Law and Morality

Introduction:

• Like law, morality plays an important part in the shaping and regulation of societies.
There is also a certain amount of overlap between law and morality as often law gives
expression to the accepted standards of morality within the society, even if it does not
directly legislate for it.

• In other words, there seems to be quite a strong connection between law and morality.
Although people sometimes say “you shouldn’t legislate morality”, they presumably
don’t mean this- why would we outlaw rape and murder if they weren’t wrong?

• The issue or question of law and morality could be tackled from different angles. For
example, natural lawyers claim that there are certain universal, objective and
immutable principles of right and wrong that are part of the fabric of the Universe.
These principles can be discovered by man.

• Man needs to reflect upon his nature and the universe about him. He has to reason
why things are as they are. And by the process of syllogistic deduction, he can distil
principles of morality and justice. Man-made law must conform to these principles if
it is to be valid. This is the necessary casual connection between law and morality.

• Hart as a positivist does not subscribe to such doctrinaire. According to him, there is
no higher law from which law obtains its validity and authority. To the positivist, law
is valid irrespective of its substantive morality. Validity is determined by a formal test.
For Hart law is valid if it satisfies the criteria stipulated in the rule of recognition.
Hence, there is no necessary connection between law and morality.

• In addition to the above, some have thought that law must, by its nature have certain
distinctive moral aims. Thus, if it lacks those aims it is not law. For example, it must
be just, serve common good or aim to justify coercion or aim to be in some other way
morally binding or morally successful.

• All in all, law and morality, though interrelated, are perceived by most Western
lawyers to be two distinct and separate spheres. In contrast, the impact of Islamic law
on society is pervasive and far-reaching, for Shari’ah is an all-inclusive system
combining both the legal and moral realms.

The Nature of Law and Morality:

• Philosophical thought about the nature of law and morality has fallen into two broad
camps. Legal positivism is of the view that law is best understood as a sociological
phenomenon, a particular way of structuring social life. For the positivists, it is
essential to the nature of law that it can be identified without appeal to controversial
 moral arguments. Law is thus identified with positive law, that is law that has been
promulgated or enacted in appropriate ways.

• Different positivists have different views for the necessary and sufficient conditions
for appropriate enactment. Some make the command of the Sovereign essential (John
Austin); others the existence of structure for changing laws (Hart) and many more.
Whatever their other differences, positivists share the view that it is essential to a
legal system that what the law is can be established without considering what the law
morally ought to be. (See the position taken by Hart regarding Nazi laws)

• In addition to the above, opposed to positivists are defenders of natural law,

according to whom a system of official power only qualifies as a legal system if it
meets certain moral demands. Natural lawyers differ on what those demands might
be, but share an insistence that the difference between the rule of law and other ways
of organising power can only be drawn in terms of fundamental moral conceptions at
the heart of a legal system. Hence, it would be right to state that the essential
discussion surrounding natural law is as to whether morality is a necessary part of
legal validity.

• In other words, is it right to say that at the heart of natural law it asserts that rules,
which contravene certain ‘natural’ criteria lose their pedigree to be called ‘law’ even
if they satisfy all the formal characteristics of law making. (This seems to concur with
Lon Fuller’s view of ‘inner morality of law’).

• Still in addressing the nature of law and morality, perhaps it is important to point out
that law, unlike morality, law is made by someone. So it may, unlike morality, have
aims, which are the aims of its makers (either individual or collectively). Not all law
has aims, however, because not all law-making is intentional. Customary law is made
by convergent actions that are performed without the intention of making law, and so
without any further intention to achieve anything by making law, i.e. without any aim.
(See Hart’s distinction between moral obligation and legal obligation in the context
of his moral principle of Nulla Poena Sine Lege- the Grudge Informer Cases)

• Regardless of what is reiterated above, Some have thought that law must, by its
nature, have certain distinctive moral aims when it has aims at all. If it lacks those
aims it is not law. It must aim to be just, or aim to serve the common good, or aim to
justify coercion, or aim to be in some other way morally binding or morally
successful.

• In addressing the nature of law and morality, it is equally important to make

cross-reference to the Shar’iah position.

• For example, law and morality though interrelated, are perceived by most Western
lawyers to be two distinct and separate spheres. In contrast, the impact of Islamic law
on society is pervasive and far-reaching, for Shari’ah is an all-inclusive system
 combining both the legal and moral realms. Shari’ah has guided the development and
performance of not only legal institutions, but also those of other institutions and
agencies of society, including governmental, business, and educational institutions.
This aspect of Islamic law can partially explain to us the success the law had in
transforming heterogeneous and incongruent societies into one relatively
homogeneous political community during the early centuries of Islam.

• Having looked at the nature of law and morality from three different perspectives, it
would suffice that to the positivists for example, in identifying the claims of law, the
place to begin is with the language that legal officials use. In setting out or explaining
legal norms, officials cannot but use the language of obligations, rights, permissions,
powers, liabilities and so on. What they thereby claim is that the law imposes
obligations, creates rights, grants permissions, confers powers, gives rise to liabilities,
and so on. One might think that the claim here need not be a moral claim. Officials
need be claiming only that there are legal obligations, legal rights, legal permissions,
and so forth, not moral ones. (See Hart’s view on the position of officials while
accepting a set of a given rule)

Similarities and Differences Between Law and Morality:

(a) Similarities/Connections

• There is no doubt that to a certain extent law and morality do possess some
similarities from Western jurisprudential thought. The similarities are:

i. Defending basic values

• The existence of laws that serve to defend basic values--such as laws against murder,
rape, malicious defamation of character, fraud, bribery, etc. --prove that the two can
work together or share common similarity. See Hart’s view on the importance of
morality in law creation i.e. paternal morality (saving people from harm).

ii. Sense of obligation

• The sense of obligation is present in both law and morality. For example, laws govern
conduct at least partly through fear of punishment. On the other hand, morality, when
it is internalized, when it has become habit-like or second nature, governs conduct
without compulsion. The virtuous person does the appropriate thing because it is the
fine or noble thing to do. (See Hart’s view on social rules which carries legal
obligation as opposed to moral obligation)

iii. Influence of morality on law

• Morality can influence the law in the sense that it can provide the reason for making
whole groups of immoral actions illegal. For example, incest, prostitution (in certain
jurisdictions), homosexuality (in certain jurisdictions), etc. See also the decision of the
 court in the case of Shaw v DPP- where the court coined the phrase ‘offences which
are prejudicial to the public welfare’.

iv. Law can be a public expression of morality

• Law can be a public expression of morality which codifies in a public way the basic
principles of conduct which a society accepts. In that way, it can guide the educators
of the next generation by giving them a clear outline of the values society wants
taught to its children. (See the provisions of the Federal Constitution of Malaysia on
equality (Art 6, Art 8(1), Art 11(1), etc). See also laws against sexual discrimination,
sexual harassment and many more.

v. Understanding the way both law and morality operates

• We understand law and morality in terms of belief-desire psychological theory. That

theory claims that any human action can be explained solely in terms of the beliefs
and desires of the agent. For example, If I turn on a heater, this may be because I
desire to be warm, and I believe that turning a heater will achieve this end. To apply
this to our current topic, consider how society can influence the actions of its
members. According to belief-desire psychology, there are two broad options:
change someone’s beliefs, or change their desires. Morality, by this understanding,
corresponds to the latter option. That is, morality is a system of socialization whereby
society instills in its members’ the desire to act in certain ways. The other method of
influence is to alter people’s belief about how best to fulfill their desires. This is
where law comes in. Its role (according to this interpretation) is to serve as a deterrent
for those who, for whatever reason, fail to be bound by morality.

vi. Real nature of law or its substance

• To study the real nature of law is to recognise and analyse those unformulated rules of
conduct accepted within a society; these ‘vital rules’ are often of greater significance
than the ‘lifeless provisions of codes. Law can be comprehended only as a function of
society. See also Hart’s ‘minimum content of natural law’. Hart viewed law as a social
phenomenon/social control and its study involves the recognition of the
‘characteristics of human condition’ i.e., human vulnerability, approximate equality;
limited altruism (human altruism is limited); limited resource; and limited
understanding and strength of will. These five ‘characteristics of human condition’
Hart refers to it as the ‘Minimum Content of Natural Law’. However, he made it very
clear that it is devoid of any moral philosophy.

(b) Differences
 • Jurists (especially positivists) have argued that law and morality are two different
things on the following grounds:

i. Law is concerned mainly with society e.g., prescribes rules as to how an individual
should behave with another, and the state. See Hart’s key to the science of
jurisprudence i.e., the operation of primary and secondary rules. Primary rules are
duty imposing and secondary rules are power conferring. See also John Austin’s
definition of the term ‘law’ as a command of the Sovereign. On the other hand,
morality is concerned mainly with an individual (i.e. not to lie to your parents, respect
for the elderly, etc). Morality prescribes rules for making his character and conduct
excellent.

ii. Law is backed by legal sanctions. They are immediate, determinate and predictable.
See Austin’s argument that law is a command of the Sovereign backed by sanction.
See also Hart’s view stating that rules which take the form of law- even if a
rudimentary of primitive kind of law. A rule will come into this category if the
pressure for conformity includes physical sanctions against a person who breaks the
rule-even if the sanctions are applied, not by officials, but by the community at large.
On the other hand, morality is backed by social pressure and public opinion. They are
remote, indeterminate and not predictable. Hart argued that in its nature morality has
significant differences with law. For example, rules of morality are immune from
deliberate change. There is the voluntary character of moral codes. There are unique
forms of moral pressure surrounding moral wrongs. To these, Bodenheimer adds
other differences. For moral offences, there is uncertainty regarding sanctions.

iii. The rules or laws can be created, amended or destroyed overnight. See Hart’s
secondary rules comprising of rule of recognition, rule of change and rule of
adjudication. See also how Adolf Hitler’s regime created notorious law during the
Nazi period to exterminate the Jews. See also Apartheid laws in South Africa
during the reign of the Whites. On the other hand, ordinarily, the rules (morality) do
not change at all. If they do change, they take a long period of time.

iv. As to law, legal duties are imposed on the individual without his consent. For
example, road users have a legal duty to drive at only 110 km/hr on a highway
without their consent; to stop when the traffic lights turn red, etc. In some cases, law
will not allow him (an individual) “to contract out” of its demands, e.g., labour
legislation. On the other hand, morality can be accepted or rejected altogether. For
example, one may decide to respect or not to respect his or her parents.

v. Law derives its existence from a normal man-made standard. This could be supported
by virtue of the existence of unjust laws (such as those enforcing slavery) proves that
morality and law are not identical and do not coincide. See also laws gay marriages in
certain jurisdictions today is considered legal, gender reassignment or sex change
considered legal as well (see the UK Gender Recognition Act 2004), law on
 euthanasia, etc. On the other hand, morals derive their existence from forces which
are supernatural. See the view of St Thomas Aquinas arguing on the basis of certain
universal, objective and immutable principles of right and wrong that are part of the
fabric of the universe. These principles can be discovered by man. Man needs to
reflect upon his nature and the universe about him. He has to reason why things are as
they are. And by the process of syllogistic deduction, he can distil principles of
morality and justice. Man-made law must conform to these principles if it is to be
valid.

vi. As to law, an individual is to submit to the will of the organised society. In other
words, law shows concern for the conduct of the individual, for which it lays down
standards. See for example security laws, criminal law, etc. On the other hand, under
morality or morals, individual is subjected to the dictates of his conscience i.e. Its
morally wrong to lie to your parents, morally wrong to mistreat them, etc. Thus,
morals are end in themselves. They are good in themselves and therefore they should
be followed.

vii. Law should have “minimum effectiveness”, that is, obeyed by some people. See
Kelsen’s theory of effectiveness. See also Hart’s approach in distinguishing between
a legal obligation and moral obligation. See also Austin’s view on effectiveness of the
law. On the other hand, as to morals, an individual can believe in particular type of
morality.

viii. Law depends on what is necessary for the time and place. It comprises actual
standards adopted in the life of the community. It varies according to the philosophy
of the society. For example, in Malaysia we have the ISA and its existence could be
justified. On the other hand, morals depend on those rules which are good in
themselves. They consist of absolute ideals, which are generally of universal value.
There sphere does not change.

ix. The primary concern of law is with external actions of individuals and secondary
concern is with motives and generality. As to morals, primary concern is with inner
conscience and motive and secondary concern is with the external actions of
individuals.

Relationships/Connections Between Law and Morality:

• As stated in the introduction above, there seems to be quite a strong connection

between law and morality irrespective of the different views shared on the subject by
different jurists. For example, law and morality, though interrelated, are perceived by
most Western lawyers to be two distinct and separate spheres. See the views of the
positivists.
• In order to understand the relationship/connection between law and morality, it is of
paramount importance to pay attention to some of the views addressing the subject
matter at hand. The following are some of the views or opinions:

(a) Natural law

• Natural lawyers i.e., classical natural lawyers argued that law and morality cannot be
separated. They argued that the substance of law must be moral. For example,
Socrates- He states that like physical law there is natural law. He put forth an absolute
philosophy. He pleaded that principles of morality should not change. According to
him, in order that law may become the embodiment of correct reasoning, one had to
use reason and apply “insight” into the nature of conduct. In other words, man
possesses insight and this insight reveals to him the goodness and badness of things
and makes him know the absolute and eternal law.

• To Cicero, natural principles like justice and morality are discoverable by reason and
above all human laws cannot override these principles i.e., they are supreme. Thus,
natural law could ‘strike down’ positive laws which contravene natural law (like a
Legislature making lawful theft or forgery of wills or adultery lawful). See also the
view of St Thomas Aquinas that law which fails to conform to natural law or divine
law is not law at all. He referred to it as ‘corruption’ of law. Hence, unjust laws do not
oblige in conscience. This is normally expressed in the maximum ‘lex iniusta non est
lex’ (unjust law is not law).

• All in all, the issue is whether morality is a necessary part of legal validity. In other
words, is it right to say that at the heart of natural law it asserts that rules, which
contravene certain ‘natural’ criteria lose their pedigree to be called ‘law’ even if they
satisfy all the formal characteristics of law making? (This seems to concur with Lon
Fuller’s view of ‘inner morality of law’).

(b) Legal positivism

• Legal positivism’ is used to signify a doctrine which rejects any metaphysical

speculation concerning law. In other words, it is considered as a view of law which
takes into account the positive law only i.e., law as it ‘is’ and not law as its ‘ought’ to
be. Hence, to the positivists, law is valid irrespective of its substantive morality. For
example, Hart in Chapters 8 and 9 of ‘The Concept of Law’ expounds his view of
morality. He claims that there is no necessary connection between law and morality.
Validity is determined by a formal test (i.e., rule of recognition). As to the connection
between law and morality, Hart insisted that the connection was not a necessary one.
The connection was casual and not causal. Law can exist without morality. Law can
be moral, immoral or amoral. Legality is one thing; morality is another. (See the Nazi
laws from Hart’s perspective). However, this does not mean that he has no view on
morality. In ‘Liberty, Law and Morality’ Hart discusses the role of morality in law
 creation. Hart subscribes to paternal morality (to save people from harm) and does
not approve conventional morality as propounded by judges like Lord Devlin.

• Furthermore, another positivist by the name of Hans Kelsen’s came up with his ‘pure
theory of law’. This is to rid law of any kind of ‘impure’ elements. He said that a
theory of law must be free from ethics, politics, sociology, history, etc. It must in other
words, be ‘pure’. However, he did not deny their value: all he said was that a theory
of law must be clear of them. Kelsen argued that a theory of law must deal with law
as laid down and not as it ought to be. See also the view of John Austin who viewed
law as a command of the Sovereign.

• All in all, the ‘separation thesis’ on which legal positivism rests is on the belief or
assumptions that the questions of what ‘is’ law is separate from what law ‘ought’ to
be. This is to say, proper role of legal philosophy is not to speculate about morality
but to come to understanding about the nature of legal systems. Hence, the term ‘legal
positivism’ can best be summarised by this statement: “The existence of law is one
thing; its merits and demerits another, whether it be or be not comfortable to an
assumed standard is a different inquiry”.

• Sociologists

• Sociological enquiries made the impression that law, morality, religion, philosophy,
art, aesthetics and politics take their sustenance from society and, therefore, it is not
only relevant but imperative to pay attention to the nature of society to understand the
nature of law, morality, etc. According to the social school of jurisprudence, if law
depends to some or great extent on social facts, it is imperative to explore the extent
to which law’s dependence rests on them and how far in its turn can influence them.
For example, Bentham’s doctrine of utilitarianism rejects concepts of morality/justice
based on reason; to Bentham, it should be based on consequences. In other words,
morality depends on consequences. (See his view on legal issues such as abortion,
euthanasia, capital punishment, etc)

• All in all, the connection between law and morality - or the lack thereof - is the
problem of legal philosophy. The basic positions are simple. Positivists claim that
there is no necessary connection between law and morality (the separation thesis), and
non-positivists claim that there is (the connection thesis). For positivists, the
definition of law only includes two elements: “social efficacy” and “proper
promulgation.” Non-positivists add morally “substantive correctness” or “justice” as a
necessary third element.

Law, Freedom, Morality and Social Change:

• What do they all share in common in a given society? Take for instance the
relationship between law and freedom. Law may give you the freedom to do certain
 things but with limitations or restrictions (See Art 10(1)(a),(b) and (c) of the Federal
Constitution on freedom of speech, assembly and association and as well as Art
10(2)(a),(b) and (c) on the restrictions/limitation). See also Art 11(1) on freedom
of religion and many more.

• Still on the issue of law and freedom, somehow by putting together the words law and
freedom, there is inside of us a sense of contradiction and frustration. Take the issue
of seat belts. The law says you shall wear a seat belt when you are driving down the
road in your car. There are people who still feel that the law for seat belts takes away
their freedom. It’s my freedom to decide for myself if I want to wear a seat belt or not.
There are many issues of the law- bike helmets, speed on the road, parking in spots
reserved for handicapped that many feels take away their freedom.

• In addition to the issue of law and freedom, perhaps it is important to note that in
today’s context we are faced with more pressing challenges while addressing the
relationship between law and freedom. For example, how would you respond to
anti-gay legislation? See also pro and anti-abortion camps and many more.

• Turning now to law and morality, this relationship has been discussed in depth
ranging from the nature of law and morality, similarities and differences,
connection/relationship between law and morality in the earlier part of the discussion.
Perhaps what is important here is to make cross-reference to Lord Devlin’s
arguments. Devlin discusses the question: “What is the connection between crime and
sin and to what extent, if at all, should the criminal law of England concern itself with
the enforcement of morals and punish sin or immorality as such?” In answering this
question, Devlin poses other questions. “Has society the right to pass judgements at
all on matters of morals? Ought there ... To be a public morality, or are morals always
a matter of private judgement?” Devlin believes that there is always something as a
public morality. Morals are not a matter to be judged by private opinion and the
society has a right to judge matters of morals. Hence, the society may use the law to
preserve morality in the same way as it uses it to safeguard anything else that is
essential for its existence.

Enforcement of Morality by Law:

• The links between law and morality constitute the subject-matter of an age-old
jurisprudential debate. Ought the law to concern itself with morality? Ought the law to
reflect shifts in public opinion concerning moral questions. What significance ought
to be attached to Lord Simonds’ assertion in Shaw v DPP (1962) that the courts retain
a residual power, where no statute has intervened to supersede the common law, to
superintended those offences which are prejudicial to the public welfare? Ought the
law to intervene in order to prevent an individual’s chosen course of action which
moves him along ‘the primrose way to the everlasting bonfire?’ (See the decision of
 the House of Lords in R v Brown (1993)- where the court held that consent is no
defence to sado-masochistic assault).
• JS Mill argued, that the only purpose for which power can be rightly exercised over
any member of a civilised community, against his will, is to prevent harm to others.
This statement could be understood as addressing the relationship or connection
between law and morality although commentaries have questioned the precise
meaning of ‘harm’- did it refer exclusively to physical injury? Ought it to include
mental, emotional injury? What is meant by ‘others’? Does it include, for example, a
foetus? How should Mill’s doctrine be applied to, say, adultery, or the use of
cannabis?

• Furthermore, Korkunov, in his Theory of Law (1900), states: “The distinction

between morals and law can be formulated very simply. Morality furnishes the
criterion for the proper evaluation of our interests; law marks out the limit within
which they ought to be confined. To analyse out a criterion for the evaluation of our
interests is the function of morality; to settle the principles of the reciprocal
delineation of one’s own and other people’s interests is the function of law”. Again
from this statement, there seems to be a very strong connection between law and
morality.

• All in all, legality and morality are intimately connected. Most legal rules contain
implicit or explicit normative messages; they point to proper behavior that ostensibly
best serves social needs. However, it should be noted that in the Western state model,
law is there essentially to protect what is regarded by the state to represent citizen’s
rights. It provides a safeguard against exploitation and corruption, protects the weak
from the strong and maintains public order and decency. It is not for the law to
legislate or interfere with personal morality as morality is relegated to the private life
of the individual.

• Definition of Morality- It is the quality of being in accord with standards of right or

good conduct or a system of ideas that fall into those same categories. We often hear
words about religious morality in society. Items that fall into the morally sound
category are qualities like good, goodness, rightness, virtue, and righteousness. In
other words, the term “morality” can be used either (a) descriptively to refer to a code
of conduct put forward by a society or, other group, such as a religion, or accepted by
an individual for her own behaviour or (b) normatively to refer to a code of conduct
that, given specified conditions, would be put forward by all rational persons.

• Regardless of the definition given above, it should be noted that there are still some
problems posed in addressing the issue or question of morality in relation to law e.g.,
some view issues related to morality as a personal matter and thus law should not be
 used to enforce morality, the test of what is moral or immoral is very subjective one,
etc.

• Looking at the issue of enforcement of morality by law, one may raise the issue of
whether the courts should be allowed to enforce morality. In other words, should the
court declare itself as the reeper and protector of morals of the nation? First and
foremost, before responding to this question, it is important to note that the problem
of morality and the law emerged in Britain in acute form in the era following the
Second World War. There was an upsurge of concern, prompted by highly-publicised
criminal trials of homosexuality offenders, and the appearance and sale of literature of
a sexually-explicit nature. It was suggested in some quarters that the restraints
imposed by the law in the name of morality were no longer effective and that the
disintegration of the social fabric was not far off. Public concern hastened the
appointment of a Royal Commission to investigate patterns of homosexuality offences
and prostitution.

• In addition to the above, the Report of the Committee on Homosexual Offences and
Prostitution (known as ‘the Wolfenden Report’) appeared in 1957, and recommended
changes in the law (i.e. homosexuality between adults who give consent and commit
this in private, should no longer be treated as a criminal offence); some of the
recommendations became the basis of the Sexual Offences Act 1967, discriminating
certain homosexual practices in specified circumstances. See also in 1976, the
Williams Committee on Obscenity, also recommended that pornographic material
should not be totally banned, but its displays should be curtailed. Intense debate
followed, producing points of view which tended to polarise around the arguments
stated by Hart (1907-1992) and Lord Devlin (1905-1992).

• Furthermore, the debate between Hart and Devlin whether or not law should enforce
morality was sparked off mainly by the publication of the Wolfenden Committee
Report and the decision in Shaw v DPP. See the brief facts of the case where Shaw
was charged and found guilty of three offences: (a) publishing an obscene article, (b)
living on the earning of the prostitutes who paid for the advertisement, and (c)
conspiring to corrupt public morals by means of the directory. On appeal to the House
of Lords, the question to be decided was whether the courts processed moral
justification. The House of Lords declared itself as the Reeper and protector of the
morals of the nation, and upheld Shaw’s conviction.

Enforcement of Morality by Law: (Continuation)

(a) Lord Devlin’s arguments

 • Looking at the arguments forwarded by Lord Devlin, it is important to point out that
Lord Devlin discusses the question: “What is the connection between crime and sin
and to what extent, if at all, should the criminal law of England concern itself with the
enforcement of morals and punish sin or immorality as such”. In answering this
question, Lord Devlin poses three questions:
i. Has society the right to pass judgment at all on matters of morals? Ought there, in
other words, to be a public morality, or are morals always a matter for private
judgment?
ii. If society has the right to pass judgment, has it also the right to use the weapon of the
law to enforce it?
iii. If so, ought it to use that weapon in all cases or in some; and if only in some, on what
principles should it distinguish?

• As to the first question, Lord Devlin believes that there is always something as public
morality. Morals are not a matter to be judged by private opinion and the society has a
right to judge matters of morals. For example, some people sincerely believe that
homosexuality is neither immoral nor unnatural. Devlin argues that if society is not
prepared to say homosexuality is morally wrong, there would be no basis for a law
protecting youth from ‘corruption’ or punishing man for living on the ‘immoral’
earnings of a homosexual prostitute. To Devlin, the structure of every society is made
up of both politics & morals. Take for instance marriage is part of the structure of our
society and it is also the basis of a moral code which condemns fornication and
adultery. The institution of marriage would be gravely threatened if individual
judgments were permitted about the morality of adultery, on these points there must
be public morality.
• Each member of a community has ideas about good and evil; these ideas cannot be
kept private from the society in which he or she lives. If persons attempt to create a
society in which there is no fundamental agreement about good and evil, they will
fail. Society is held together ‘by the invisible bonds of common thought’. Hence, if
the bonds of common thought are too far relaxed, members of the community will
drift apart.
• According to Lord Devlin, the answer to the second question is also ‘Yes’. Society
may use the law to preserve morality ‘in the same way as it uses it to safeguard
anything else that is essential to its existence’. It is not possible to set theoretical
limits to the State’s power to legislate against immorality. Society has the right to use
its laws to protect itself from internal or external dangers, as evidenced by the law of
treason and many more.
• Lord Devlin argued that an established morality is as necessary to the welfare of
society as is good government. If no common morality is observed, society will
disintegrate; indeed, the loosening of moral bonds is a preclude to such integration.
Hence, society is justified in taking steps to preserve its moral code, and there can be
no theoretical limits to this process.
• As to the third interrogatory, Lord Devlin argued that it is necessary to discuss how
society’s moral judgments ought to be ascertained. Here reference should be made to
the judgment of ‘the right-minded man’ (not necessarily ‘the reasonable man’); he can
be thought of, perhaps, as ‘the man in the jury box’. Let immorality be considered as
what every ‘right-minded man’ considers to be immoral.
• Lord Devlin argued that certain ‘elastic principles’ must be kept in mind by a
legislature anxious to protect morality and the State. First: there should be ‘toleration
of the maximum individual freedom that is consistent with the integrity of society’.
Second: punishment should be reserved for that which lies beyond the limits of
tolerance. These limits will be reached when an activity creates disgust among
‘right-minded persons’. ‘No society can do without intolerance, indignation and
disgust; they are the forces behind the moral law’. Further, society cannot be denied
the right to eradicate ‘a vice so abominable that its mere presence is an offence’. (It
has to be stressed, however, that the limits of tolerance will change from one
generation to another). Third: the need to enforce the law must be balanced against
respect for privacy. Fourth: the law should be concerned with minima, not maxima, so
the society’s standards ought to be set above those of the law.

(b) Hart’s arguments

• There is no such thing as broad and wide “shared morality” of Devlin. There is
morality no doubt, but amounts only to ‘minimum content of natural law’. Hart
agreed with the proposition that “some shared morality is essential to existence of any
society”, but it cannot be established by evidence. Therefore, the proposition is a
self-evident statement. For example, nowadays, since the society is pluralistic, there is
an amalgamation of tolerated moralities and not one shared morality. Diverse views
exist not only on matters of sex-morality, but also on issues of ‘capital punishment,
abortion, surrogate motherhood, euthanasia and the like. Thus, to Hart, legislators
should pay attention to the ideas of morality held by the majority. But Hart concedes
that the majority itself may be wrong. For instance, Saudi government imprisoned
Europeans for consuming alcohol.
• Devlin’s concept of morality as a single ‘seamless web’ which will be torn beyond
repair unless communal vetoes on behaviour are enforced by law, is, according to
Hart, an unacceptable viewpoint. Single breaches of morality do not necessarily affect
the integrity of society in its entirety. See the case of R v Lemon & Gay News 2-
where the application of a poem and cartoon about the crucifixion with homosexual
undertones was held to be blasphemous libel.
• According to Hart, there is a question of disobeying the law. Thus, it is quite
established, that one cannot preserve dignity and decency, through enforcement of
criminal law on the people. To Hart, it is the inducement towards obedience which
comes from an acceptance of the standards underlying the law.
• Law cannot enforce morality through coercion, as envisaged by Devlin. It is not
proved that legal punishment is the only motive for conforming with the idea of
 morality. According to Hart, members of a society should conform to its moral
standards through discussion, advice and argument, rather than by coercion. If
conformity to moral standards is imposed by sanctions, one has to pay the high price.
It may result in human misery and the deprivation of freedom.
• Devlin agrees to law prohibiting immoral acts, because they are offensive to others
and amount to public nuisance. Devlin gives the example of bigamy. Some people
think that in a country, where there are religious feelings for monogamy, laws against
bigamy should be treated to protect such feelings against desecration of the ceremony.
Hart suggests that a bigamist should be punished not for being irreligious or immoral,
but for creating nuisance.
• According to Hart, Devlin denounces immoral acts which are done in private. Hart
believes that we have a right to be protected against any offence to our feelings by
some public demonstration of an immoral act. But at the same time we have no right
to be protected from distress which is caused by knowledge of the fact that certain
acts are done in private.

(c) Criticisms of both arguments

• Regardless of their views i.e., Lord Devlin and Hart, both have been criticised or
attacked. For example, looking at Lord Devlin’s view, it has been argued that law
should not enforce morality because of: the moral feelings may not be spread out
widely; if the law enforces morality, it is possible that it may create more social evils
rather than prevent them; the law has not got the machinery well equipped for the
task; if law were to enforce morality, it would destroy personal freedom, prevent
freedom of choice and change the state into a totalitarian state.
• Still on Lord Devlin’s view, his test of an ordinary reasonable man is not reasonable.
The reasonable man forms his opinion after a complete discussion of the pros and
cons of all relevant facts and even then, one finds that the opinion is divided. In such
cases, Devlin wants the majority opinion to prevail.
• Dworkin finds certain flaws with Devlin e.g. His arguments for law enforcing
morality are not valid, because he is mistaken about what is to be disapproved on
moral principle. Dworkin rejected his idea of what counts as the community’s
morality. Also, his view that criminal law should be drawn from public morality is
basically not correct, etc.
• G. Hughes points that Devlin makes use of the judgment of the right-minded person
to decide about the matters which should be banned by law. He states: “the yardstick
is to be the feeling of right-minded people, though we are not told who are to be
considered ‘right-minded’”. (See Devlin’s stand on the crime of abortion i.e.
nowadays, many people do not understand that abortion is wrong)
• As to Hart, he expands Mill’s ‘harm principle’ on matters of sexual morality and
relies on paternalism to make out a case of prohibiting homosexual intercourses
among the young people, because it is going to corrupt them. Dias points out that the
said “corruption” implies taking on a moral position before paternalism.
• Hart arguments are not all convincing about sex abuses. He suggests that paternalism
is permitted in matters of bigamy and polygamy. He believes that the law should
prohibit them because of i.e. it throws the legal obligation of the parties into
confusion, etc. Lord Devlin points out if the law can show paternalistic interest in
such matters, which are mentioned by Hart, then why should it not also show a
paternalistic approach to the morals of the people in general. Examples are live sex on
the theatre stage, exhibition of sadism, wife swopping and keeping of mistresses. It is
contradictory if the state assumes its responsibility by means of laws for education,
health, trade, etc., and at the same time denies it for morals.
• Dias criticises Hart for accepting the distinction between public and private spheres of
morality, as drawn by Wolfenden Committee Report. The latter is not the concern of
law. He points out that some acts are different and they depend on whether there is an
immoral purpose. For instance, accosting and soliciting a girl by money would be for
prostitution and, hence, the purpose is immoral. But on the other hand, if these things
are for a student charity show, the purpose is moral. Dias believes that what a person
does in private can have its effects outside also, because the social framework
comprises so many moral institutions.
• In addition to the above, Dias states that since the state shows concern for the conduct
of its citizens, it may rightly show its concern with their moral attitudes. He further
points out the reason for prohibition is that social existence depends upon
coordination. This in turn demands prohibition on individual action. To relax legal
prohibitions is the way to social destruction, particularly when there is little assurance
of self-discipline. As he puts it: “The easing of laws and penalties on anti-social
conduct may conceivably result in less freedom and safety for the law-abiding”.

Conclusion:
• It is evident that both law and morality serve to channel our behaviour. Law
accomplishes this primarily through the threat of sanctions if we disobey legal rules.
Morality too involves incentives: bad acts may result in guilt and disapprobation, and
good acts may result in virtuous feelings and praise.
• The relationship between law and morality is one of the more enduring problem of
Jurisprudence. It has come to be the locus of the dispute between natural law and legal
positivism and has generated a variety of controversies about the scope of legal
enforcement. Like many perennial philosophical issues, moreover, it has endured
because we are pulled in two opposing but equally plausible directions.
• Whether law should enforce morality, it is a mixed up legal, moral and political
question. On this question there is a division of opinion, too. For example, Devlin’s
supporters continue to stress the need for the law to assist in the suppression of
intolerable vice. However, critics remind them of the assertion that he who tries to
determine everything by law will foment crime rather than lessen it. On the other
hand, Hart’s supporters urge that argument on these matters must continue. But, critics
 remind them of the need for the law to correspond with the community’s declared
feelings and aspirations.

Book to read: Defending Undefendable