Should Law reflect morality? (very short answer for 40 mark essay)

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Law is defined in many ways, however the 2 main definitions can be described as natural law and legal positivism. Natural law is the view that laws are valid when they are in line with a certain higher authority over man, this can be God (according to Aquinas) or even a shared morality amongst society (Lon fuller). Whereas legal positivism is the view that a law is only valid if it is made by the right practice for the state creating the law (e.g. laws passed through parliament) it does not matter if we even like these laws, just as long as they are made using the right process (Austin).

Morality on the other hand is determined by the will of humans rather than the law itself, it is a set of standards we have set ourselves to decide what is morally right or wrong. Roman speaker Cicero claimed that morality is similar to law, but laws and customs (morality) must both be obeyed.

In law we see many instances of the law reflecting morality, for instance, we have basic, fundamental laws such as murder which prohibit the act of murder, however this also falls in line with our moral understanding that murder is wrong. On the other hand, we have certain moral judements that are not reflected within UK law. For instance, in the UK we do not have a 'good samaritans' law as seen in countries like France, meaning in a situation where we saw a man drowning and we was stood next to a life ring, we would not be legally obligated to throw him the ring if we did not put him in that situation of drowning in the first place. However, if this happened to us in real life, we would say it is truly immoral to simply ignore the drowning man and not attempt to help, however, the UK does not reflect this within its laws. 

Although we can see there is cases of both the law reflecting morality and the law not reflecting certain moral judgements, we still need to ask whether it is required of the law to reflect morality.

This question has been a key debate for many years, however the most popular instance of this debate can be seen between Hart and Devlin. Devlin believed that society is itself constituted by morality, meaning society has a right to protect itself against immoral conduct, meaning that Devlin believed that the law should fully reflect morality. However he did recognise limits to this, stating that the law should only reflect morality where the reasonable man would see a potential immoral act with 'intolerance, indignation and disgust'.

On the other hand, Hart believed that law should not reflect morality, it should only do so in cases where the act could cause a general public nuisance. This therefore meant Hart disagreed with Devlin by stating that law should not interfere with private or immoral conduct, unless it leads to the problem stated before of a general public nuisance. 

This debate mainly started from a report in 1957 called the Wolfenden Report which recommended that homosexual behaviour between consenting adults in private should no longer be a criminal offence. This report led to further advancements in the law, leading to homosexuality between consenting adults to be legalised up until the point where homosexual age of consent matched heterosexual age of consent of 16 in 2000 under the Sexual Offences (Amendment) Act 2000.

Devlin may have disagreed with the wolfenden report, particularly when considering the reasonable man, meaning we must consider a the average reasonable person in 1957. Many would argue in 1957 that the majority of the population would still be against homosexuality, meaning the reasonable man of 1957 would treat homosexuality with 'intolerance, indignation and disgust', meaning that law should reflect morality thus leading to the conclusion that the wolfenden report suggestions are wrong and that the law should keep homosexuality illegal in order to reflect morality. However, Hart would claim that if the legalisation of homosexuality would not generate a public nuisance then there would be no need for the law to still criminalize homosexuality. As this law was concerning consent adults in private, this would surely not create a public nuisance, the private sexual lives of others has no business with those the adults in the sexual relationship choose not to share with, meaning there would be no general public nuisance created, therefore meaning the law should not reflect morality in this case as there is no general public nuisance created. This therefore meant that Hart would have agreed with this Wolfenden report and its suggestions.

We can see that there are many examples of the law reflecting morality however there are many other laws/lack of laws that do/don't reflect moral opinions. However, there is a clear debate for both sides as to whether or not the law actually needs to reflect morality. I believe, particularly in such a pluralistic society full of different races, cultures and ideas, the law should not reflect morality as there is so many different opinions on what is the morally right or wrong thing to do it would be wrong to make laws based on a certain set of group morals. In conclusion, I do not believe that the law should not reflect morality.

Connor S. A Level Law tutor, A Level Philosophy tutor, A Level Busine...

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