MORALITY & THE LAW

CONTENT Definition of MORALITY MORALITY and the LAW Public & private morality “Victimless crimes” Libertarian & Anti-libertarian approach

1. DEFINITION OF MORALITY

MORALITY is normally associated with:- A standard of behaviour which is acceptable by the society Good conduct and ethics (manner, character, proper behaviour) Act that promotes good and avoids evil

If an act is good = it is a moral act If an act is bad/evil = it is an immoral act

“Morality is the ‘rules as decided’ by whichever authority, human or otherwise, is currently in power.” - Cedrick S. Zabala

Society Self MORALITY Religion Law Culture

2. MORALITY & THE LAW

MORALITY prescribes how people should behave; the LAW is concerned with how they should not.

Relationship between law and morality What is moral may not necessarily be legal; and what is legal may not necessarily be moral.

NATURAL LAW Divine law Eternal law POSITIVE LAW Statutes Precedent An act is legal if it is moral Based on nature and reason Based on custom, religion and holy scriptures Morality and the law are inter-related >>> Positive Law <<< An act can become legal even if it is immoral Based on legislation and case laws Morality and the law are separated NATURAL LAW Divine law Eternal law POSITIVE LAW Statutes Precedent

AMORAL vs. IMMORAL Amoral means an act that has nothing to do with morality. Example: walking past an elderly person is amoral. Immoral means an act that is in contradiction to morality. Example: punching an elderly person in the stomach is immoral.

Wearing student matric card Buckling up the seat-belt Open burning Usually amoral acts are governed by man-made laws since they do not involve morality at all. Paying taxes Wearing student matric card Buckling up the seat-belt Open burning

Sometimes there are certain immoral acts that are deemed as lawful. Drinking alcohol Lying Gambling Smoking

There are also certain immoral acts that are deemed as unlawful and can be punished under the law. Murder Robbery Abduction Breach of trust

It cannot be denied that there are circumstances in which law cannot be separated from morality. However, since the publication of the UK ‘Wolfenden Report’ (Report Of The Committee On Homosexual Offenses And Prostitution) in 1957, morality has been divided into two realms – private morality and public morality.

3. PUBLIC & PRIVATE MORALITY

PRIVATE MORALITY vs. PUBLIC MORALITY PRIVATE MORALITY An individual's private conduct which is not a governmental or societal concern, and should be free from intrusion. PUBLIC MORALITY An individual’s conduct that affects other individuals or the larger society, and which should be governed by externally imposed laws.

The Wolfenden Report 1957 The Report advocated repeal of the statutes prohibiting consensual homosexual relations in private, because "it is not the duty of the law to concern itself with immorality as such." In effect, the report suggests that what might be wrong in public might be right in private, and may be indulged in without the fear of sanction.

Reaction towards the Wolfenden Report: LIBERTARIANS ANTI-LIBERTARIANS Libertarians argue that while social-cohesiveness must be protected, moral pluralism does not constitute a threat and the law has no business in interfering in matters of private morality. Anti-libertarians argue that the society can override the matters of private judgment where they threaten its survival, and homosexuality is such a threat.

4. VICTIMLESS CRIMES

A victimless crime is a term used to refer to actions that have been ruled illegal but do not directly violate or threaten the rights of any other individual. It often involves consensual acts in which two or more persons agree to commit a criminal offence in which no other person is involved.

Some examples of “victimless crime”: Pornography Vandalism Homosexuality Prostitution Public nudity

ANTI-LIBERTARIAN APPROACH

LIBERTARIAN John Stuart Mill: The individual ought to be free to do as he wishes unless he harms others. The harm principle holds that each individual has the right to act as he wants, so long as these actions do not harm others. If the action only directly affects the person undertaking the action, then society has no right to intervene, even if it feels the actor is harming himself. John Stuart Mill

ANTI-LIBERTARIAN Lord Patrick Devlin: The public has the right to judge personal or private morality. A society's existence depends on the maintenance of shared political and moral values. Violation of the shared morality loosens one of the bonds that hold a society together, and thereby threatens it with disintegration. Lord Patrick Devlin

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