Legal skills and debates in Scotland
Legal skills and debates in Scotland

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Legal skills and debates in Scotland

3.3 The relationship between law and morals

Major breaches of a moral code are also likely to be against the law; criminal law provides the obvious example of where morality and law often merge.

The influence of morality in a very general sense is also implicit in a wide range of different laws. For instance, in the commercial world, laws criminalising bribery and the imposition of legal duties on company directors embody what would commonly be considered the ‘right’ or moral way to conduct business. However, law is influenced by a wide range of political, social, economic and cultural factors, and the moral climate of society is only one of these factors. In practice, many laws have a bureaucratic, administrative and technical function. They operate as an essential part of a complex modern society and have little or no connection with morality.

Moral values are not static, they evolve over time and laws may change as a consequence. For instance, rape within marriage was criminalised in Scotland in 1989, reflecting the change in social and moral attitudes to the role and status of women. It may be that law pre-empts the change of moral values; the decriminalisation of homosexuality, under the Sexual Offences Act 1967, is an often cited example of how law influenced a change in this way.

The issue of whether law should be involved in enforcing a moral code in matters that concern the personal lives of people, such as their sexuality, has long been a controversial issue, as was demonstrated in the Wolfenden Report.

Box 1 The Wolfenden Report

In the 1950s a commission was established by the government under the chairmanship of Sir John Wolfenden to investigate the issue of whether the laws that criminalised homosexuality and prostitution should be changed. Its findings were published in the Wolfenden Report in 1957. It recommended that homosexuality and prostitution should be legalised, with some restrictions. It argued that some areas of behaviour should be left to individual morality, rather than legal regulation.

Paragraph 14 of the report stated:

It is not, in our view, the function of law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary … It follows that we do not believe it to be a function of the law to attempt to cover all the fields of sexual behaviour. Certain forms of sexual behaviour are regarded by many as sinful, morally wrong, or objectionable for reasons of conscience, or of religious, or cultural tradition; and such actions may be reprobated on these grounds. But the criminal law does not cover all such actions at the present time; for instance, adultery and fornication are not offences for which a person can be punished by the criminal law. Nor indeed is prostitution as such.

(Wolfenden, 1957)

This approach provoked a reaction from Lord Devlin, a leading judge of the time. He envisaged law and morality as being fundamentally interconnected. He argued that a common morality, with basic agreement on good and evil, was the cement of society without which it would begin to disintegrate. Devlin argued that law had a right, in fact a duty, to uphold that common morality.

Hart, a leading academic, disagreed arguing that using law to enforce moral values was unnecessary, as society was capable of containing different moral standards without disintegrating. It was also undesirable as it would freeze morality at a particular point and morally unacceptable as it infringes the liberty of the individual.

Hart set out some reasons why moral censure should not necessarily lead to legal censure:

  • it may punish behaviour that may not have proved harmful to another person
  • the exercise of free choice by individuals is a moral value with which it is wrong to interfere.

The Hart–Devlin debate continues today. For instance, it arises in the debate over the legalisation of assisted suicide. The ‘Right to Die’ campaign challenges the law which criminalises those who help the terminally ill to die. Campaigners argue that people with life-threatening illnesses or severely disabling conditions should be able to choose to die and that those who help them to do so should not face criminal sanctions. In many of these cases people are physically incapacitated and so cannot take their own lives. However, others believe that it is morally wrong in any circumstances to help someone to die and campaign against the right to die.

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