There seems to be quite a strong connection between law and morality. Although people sometimes say “you shouldn’t legalised morality”, they actually don’t really mean this. Why would we outlaw rape and murder if they weren’t wrong? Instead, I suppose they mean that people shouldn’t impose their personal moral views (especially regarding sexuality) upon others. Law is a set of rules and boundaries that are established by authorities which must be obeyed, otherwise, a legal sanction might be given. Law was described by Sir John Salmond as ‘the body of principles recognised and applied by the state in the administration of justice’.
While Morals are normally just beliefs, values and principles that are set by society or part of a society, determining what is right and wrong. However legal rules, compliance with moral rules is voluntary, that are often informally enforced through social or domestic pressure also know and a legal sanction.
There are differences between legal rules and moral rules. Law are created by formal intuition e.g. parliament. Morals evolve as a feeling within society. No formal creation exists.
Laws can be instantly made and instantly cancelled. It can exist one minute and the next it does not. E.g. when act is repealed. Morals form slowly and change slowly as society’s attitudes change. There is usually a slow transitional period e.g. society’s attitude to premarital sex.
A law either exists or it does not. Its existence can be established. Morals are much vaguer in definition. Although society is generally that certain activities are immoral as many issues society’s opinion is divided such as homosexuality.
Breach of law leads to some form of punishment or remedy enforced by the state. Breach of moral leads to some form of social condemnation but the state is not involved.
Society’s attitude to law is irrelevant. A law exists even if the vast majority disobey it. Morals are rules that reflect society’s values and beliefs. Therefore these values and beliefs are vital for the existence of moral.
The area of law that will be discussed is euthanasia. Factors will be taken into account, the extent to which the law does and should enforce moral values.
Euthanasia is the bringing about of a gentle and easy death in the case of incurable and painful disease with the consent of the victim. English law forbids euthanasia. R v Cox.
There are many moral arguments both in support of legalising euthanasia and for maintaining it as illegal. An important case here is R (Pretty) v DPP
Arguments in favour of legalising euthanasia are as follow. It can be seen as merciful, Diane Pretty. It is strongly argued that people have the right to die how and when they want to.
The libertarian argument is, if it promotes everyone’s best interest and violates no one, then it is ok.
This argument may be harsh but it may become necessary for fair distribution of medical resources. Since it will also happen anyway so it therefore better to legalise it and regulate it properly. Death may not be seen as a bad thing for the people involved such as the victim and family members.
However moral arguments against legalising euthanasia should be taken into account as well.
There are religious arguments such as euthanasia is against the word and will of God. It also weakens respect for sanctity and undermines the value of suffering, illustrated by John Paul.
There is the slippery slope argument, which suggests to what extent do we allow people to have euthanasia? Is it for everyone?
Some argue that legalising it would mean that sick or disabled lives are worth less than others.
Euthanasia may not be in patient’s best interests
As euthanasia affects family members. These are third party rights. What if family members do not want their loved ones to die this way. These views should be taken into account as well.
There are three theories that deal with law and morality. The liberal view, Harm to others principle, John Stuart Mill, 1859. He suggests that the only purpose for which power can be rightfully exercised over any member of a civilised community against his will is to prevent harm to others. His own good either physical or moral is not a sufficient warrant. Mill believed that the law should be used not to uphold a particular morality but to prevent harm to citizens. Preventing someone from harming himself is excluded by this harm to others principle.
Example of an existing law, which illustrates this theory, is standard criminal offences such as murder, non-fatal offences and manslaughter.
However, homosexuality between consenting males was decriminalised. Wolfenden Report said law is to preserve decency and protect people, not to interfere in private lives.
The Moralistic view, harm to society principle, Lord Devlin, 1950-1960. Devlin’s theory is that a recognised morality is essential to society’s existence. Individual liberty and freedom should be limited in order to protect the fabric of society. Devlin stated that society may use the law to preserve morality in the same way that it uses law to safeguard anything else that is essential to its existence. The theory is based on an objective morality, a common morality shared by all in society.
Example of an existing law, which illustrates this theory, is the defence of consent in non-fatal offences, R v Brown & Others.
However law is concerned with minimum not maximum standards. Consent is an example of this.
The Paternalistic view, harm to self and others view, Professor Hart, 1960s. He argued that the law should only intervene in the private lives of citizens to prevent harms to others and harm to oneself. He acknowledged the problem of defining harm and stated that it did not include moral harm to oneself.
Example of an existing law, which illustrates this theory, includes laws preventing methods of prostitution.
Paternalistic view focuses on individuals.
A reflection can be made of the theories about the relationship between law and morality in connection with euthanasia. The liberal harm to others view suggests that euthanasia should not be illegal. Moral harm to society view suggests euthanasia should be illegal and paternal view harm to self-view suggests euthanasia should be illegal.
Overall the law does not uphold the moral values of society in connection with euthanasia because euthanasia still remains illegal in UK. The arguments in favour and against resurfaced with the case of Dianne Pretty however the House of Lords still rejected her case.
However society means opinions of all in society. Therefore there are some people who still would like euthanasia to remain illegal, therefore their views should be taken into account as well and can be said the law does uphold the moral values of society in connection with euthanasia.
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