The Nature of Law Law and morality Judicial Precedent and Legal personnel

Objectives Explain that laws and morals are normative. Identify the changes in law and morality. Discuss the differences between law and morality. Assess whether law and morality should be separate.

What is law? What are morals? Law is a set of rules laid down by Parliament for the State. Every citizen is bound by the law and breaking the law allows the State to punish. Morals are beliefs and values shared by a society or section of society – they tell us what is right and wrong. Breach of morals results in disapproval or feelings of guilt. They are often derived from religion.

Points for discussion: What issues do debates about morality often centre around? Do we as a society share a common set of values/morals? Should laws be concerned with morals? Can you think of any cases where the decision of the court was based on morals? Can you think of any examples where moral attitudes have changed over time? Does the law influence our moral attitudes, or does society’s changing morals influence the law?

Should law and morality be separate? Key cases: Gillick v West Norfolk and Wisbech Health Authority (1985) Re A (Children) (Conjoined Twins: Surgical Separation) (2000) “not a court of morals but a court of law and our decisions have to be taken from a solid base of legal principle”

The law sometimes lags behind morals: A husband broke into the house where his estranged wife was staying with her mother and forced her to have non consensual sex with him. R v R (1991) Is this rape? Crown Court: no rape The Sexual Offences Act implies that it is impossible for a man to rape his wife and the “contract” of marriage means that it is assumed that the woman is the “property”.

R v R (1991) House of Lords: Rape “It may be taken that the proposition was generally regarded as an accurate statement of the common law of England. The common law is, however, capable of evolving in the light of changing social, economic and cultural developments. Hale's proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail. Apart from property matters and the availability of matrimonial remedies, one of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Hale's proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable”

Theories Natural Law Theory This theory argues that law should reflect morality. There is a higher law to which we can turn for our moral code. Bill of Rights – encompasses natural law principles Professor Fuller, The Morality of Law (1969) Lord Devlin, The Enforcement of Morals (1959) Cases: Shaw v DPP (1961) Knuller v DPP (1972) R v Gibson (1990) R v Brown (1992)

Theories Utilitarian Theory This theory argues that individuals should be free to choose their own conduct, as long as no harm is caused to another. They should not have morality forced upon them by society. John Stuart Mill (1859) Professor Hart, Law, Liberty and Morality (1962) If someone’s actions do not cause direct harm, it does not mean no harm has been caused at all – for example, pornography. Who is “another”? – for example, abortion, embryo research. Cases: R v HFEA ex p. Blood (1997) R (on the application of Quintaville) v HFEA (2005)

Theories Hart v Devlin The Wolfenden Report (1957) Recommended legalising homosexuality and prostitution Lord Devlin: there is a common morality necessary to keep society together. the law has a duty to uphold the common morality. immorality is judged by the standard of the right-minded person. Professor Hart: the use of the law to enforce morals was unnecessary, undesirable and morally unacceptable. the standard of the right-minded person is a tenuous one. individuals should have free choice.

The Warnock Committee (1984) Recommended the setting up of an independent statutory body to regulate scientific advances regarding conception and pregnancy. Human Fertilisation and Embryology Act 1990 which created the Human Fertilisation and Embryology Authority – www.hfea.gov.uk Controversial cases: R v HFEA ex parte Blood (1997) R (on the application of Quintavalle) v HFEA (2005) Evans v UK (2007)

Recent Developments Human Fertilisation and Embryology Act 2008 replaces provisions in the 1990 Act: Statutory storage period for embryos extended from five to ten years. Sex-selection of an embryo for non-medical reasons is prohibited but is allowed to screen for gender specific diseases. A ‘saviour sibling’ provision permits the testing of embryos to establish whether tissue from that embryo could treat an existing sibling. Removal of the reference to ‘the need for a father’ enabling same sex couples to be regarded as parents with parental responsibility. Introduction of the ‘right to know’ for children born as a result of fertility treatment to apply for details of their biological origins. This Act aimed to reflect changes in moral and social values and shows the law and morality to find common ground.