a result gave rise to much debate on the issues

Question 41

What were Hart’s views?

Answer 41

Professor Hart approved the findings of the Report and argued strongly that there should be a clear separation of law and morality. He felt morality was a matter of purely private judgement and that the state had no right to intervene in private morality, and that it was also wrong to punish people who may have done no harm to others. On the other hand, he felt a legal system should be based on logical ideas producing ‘correct’ decisions from rules. Nevertheless, he did not concede that society could not exist without a form of morality which mirrors and supplements the legal rules

Question 42

What were Devlin’s rules?

Answer 42

Lord Devlin felt that society required the observance of certain moral principles and, even if public opinion was changing, the law should still support those moral principles. He also felt that the judges have a residual right to protect and preserve some sort of common morality. An example of judges exercising this right was in Shaw v DPP

Question 43

What happened in the case of Shaw v DPP?

Answer 43

Defendant published a ‘ladies directory’. This was a list of prostitutes with photos of them and information on them. Defendant was convicted of conspiring to corrupt public morals. In this case, the House of Lords effectively invented the crime of conspiracy to corrupt public morality to cover the situation

Question 44

What was a later example of how English law continues to take the line of judges having a right to protect and preserve common morality?

Answer 44

R v Brown, where a group of men took part in sado-masochistic acts against each other. This was done in private and all the men were adult and gave consent. Some injuries were caused but the court accepted that these were transient and minor. Despite all these facts, the House of Lords rules their behaviour was a breach of the criminal law of assault and they could not claim the defence of consent to excuse their acts. In this case, the House of Lords imposed a certain standard of what was considered acceptable behaviour, however the judges were not unanimous as two out of five judges disagreed

Question 45

How can contradictions in the law be seen with the case of R v Brown?

Answer 45

Contradiction is evident when R v Brown is compared with R v Wilson. Here the Court of Appeal accepted that a man branding his wife with his initial could not lead to criminal conviction because it was consensual on the wife’s part and was an entirely private matter in which the law should not intervene

Question 46

In what area of criminal law are morals very prominent issues?

Answer 46

In the whole area of sexual offences, and there have been many major recent developments including current statutory development. An example is the use of strict liability in some of the offences in the Sexual Offences Act 2003, such as in R v G

Question 47

What happened in the case of R v G?

Answer 47

G was a 15 year old boy who slept with a 12 year old girl. He was charged under s5 of the Sexual Offences Act 2003 with rape of a child under 13. The girl was 12 but G believed on reasonable grounds she was 15. Se told him so on an earlier occasion. G was held to be guilty as the offence is one of strict liability and may be committed irrespective of: consent, reasonable belief in consent, a reasonable belief as to age

Question 48

Why did G appeal, in R v G?

Answer 48

He appealed on the basis that making s5 strict liability was a breach of his human rights, particularly Article 8, the right to respect for his private life. In the House of Lords, Baroness Hale pointed that the physical and moral integrity of the complainant, vulnerable by reason of her age, was worthy of respect. She thought the state would have been open to criticism if it didn’t provide the complainant with adequate protection. This shows the court upholding moral values set by the Act

Question 49

What is an example of how the courts have become involved in controversy surrounding sexual behaviour?

Answer 49

R v Brown where the moral justification given for their decision was it was not in the public interest to allow such behaviour, for the possible corrupting effect on other people. However in R v Wilson, their moral justification for their decision was it was not the role of the court to interfere in the private pastimes of husbands and wives in a domestic context

Question 50

How do the homicide offences and non-fatal offences also have roots in morals?

Answer 50

They have their roots in the moral view that it is wrong to kill or physically harm another person with no justification. Even within these offences, the use of partial defences in voluntary manslaughter can be seen as having a base in morality, hence the notion that it would be wrong to convict a person of murder whose reasoning was impaired by an abnormality of the mind, as with diminished responsibility under s2 Homicide Act 1957

Question 51

How do the other general defences reflect morality in criminal law?

Answer 51

In insanity for instance, the defendant has a defence because he does not know what he is doing, or if so, he does not know that it was wrong. The rules on voluntary intoxication demonstrate society’s natural disgust for acts done while under the influence of alcohol or drugs. Even in the case of involuntary intoxication, the case of R v Kingston was in many ays a moral judgement

Question 52

Although contract law does not overly concern morals, what is an example of an occasion where morality is an issue?

Answer 52

In the area of vitiation, certain contracts can be declared void in essence because of their association with immorality, eg Pearce v Brooks where a cab owner failed to enforce a contract with a prostitute who used his cabs for trade because the courts were not prepared to allow contracts for immoral purposes-similar to Parkinson v The College of Ambulance

Question 53

What happened in Parkinson v The College of Ambulance?

Answer 53

The contract was void because its whole purpose was corruption in public life. The courts have been similarly unprepared to enforce contract to commit a tort or a crime as in Dann v Curzon. Neither will the courts allow parties to take advantage of contracts that set out to defraud, such as one aimed at defrauding the revenue in Napier v National Business Agency

Question 54

How does the defence of duress demonstrate morality in contract law?

Answer 54

Judges in contract law cases are not prepared to allow violence to be used to secure a contract, hence the development of a law on duress

Question 55

How does the case of Derry v Peek demonstrate morality in contract law?

Answer 55

The area of fraudulent misrepresentation developed in Derry v Peek, while based on the tort of deceit, still reflects the view in contract law that it would be improper to allow a contract to be secured by fraud

Question 56

How can the law of tort become involved in moral difficulties?

Answer 56

This is shown in cases such as R (Pretty) v DPP and Re B which n one hand are concerned with criminal liability of those assisting in euthanasia, but on the other hand may also involve the duty of doctors towards their patients. The starting place for doctors is a moral obligation to treat patients, found in the Hippocratic oath, and is backed up with legal duties found in a variety of judgements eg on the duty to examine (Barnett v Chelsea and Kensington Hospital Management Committee), or duties in relation to treatment (Wilsher v Essex Health Authority) etc

Question 57

How are doctors duties also evidence of basic moral contradictions?

Answer 57

All intrusive medical treatment in the absence of consent is a battery in law. This is best illustrated in the judgement of Cardozo J in the American case Schloendorff v Society of New York Hospital. It has also been restated in English law in the cases of Re T and Re C (both on adult refusal of medical treatment). Nevertheless, doctors have been able to justify withdrawing feeding and hydration leading to death in the case of a patient in persistent vegetative state and therefore incapacitated in Airedale NHS Trust v Bland, and justified sterilisation of mentally incapacitated patient in Ref, and able to give treatment that is unwanted in Re S. Clearly these all involve very complex and troubling moral issues