Law and Morality Essay

deterrent exampleity set up be described as a find of determine reciprocal to hostel, which argon normative, specifying the power course of subroutineion in a situation and the limits of what gild considers accept subject. rectitude on the other hand according to Osborns Concise rightfulness Dictionary is a rule of conduct imposed and fortify by the s all overeign. A body of principles regognized and halt by the state in the disposition of justice. If integrity is to enforce clean-livings, then it is attack with the problem that what unmatchable person considers im honorable, much or less other might non, so which facetpoint should the honor proceed.This hindquarters be seen in the exercise of Gillick v West Norfolk and Wisbech Area wellness Authority (1986) w here(predicate) Mrs Gillick sought a resolution that what she saw as an im clean-living use (making contraceptive advice and treatment available to girls d proteststairs the age of consent) was by nature of its im religion, il licit. This was a object lesson skirmish as some saw this as degenerate it support on a lower floorage sex others felt it was example as young girls would engage in underage sex some(prenominal)way , besides contraceptives would prevent unwanted pregnancies. Which viewpoint would the fairness support.The House of Lords ruled against Mrs Gillick but verbalise that they were governed by the pertinent statutes kind of than lesson melodic phrases. What then is the relationship amid constabulary and holiness. What atomic number 18 the take issueences and similarities The vast differences among subsisting theories of the basis of faithfulness genuinely much plump to nonice the fact that they ar found on the practice of comparing an act to certain standards in effect to regularise its virtue. 1 Different approaches differ in impairment of which standards are compared and assessed, though some(prenominal) in the long ru n assess acts to certain standards to de borderine their effectuality or faith.The deuce leading theories on the topic are advantageousness and naive realism the argumentation betwixt the two has fuelled theorists for centuries. some(prenominal) observers of positivism presume that it completely dismisses any role of holiness in the exertion of the police force, while internalism bases the existence and asperity of uprightness on moral bases. Although the theories are fundamentally contrastive, it is argued that a merge surrounded by uprightness and moral philosophy is glaringly taken for granted(predicate) and unavoidable, no matter which side angiotensin-converting enzyme chooses to follow or favour.This paper depart seek to argue that consumes which deny any attach amid uprightness and moral philosophy are weak and f uprightnessed at best, and apply in a moderate manner to simple, straightforward graphemes. The mere existence of the weighed down case and of court figuring runs a great deal of certify for non unless the existence of the liaison amidst rightfulness and godliness, but as well the necessity of much(prenominal)(prenominal) a link. The essentialist and positivist theories will be lookd in order to assess whether the link amongst impartiality and ethical motive can carry by means of its critics and strengthen the faith of its followers.Legal advantageousness Positivists need that prey morality hardly can non exist because values consist of different attitudes towards and beliefs roughly certain values. 2 Attitudes and beliefs differ amidst privates and cause us to react to a certain act in a subjective manner. Moral perceptions are preponderantly emotional, so that much(prenominal) assessments in the part of the law cause uncertainty and inconsistency. It in equal manner fails to recognise effortful cases and the possibility of new(a) cases arising.The apparent main flaw of positiv ism is that it is unable to explain the reasoned computation which takes place in the courtroom, particularly the severe cases which energize no apparent yes or no answer. The very(prenominal) troublesomeies posed by interpreting the law and applying it to everyday sight are unable to be adequately explained by positivism. Indeed, in that location is a specialization here between hard and crackers positivists the latter do recognise a form of moral basis upon which scripted laws are perched. thus far both cottony and hard positivists are at attention to explain how hard cases arise, in which there is simply no decline or unseasonable answer, and in which morality may unavoidably take a exchange role. Morality and the Naturalist Approach Naturalists claim that non-legal considerations much(prenominal) as ideological, moral and governmental factors are not only relevant to the posited law, but that law is in any case account on such(prenominal) factors. The central argument of naturalism is that objective fellowship of right and wrong can and does exist, and that this provides the basis for legal purposes as well as for the severeness of law.Naturalists such as Aquinas3 claim that natural law provides the basis of logicality for posited laws. Rousseau4 believes that controlling law cannot override or entrench upon certain existing natural rights Aristotle claims that natural justice exists independently of individual perceptions of or discernments on it. 5 Jeremy Bentham proposed utilitarianism where moral action was the one(a) that produced good for many, even it was at the get down of one the sterling(prenominal) good for the greatest number.John Stuart Mills tad of the idea argues that while this is true the individual should not have to follow societys morals and should be big to act as they wish provided they do not psychic trauma others. The problem arises in defining who are included in others and what is harm. It is clear that naturalist claims to provide a square link between law and morality, the latter of the two beingness a basis upon which the former is found. Judges, when they interpret and apply posited law, frequently make non-legal considerations in order to apply the law effectively.Naturalism, however, has a study flaw in that it claims the existence of objective morality. There are many case examples which suggest otherwise. 6 One presented with two rather extreme and different concepts of the link (or not) between law and morality. Is it plausible that such a links exists? Is there attest for such a link, and how does it serve to affect how the law is administered? Does there really pack to be objective knowledge of right and wrong in order for the link to be hold? In order to explore these questions, the ever-elusive difficult case will be assessed.It will be argued that the link between law and morality is not lessened by the argument that objective knowledge of right and wr ong is nonexistent. The debate over the relationship between law and morality came to the forefront in the hart/Devlin debate which followed the publication of Wolfenden Report in 1957. The newspaper 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 particular purpose of behaiour further than necessary to protect others.stag supported the reports approach stating that legal enforcement of moral code is unnecessary. Devlin on the other hand was strongly contrasted to the report. He felt that society had a certain moral standard which law was obliged to keep on as society would fall apart without a common morality. Devlin felt that this morality should be establish on the views of the correct person and that legislative assembly should adhere to three basic principles (1) Individuals should be allowed as much costlessdom and loneliness as is possible without compromising morality.(2) fantan 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) legislation surpressing an individuals sexuality will harm them, as it can affect their emotional state. For the majority of legal issues, ventures are not required to deviate from posited law and antecedent in order to settle down. The law makes strike wrong, and it has been a long-standing principle that taking the action of another is morally abhorrent. s carcely what of the hard cases? What if A pop outs B in self-protection?What if C forced A to kill B else A lose his own tone? What if the diligence of a law is indeterminate? Can posited law be applied without recourse to moral ratiocination? Positivists such as Dworkin and Hart differ in their approach. Dworkin claims that there will incessantly be applicable law,7 while Hart claims that judges can make non-legal considerations under such circumstances. 8 Harts conjecture is applicable to the less 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 thus gives morality as a way of choosing between pre-existent definitions, without invent his own definitions. Although Hart is classed as a positivist, he does acknowledge a outcome of indisputable truth in the doctrines of natural law10 which enables law to be based on something more than simply genuine considerations. Harts possible action can be interpreted as recognising a form of natural law, although he does qualify 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 morality which is based on interpretational, tender considerations which are manifest in the courtroom today. It is perhaps necessary to interrogation does the law define what is right and wrong, or do we determine good and gravid independently of the law? There are certainly evident customs in society which have strong influences on the way we behave.Such customs are not implemented by the law or backed by a sanction they are simply examples of moral codes within a society which exist independently to the law. Does this mean tha t law and morality have no connection 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 contented? It is arguable that even majority loathing of an act does not make it an immoral act per se, despite the fact that societies need a shared moral lookout man in order to exist.11 It could thus be suggested that the law is simply an embodiment of the authentic moral outlook of society like morality the law changes according to attitudes and accessible adjustment. It is such observations that cause the positivist dodge of the link between law and morality to become less convincing. It is even arguable that the obeying of law is based on the scholarship 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 legislation has endorsement as law is because of the moral mental synthesis of a society.As has alr eady been mentioned, the law develops and evolves according to moral outlooks this can be seen where laws prohibiting same sex marriages and abortion have been abolished. If the law were completely disconnected from morality, wherefore has it developed and evolved over time? wherefore does social pressure to repeal or change law often achieve its goal? The Link Between impartiality and Morality Evidence Dworkin claims that courts refer to non-legal (moral) standards when decision making hard cases. Assessing and taking into account moral and political considerations has the potential to create a complex web of law and rationalize the network as a in all.12 It is strongly arguable that deciding difficult cases without appealing to non-legal considerations is futile 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 individualized convictions jud ges are on the inappropriate required to carefully weigh social factors in applying and interpreting the law. Dworkins theory in this sense is able to bilk the positivist criticism that non-legal convictions are lastly 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 required and necessary in applying the law to the proper(postnominal) circumstances of the case. Ultimately, the judges were faced with the decision of killing one twin in order to proceed the other, or to not act and cause the death of both twins. While moral judgements are grievous ground 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 keep has more importance or value than Bs life? While mor al considerations could have caused the decision to fall either way, it must 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 use 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 lead in the first place? Why does public outrage 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 stay as such despite being applied or interpreted other than between societies. Because the universal moral to stay fresh life may allow the chuck to be killed in primitive 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 pipe down remains existent, it is simply verbalized and applied differently between societies. 15 oddment There are various theories which handle how law and morality should relate to to each one 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 receptive by Devlin. Cases such as Shaw v film director of Public Prosecutions (1961) and Knuller v Director of Public Prosecutions ( 1972) made use of the faction to corrupt moral.This had not been done since the nineteenth century. This was the beginning of the law to attempt to uphold societys moral values according to Devlins doctrine. This approach proceed as the more recent 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 Court 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 justness can exist,16 yet such criticisms presuppose that such a link requires a single notion of correctn ess 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, prolonged assessments of judge decisions, and the controversy of many difficult cases. It is also to turn away from the glaringly evident evolutions and changes which have occurred in the legal sphere 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 reflect the moral tolerances and standards of the society which is subject to it?Bibliography R Alexy, On the Thesis of a Necessary continuative between equity and Morality Bulygins Critique (2000) 2 RJ 13, 138-147. T Aquinas, Summa Theologiae, in Selected policy-making W ritings, JG Dawson (trans), AP DEntreves (ed) (BB, Oxford 1970). J Bentham, Of polices in General, HLA Hart (ed) (AP, London 1970a). J Bentham, An inlet to the Principles of Morals and Legislation, JH Burns, HLA Hart (eds) (AP, London 1970b). E Bulygin, Alexys Thesis of the Necessary linkup between Law and Morality (2002) 2 RJ 13, 133-137.P Devlin, The Enforcement of Morals (OUP, new York 1996). R Dworkin, Laws pudding stone (Belknap Press, Cambridge, Mass. 1986). J Finnis, Natural Law and Natural Rights (OUP, New York 1980). HLA Hart, The Concept of Law (CP, Oxford 1961). HLA Hart, The Concept of Law (2nd edn, OCP, Oxford 1994). 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