Law Should Be Kept Separate From Morality Law Essay

The statement quoted from the Wolfenden Report suggests that there should remain a line between sin and crime and that the law should not interfere in matters of private morality or immorality keeping it apart from public morality. This is a broad view and clearly, there are some areas in which the law should act as a moral guardian and interference is justifiable. I will outline some of these areas and critically analyse accordingly. However, there also areas that I feel should not be ‘the law’s business’ and where perhaps the criminal law’s intervention cannot be justified. I will also look at the apparent blurring of private and public morality. I will also attempt to outline and clarify all these areas, providing the appropriate authorities, academic commentary and other relevant evidence in order to give a balanced view and to be able to draw a succinct informed conclusion.

In order to understand the nexus between law and morality we need to establish the differences. Laws are sets of rules or boundaries established by authorities that should be obeyed and are formally enforced by the Police or the Criminal Prosecution Service. Morals on the other hand are beliefs, values or principles that are set by society or certain aspects of society, determining what is right and what is wrong. Morals do not have to be complied with, they are normally informally enforced through social or domestic pressures. Both laws and morals specify what should or should not be done and mark the boundaries between what is acceptable and unacceptable conduct. Having looked at the nature of laws and morals I will look at the historical debate and attempt to expand on whether or not laws and morals are intrinsically linked.

Historically, there has been much philosophical debate as to whether in fact there is a connection between law and morality. Positivists [2] such as Jeremy Bentham, John Austin and H.L.A. Hart have all argued that there is not necessarily a connection between law and morality; on the other hand natural law [3] , thinkers such as St Thomas Aquinas [4] have postulated that there is a clear link between law and morality. To further complicate matters R Dworkin puts forward his own approach of “interpretivism” [5] , developed in a number of his works over the last thirty years [6] to try and answer the vexed question of law and morality and the nature of law and the relationship to each other.

The links between law and morality can be seen in all areas of law. In Tort, for instance , in cases such as Baker v Hopkins [7] where two employees of the defendant company were overcome by carbon monoxide fumes in a well they were attempting to decontaminate. The plaintiff, a doctor, attempted to rescue them even though he was warned of the fumes. It could be said that he felt morally responsible . Unfortunately, all the three men died.

The defendant company argued that the plaintiff doctor should either not be compensated because the doctor knowingly accepted the risk he was taking or his damages would be reduced for contributory negligence. The Court of Appeal considered that the suggestion was “ungracious” and that it was unseemly and irrational to say that a rescuer freely takes on the risks inherent in a rescue attempt. This would appear to be a seemingly moralistic judgement by their Lordships. Similarly, in property cases such as the High Trees Case [8] where Lord Denning used the equitable principle of promissory estoppel to prevent the recovery of rent or preventing what he saw as a moral wrong. These could all be seen as instances of the courts making judgements on what is morally right and wrong. In fact, in the case of Knuller v DPP [9] concerning a magazine containing advertisements, by homosexuals in order to procure sex, the courts were able to dictate public morality, recognising the offence of ‘conspiracy to corrupt public morals’ established in Shaw’s Case [10] . It is the criminal law that provides us with sufficient evidence to conclude that there is indeed a link between law and morality.

The Wolfenden Report itself, actually concerned the role of the law in matters of sexual morality and determining what conduct should be classed as criminal. Unfortunately, the result was not definitive as two diverging views emerged, firstly, that of Lord Devlin who concluded that the legislature was entitled to

‘ outlaw behaviour that was generally condemned as immoral on the grounds that such conduct may be likened to treason threatening the continued existence of social cohesion [11] ‘ and secondly, the view of Hart that

‘immorality alone was not sufficient: law should not be used for prohibiting harm suffered by a person who is offended simply by knowing about other people’s conduct [12] . ‘

These opposing viewpoints probably accounted for the fact that the part of the Wolfenden Report concerning the decriminalisation of homosexuality was not implemented until the Sexual Offences Act of 1967 (following a motion by Lord Arran in the House of Lords favouring the implementation of the Wolfenden Report and a Sexual Offences Bill sponsored by Leo Abse) which eventually resulted in male homosexuality between consenting adults above the age of twenty-one being decriminalised. Another reason for the delay could be that public opinion and society in general before that time, felt that homosexuality was ‘immoral’ and the law chose to reflect this, condemning homosexuality as a criminal offence. However, with the more liberated 1960’s where there was a seeming relaxation of public and private morality and homosexuality could no longer be seen as immoral, the criminal law acceded to public opinion, leading to the eventual decriminalisation of homosexuality.

However, the Wolfenden approach differed when contemplating the matter of prostitution. The committee readily accepted that prostitution was immoral but indicated that it was a matter of private morality, except when it creates a public nuisance. Therefore, the sale of sex was determined not to be an offence but kerb crawling was. This differing approach resulted in the report forming the basis of the Street Offences Act of 1959, an almost immediate response to the Wolfenden report.

It seems then, that the criminal law should only intervene where the legislature considers there to be a public nuisance or is harmful to society or as John Stuart Mills stated

‘That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.’ [13] 

Unfortunately, there are too many unanswered questions. Can we readily say that if something is immoral it is justifiably unlawful? Can we as a society distinguish between one person’s perception of a lawful and moral activity and those that are immoral or unlawful and should the law really interfere in matters of private morality? If a person consents to something, would that not be a matter of private morality?

The matter of consent and private morality is interesting. Here, criminal law has its vagaries, particularly in non-fatal offences against the person which include actual body harm, grievous bodily harm or wounding. Criminal law will not allow the consent of the victim to be available as a defence, especially if it considers the act to be unlawful. Only if the injury was a result of a ‘lawful activity [14] ‘ will the defence of consent be available. This does not sit easily with the premise of the law not to interfere in matters of private morality. This has been exemplified in the case of Brown [15] . The criminal law deemed homosexual sado masochism as an ‘unlawful activity’ and the court considered that activities in private between consenting homosexuals involving the infliction of actual bodily harm should constitute offences [16] . It seems then that the decision in this case was based on public morality rather than criminality, surely here consent would be a question of private morality and not the law’s business, indeed in Brown, Lord Mustill in dissenting, re-iterated that

‘The issue was not whether the appellants’ conduct was morally right but whether it was properly charged under the 1861 Act. The standards by which questions of private morality fell to be judged were not those of criminal law.’

The case of Brown can be contrasted with R v Wilson [17] where the defendant, with the consent of his wife, branded her buttocks with the initials W and A with a hot knife. The scars led him to being charged with assaulting his wife contrary to section 47 of the Offences Against the Person Act 1861. He was convicted by a Jury. However, the Court of Appeal held that the defendant’s conduct amounted to ‘tattooing’ and that it was not in the public interest to impose a criminal sanction; The initial outcome still shows that the public and their moral judgement still has an influence in criminal law. 

It appears then, that generally, the courts are keen to exercise its ‘morality’ muscle in defence of a perceived public morality. Interfering in what are essentially private morality matters in order to stamp a moral dictum on society in general, however, is not necessarily in the best interest of society as a whole and issues of private morality are thorny issues.

There are of course other areas of criminal law where the judiciary has, albeit slowly, intervened in matters of private morality, for the betterment of society, for example in the area of marital rape. Rape itself was enacted as statutory crime in the Offences Against the Person Act 1861. The Act indicated that ‘it is a felony for a man to rape a woman’ and left the judiciary to establish the elements of the offence and to develop the factors that might allow consent. Its statutory successor, s 1 of the Sexual Offences Act 1956, failed to provide a more substantive definition. It was not until 1976 that s 1(1) of the Sexual Offences (Amendment) Act defined rape as ‘unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it’. However, there still appeared to be a presumption albeit rebuttable, that a married man could have sex with his wife regardless of consent. Morally, this appears to be reprehensible and surely the law should have clarified the position. However, it was not until the case of R v R [18] that the offence of rape was recognised if it was perpetrated by the husband, clearly an example of the law enforcing a specific moral value on society in an appropriate sphere.

A further example of the entanglement of law and morality can be seen in the different approaches by Judges in cases where their own moral values or viewpoints have possibly affected judgements. Often the courts will find themselves dealing with difficult moral decisions involving life and death and often have to decide between individual rights and moral codes. This moralistic approach can be seen in various cases involving euthanasia, considered by the majority of society as both morally and legally wrong. In the case of Dianne Pretty [19] (a case decided by the House of Lords), for example, Mrs Pretty suffered from motor neurone disease, a progressive degenerative illness from which she had no hope of recovery. She only had a short time to live and faced the prospect of a humiliating and distressing death. She was mentally alert and wanted to bring her life to an end. Unfortunately, because of her physical incapacity she would have needed assistance. Her husband wanted to help, but only if he would not be prosecuted under section 2(1) of the Suicide Act 1961 for aiding and abetting her suicide. She sought confirmation through the courts that ultimately refused her appeal. Contrast this with the case of Re B [20] . Ms B was a tetraplegic and suffered complete paralysis from the neck down. She was, however, able to move her head and speak. She gave instructions to the hospital through her solicitors that she wanted the artificial ventilation removed. The hospital refused to stop treatment. Ms B took the hospital to court, was successful and was allowed to die. Here the courts appear to take the stance that voluntary euthanasia or assisted suicide is morally reprehensible but the request to withdraw treatment, resulting in, what is in effect, voluntary suicide or “passive euthanasia” was not – a clear example of the complex moral and legal dilemmas faced by the courts.

Further evidence of this dilemma between law and morality can be seen in the conjoined twin case [21] . Jodie and Mary were conjoined twins and their parents were devout Roman Catholics. Mary was the weaker twin and had she been born on her own she would not have survived. She was in fact, being kept alive by virtue of Jodie’s own circulatory system. Jodie was considered to be capable of surviving a separation procedure, Mary however was not. If there was no separation both would have died. The medical team wanted to separate them knowing Mary would die as a result. The twin’s parents would not sanction the operation. The medical team sought a ruling from the High Court, that an operation to separate the twins would not be murder. Their Lordships applied the defence of ‘necessity’ but restricted the applicability of this defence (for the purposes of public policy) to the unique circumstances of the case.

However, despite LJ Ward’s comment that “this is a court of law, not of morals” when the judgements are examined, it is clear that their Lordships have actually used moral concepts and language in reaching their decision, a true dichotomy.

In conclusion, it is clear from the information provided that there are identifiable links between the law in general and criminal law in particular and morality. However, whether it is justifiable for the legal system in England and Wales to utilise the criminal law in the enforcement of specific moral values in society is debatable. Clearly, as we have seen, there are areas where it is justifiable in rape for example but where it is not so clear is whether it can be justified in those greyer areas such as private morality issues or cases of euthanasia.

I believe that religion (which is the subject of other scholarly and academic debate) , morals and the law are all intrinsically linked and that in order to create a balanced modern society there must be some fluidity. One man’s morality is different from another and the law must try to bridge the gap for the public good. Sometimes the law is rather slow in reacting to public opinion or changes in morality within society, but ultimately, it is the legislature that creates the laws and the job of the courts is only to apply the meaning of that legislation not to query its validity or to enforce moral limitations on parliament, or by implication, enforce those moral limitations on society.