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To what extent should morals influence the law?

As a very initial point of consideration and a basic response to if morals should be allowed to influence the laws at all, one has to address why laws of any kind exist in the first place. The answer to that is simple: to uphold a functioning and harmonious society. In order to do this then, the only logical conclusion is that they have to pander to what society thinks is right, or more saliently put, society’s morals. If they want people to obey these rules, then at least to some extent, it makes sense to model the rules on what ethics the greatest number want protected. If the example of the Volstead Act of 1920, or the enactment of prohibition in the US, is taken, the flaws of not adhering to this statement are evident. The growing majority did not desire the clean break from alcohol- as the rather loud protest groups would have the government believe- as much as completely repudiate it. Consequently, it was an abject failure. So, it can be mostly agreed upon that morals should have some bearing and influence over the law. The question is, though, how much?

This question begins to take form when the true relationship between law, morality and ethics are considered. Law and morality have striking similarities in that they both make a statement about what is an acceptable code of behaviour but this does not mean that they are always exact the same:

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The law is the law and by disobeying you bring upon yourself legal punishment, whereas morals are very adaptable and voluntary; you will not necessarily be sanctioned, and certainly not formally for a moral breach alone, for not having the same morals as someone else. Except where, of course, the law comes into harmony or conflict with a personal set of beliefs. There are cases though that showcase the fluidity of morality and how peoples’ morals can differ, but also how the law cannot always be influenced by exactly what has been considered moral by society in the past. One such is the case of Jodie and Mary in 2001, who were conjoined twins, where Mary, although with her own heart, brain and lungs, was dependent upon the stronger Jodie to survive. But the dilemma goes like this: without separation, both twins would surely die within a few months, since Mary was unable to survive alone, yet was weakening Jodie by being so reliant. However, if they were separated, it would horribly but certainly result in the death of Mary, but Jodie would have a very high chance of being able to conduct a fairly normal life. The doctors and medical team were in favour of the operation, but the religious parents opposed, saying they would be “quite happy to let God decide what happens to their two young daughters”, instead of being actively knowledgeable that Mary would die if they were procedurally separated. The law and a certain moral meet controversy because morally, knowingly killing someone is always wrong. But, by the way of the law, it was judged by the courts that since the operation would be, in essence, an act of self-defence of Jodie, and an act of defence by the doctors for a legitimate reason that it would be more lawful to undertake the procedure than to not. Therefore, this makes it difficult to say that law may always uphold what morals say one ought to do.

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Furthermore, as new common law sets precedents for the future, it can also play a huge role in working the other way around- where laws influence our morals in turn. Legal change cannot be usually be made without the moral force behind people wanting it to change, but once it has been changed, then that generally becomes the adopted moral standpoint for the next generation after that to take. Parent alive through both, child only alive through one- chances are child who has only known one thing is likely to grow up believing that it is the right attitude, parent can make choice of what to believe- morals influence law changes, but laws might influence what child thinks as the right attitude to begin with. Although not necessarily a law, the abolition of the death penalty in 1965 serves a key example of this sort of trend. The death penalty had been a longstanding part of UK history, but in this period, people began to question the efficacy of the capital punishment system. The case of Derek Bentley highlighted the issue of inconclusive evidence still meriting the penalty; Ruth Ellis called into question the fact that the reasons behind most murders were not given enough consideration; Timothy Evans caused people to re-evaluate the possibility that innocent people were being sent to such final justice. Nevertheless though, despite these widely supported oppositions to the death penalty, opinion polls of adults all throughout the 70s indicated consistent support for hanging. It is only with the next generations to come that we now very much condemn other nations, like the US, that do still employ the death penalty.

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Laws can be immediately introduced or repealed through Acts of Parliament, and as long as it is enshrined will always be a law regardless of whether the majority choose to adhere to it. However, moral changes are constantly occurring but at a far slower rate, over centuries of social and religious development e.g. R v R (1991) that outwardly criminalised martial rape where there had been a convention of exemption before in common law, which was soon transcribed in statute law in 1994. This progress came about quite late on in the century, when this view would already have been a very ethically questionable one to hold; law and morals are not always in alignment, and are not always interchangeable with one another, whether laws have some intention to uphold moral values or not.

Morals can also come about based on circumstance, like for example, the light that had been shed on the abysmal living conditions of the families living in urban areas as a consequence of evacuation in World War II, setting a precedent that something had to be introduced by the government to address this plight. Familial and societal pressures are often the condemnation of being morally poor which arguably can be even more influential against a certain stance because they experience that bearing in daily life, whereas the condemnation of the legal system only comes into play once the act has been committed.

There are issues that surface when the principle of implementing all laws solely based on morals- a key one being that morals are an inherently personal, or on a larger scale, societal notion. Wherever one looks, one is obviously going to encounter differing ethical standpoints because the upbringing of person or the development of the society differs for every single place one would visit. The morals that would be chosen to be the basis of a law that functions in one society could be abhorrent and morally repugnant in the other- a potent example of this being the Gillick case, where Mrs Gillick believed that contraception and advice being readily available to all women- married, unmarried, young and old- should be illegal because it was so amoral. However, this sparked inevitable debate because some agreed with her thinking in that a supportive attitude rather than a condemning one would encourage unmarried/underage sex and pregnancy. Others believed that since this was almost a given to happen regardless, it would be more immoral not to provide any support for these women. So, whilst law and morality might be considered to have need for separation, they are going to end up in contradiction with one another as a certainty at some point, and that sometimes the law does have to listen to the public moral stance. Additionally, though, such an example highlights that if every law was solely based on morals then the law just would not function to the desired effect.

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But, nonetheless, they are inevitably and irrevocably intertwined because they generally both relate to the ease of conscience when abiding by either one. Undoubtedly though, there have been a number of contributors to the question of how far the influence of morals should extend over the law, one of the most poignant being religion.

Religion is indisputably a base point for the foundation of the some of the oldest laws we know, such as the Babylonian laws that perpetuated ‘an eye for an eye’- a fundamental found in both Christianity and Islam. The basis of this ideology that since God created the world and he decided how He wanted the world to look and to function, surely the morals that He has created and taught are the ones that should be enshrined into the laws of that world. Even much of current UK law can be traced back to that of religious origin.

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