(INTRODUCTION TO LEGAL THEORIES)

(LAW 034)

CHAPTER 4:
LAW AND MORALITY

PREPARED BY:
MADAM NAMIRAH MOHD AKAHSAH
 LEARNING OUTCOMES
• At the end of the lecture, the student must be able to:
i. Understand the meaning of morality, types of morality
and standard used to determine moral and immoral
behaviour.
ii. Apply academic and critical thinking pertaining to
aspect, sources and distinction between law and
morality
iii.Identify issues and problems pertaining to immoral
law and enforcement of moral values in society.
STRUCTURE OF THE
LECTURE
 MORALITY ISSUE....

PROSTITUTION ABORTION

MARIJUANA/DRUG HOMOSEXUALITY
 WHAT IS MORALITY?
• Relate to the concepts of what is right or wrong in a particular
society - what is acceptable or unacceptable conduct in the society
– known as moral attitudes.

• As rules of conduct that are associated with certain distinctive

psychological and social attributes. Those who obey the moral rule
will tend to feel the sentiment known as virtue and if he disobeys
the morality rules he tend to feel guilty.

• Strawson (1961) as "rules or principles governing human

behaviour which apply universally within a community or class“.
• Some reserve terms moral and immoral only for the realm of
sexuality and use word ethical & unethical when discussing how
the business and professional communities should behave.
• However, it does not only refer to sexual morality, ethics
or violence acts. It concerned about ideology beliefs and
social attitudes.
• A society code of morality may be defined as set of beliefs,
values, principles and standards of behaviour which found
in all social groups.
 TYPES OF MORALITY
(APPLICATION OF MORALITY IN SOCIETY)
• The application of morality in society, four aspects can
be considered:
a) RELIGIOUS MORALITY
– Concern the relationship between God, not with any
other human beings.
– God revealed to human beings on how to be a good
believers.
– The sanction by the God is in the form of sin/good
deeds.
– Violating any commandments of God, a person acting
immoral towards God without acting immorally towards
anyone else.
b) MORALITY AND NATURE
– Relationship between the human & nature.
– It is significant for human to deal with nature in a moral
manner
c) INDIVIDUAL MORALITY
– Individual-centred i.e. may /may not be sanctioned by
any society or religion.
– The person himself choose to believe ( within his own
conscience) something is immoral or not and not being
dictated or told by the society, law, or religion.

d) SOCIAL MORALITY
– Relates the relationship between the members of the
society as a whole.
– Most significant aspect of morality that cut across all of
the other aspects and is found in more ethical systems
than any of the others.
STANDARDS USED TO DETERMINE
MORAL/IMMORAL BEHAVIOUR
SOURCES OF MORALITY
1. Supernatural being –
• some people believe moral values comes from higher or
supernatural beings.
• God instruction through sacred documents; Al-Quran,
Bible. – God reveals to human beings what is right or good/
bad or wrong.

Example: The value of morality in Islam is very high. In fact,

the Prophet (SAW) said: That on the Day of Judgement there
will be nothing weightier in their balance than their good
moral character. The Islamic concept of life and morality has
shown us that the aim of man is to seek the pleasure of
Allah.
2. Nature –
•Others believe morality embodied in nature and there are
‘natural law’ that human beings must adhere if they are to be
moral.
•For example :
Example: homosexuality is immoral because it goes against
‘natural moral law’, its against the nature for beings of the same
sex.

3. Human beings –
•Other believe things can have values created by a man,
customary belief.
•Meaning to say, If there are no human beings, then there can
be no moral values.
 MORAL ABSOLUTISM VS.
MORAL RELATIVISM
MORAL ABSOLUTISM MORAL RELATIVISM

• Some people believe that moral • Not absolute as what is moral

value is absolute, which once and immoral is relative only to a
found must be adhered to. specific culture, group or
• Murder and terrorism is real individual.
absolute and never changes. It • ‘What is right for me, may not
logically irrefutable as it comes be right for you’ or ‘what is right
from God. for American may not right for
• Moral absolute applies for all Asian’
time and to all human beings • Not absolute values at all, all
everywhere. values relative to time, place,
person and situations.
 WHY BE MORAL?
• Preston : we should be moral
because we would expect others to
treat us morally.
Thiroux offer several reason why we should
be moral:
1 2

3 4
RELATIONSHIP BETWEEN LAW
AND MORALITY
• The relation between law to morals is sometimes describe
as two intersecting circles:
i. the part inside the intersection representing the common ground
between law and moral.
ii. the part outside representing the distinctive realms that each other
holds (exclusive sway).

• Law and morality reinforce each other - misappropriate

something belong to other – there can be no security in life.
• By having moral code human are ought to refrain
themselves from doing something that is against the code -
supplement with law.
• Morality is the basis of law – In a primitive society, there
was no difference between law and moral rules as they
share the same sources (custom, religion).
 WHERE MORAL AND LAW
DIVERGE
• Even when the act is considers as immoral but no legal
consequences imposed upon such act.

CONSIDER THE FOLLOWING SITUATIONS:

Scenario 1:

•Rules which are • Rules governing those acts which

immoral but legal. are wrong according to moral but no
legal sanction will be imposed
against those who have committed it.
• EXAMPLES?
CONSIDER THE FOLLOWING SITUATIONS:
Scenario 2:

•Moral values but not legally • No formal organization to monitor the

enforceable. obedience of law. Usually strongly
adhered to, but no form of sanction if a
member of society does not follow it.
• Eg: Helping the poor.

Scenario 3:

•Immoral & illegal. • They are socially wrongs and at the

same time we require law to render
them illegal so that the authority may
bring them to face the justice.
• EXAMPLE?
 SIMILARITIES BETWEEN LAW AND
MORALITY
• Law regulates or govern human conduct and it does this
through rules.
• Morality seeks to guide human conduct and also through
rules.
• Therefore, share the same feature of guiding conduct
through rules.
• Hans Kelsen – the relationship between law and morals are
grounded on the fact that law by its very nature is moral,
which means behavior commanded & prohibited by legal
norms is also commanded and prohibited by the moral
norms.
• Law and morality related but also in a way different.
 DIFFERENCES BETWEEN LAW AND
MORALITY
Law Morality
• Rules and regulations • Values and beliefs in a
1 made by the sovereign particular society.
Source • Dictated by God or society
& enforced by sanction

• To establish a set of • To promote discipline,

rules and regulations. ethics in human society
2 Aim & • To bring a safe and religious value.
objective environment to society. • i.e. marriage, customs,
• To settle certain issues traditions.
in society
• Pervasive. Exists in all • More into human
3 Areas of
aspects of life. relations, sex and religion.
coverage
 DIFFERENCES BETWEEN LAW AND
MORALITY
Law Morality
• Formal • Informal
Legal
4 • Uniform • Non-uniform
enforcement
• Standard • Non -standardized
• Strict. • Very loose. Internal
• Followed because guilt.
afraid of • Society may look
5 Obedience
punishment/sanction. negative against the
offender (public shun,
embarrassment)
• More predictable, clear • Unpredictable, vague.
and precise. Wrong and right is
6 Predictability
• Wrong and right is blur.
clear.
• HLA Hart lays out several criterion for
distinguishing legal rules from moral rules :
LEGAL RULES (LAW) MORAL RULES

1. • Legal Rules can be changed • Cannot be changed.

• Not repealed or corrected.

2. • Legal rules may be unimportant. • Rules that cease to be

An unimportant law remains until it important, are not longer
is repealed. considered moral rules.

3. • Some laws are based on the • Someone who breaks a moral

notion of strict liability and no rules may find an excuse for not
excuse is possible. keeping it.

4. • Legal pressure is characteristically • Reminder of the moral character

exerted by fear of punishment of the action and the demand of
morality.
 IS MORALITY
A NECESSARY
INGREDIENT
OF VALID
LAW?
 GENERAL VIEWS
• Law is best understood as a branch of morality and
justice rather than its incorporation of orders and threats
is of its ‘essence’. Therefore, judges claim their function
is to uphold morality.
• But, not all laws reflect good moral. There are laws
which are immoral. Due to the facts law drafted with
certain objective and aim not necessarily with morality in
mind.
 POSITIVIST SCHOOL
• Legal positivism contends that it is no sense a
necessary truth that laws reproduce or satisfy certain
demands of morality.
• Uphold separability thesis known as anti-thesis, which
claim law and morality are separated.
• Legal validity does not depend on the conformity of the
provision to some overriding moral principles, it depends
rather on the satisfaction of the conditions associated
with the law making process.

John Austin - law is legally valid if and only if it is

commanded by the sovereign body of a particular state.
• No duty on sovereign to make laws which are
morality good or which promote the welfare of
the people. – kept out the pale of theory.

Justinian –
John Austin –
‘what pleases the prince
existence of the law is
has the force of law’ :
one thing, its merit or
whatever enacted by the
demerit is another as the
law making agency of a
key is command of the
society is the law in the
sovereign.
society.
 • However, Hart takes the side of separatist, but he agrees that
moral & social factors are an integral part on any concept of law.
• Minimum morality – essential part of every community.
• He argues what is utterly immoral cannot be law.
• Legal system must be rest on a sense of moral obligation since
it does not and cannot rest on mere power of man over man.
DIFFERENT
VIEW
BY
HLA HART
 NATURALIST
• Laws emanate from god and all laws necessarily
must be good.
• Overlap thesis –necessary relation between law
and morality. (inseparability of law and morality)
• Naturalist maintain that law making is a purposive
activity that must satisfy certain moral requirement
in order for it to have laws as it outcome.
• Idea that nature of law is explicated ultimately in
moral terms.
 Cicero – striking down of PL which contravened with
NL.
• Thus, law under Hitler or in the Apartheid south African
state was not really law as these laws are immoral.
Thomas Aquinas –
formulated the theory lex
John Locke – rules that
injusta non est lex. Any
the legislators make for
law which offends the
other’ men actions must
prescription natural law is
as their own and other
unjust and immoral, and
men’s action, be
such not law.
conformable to the will
of God and no human
sanction can be good or
Blackstone - echoed valid against it.
Aquinas that immoral law
is not law at all.
 SOCIOLOGICAL SCHOOL
• Hans Kelsen - law is legitimate only if the ruler
has a right to enact, and he has the right only if
the citizens are persuaded to consent, that is,
rules by persuasion and not by force.
• Golding– validity of laws that exist in a given
society, measured by 4 types of criteria.
• (1) behavioral criteria – set of rules in valid in
minimal sense that the behavior of the members
conforms the rules.
• (2) Psychological-behavioral criteria – valid law
are laws that are normative for the conduct of the
members and used as guides action.
• (3) Deontic criteria – not merely used as guides but
to be valid law it must be binding on its member. If
law has no obligation to obey, not consider valid law.
• (4) Minimum content criteria – must constitute the
minimum content of very basic to be valid. Eg : there
must be laws that prohibit the free use of violence in
the society.
 ISSUE:

DO WE HAVE TO
FOLLOW IMMORAL
LAW?

POSITIVIST NATURALIST
 LEGAL DUTY TO OBEY IMMORAL LAW?
POSITIVIST PERSPECTIVES
POSITIVIST OPINION JURIST

• Absolute duty to obey • Socrates : Must obey in all circumstances.

even evil laws • Eg: Socrates prosecuted- found guilty for
• Unjust/immoral law subverting– sentenced to death. Before the day
should be obeyed of his death, his followers persuade him to run
because the away from prison – Socrates refused – he
characteristics of PL would not disobey the law of the land.
itself. • Aristotle : positive law should be obeyed even if
contrary to natural law. Even law is deficient, it
should be obeyed.
• Hart : law- non optional and obligatory. Immoral law
to be obeyed by the judge, advocate and people.
Judge not import his own ideas into the
interpretation of law. The validity of law not to be
questioned no matter how bad the law may be
morally.
 LEGAL DUTY TO OBEY IMMORAL LAW?
NATURALIST PESPECTIVES
NATURALIST OPINION JURIST

• If human law was contrary • St Augustiqne - Formulated the theory of “lex

to the law of God, it is not injusta non est lex”= if law is not moral, then it
law at all. is not a law at all.
• Don’t have to obey immoral
law. • Thomas Aquinas – human law ought to be
obeyed unless it contravened natural law.

• Lord Mansfield: “Whatever is contra bonos

mores et decorum (whatever contravenes the
public moral shall be punished).
 LEGALISING MORALITY

The question of legal enforcement

of morality continues with new
problems such as gay marriages,
surrogacy mother, cloning &
euthanasia.

Should the law allow or forbid the

doing of something which it
acknowledged to be immoral?
Should we legalize morality?
What are the problems if we
legalizing morality?
• Upgrading the status of moral rules into legal -
certain immoral acts are picked up by the law-
makers and enforced through legally enacted rules
– theft , murder.
• However, there are certain laws that are considered
immoral and erodes the social values and moral of
the society.
• E.g. legalizing homosexuality, abortion, upholding
marriage of the same sex, etc.
• This led to numerous debates claiming that certain
act fall within the realm of private morality and
thus should not be criminalized.
PROBLEMS IF LEGALISING MORALITY
1. AMBIGUITY - Morality cannot be taken as law
because, most of the time, morality is not clear,
that opens many rooms for argument and
uncertain, since its not codified.
• There are certain moral values which the law
does not regulate, eg: greediness,
vindictiveness and materialistic attitude are
immoral but perfectly legal.
2. Jurists are still divided opinions whether every aspect of
immorality should be governed by law especially when
reference is made to the purpose of law.
•For instance, should law limit the liberty of men to
consume pornography, women to have abortions, of
consenting adults to commit incest?
•Answers based on religion cannot appeal to non-believers.
•A secular answer given by Hart is that some shared
morality is essential to the existence of any society.
• How far law should enforce morality is the
question followed by more uncertainties:
• 1. should the law uphold every aspect of morality
• 2. what right does the state possess to enforce
one moral standard over another?
• 3. morality is subjective as varying moral
standards exists, who decides what is moral and
immoral?
• 4. what basis is one is judges as immoral?
 3. Public vs Private Morality
I. Public morality – public morality refers to the conduct
that affects other individuals or the larger society, and
which should be governed by externally imposed laws. 
II. Private morality - Anything he or she does behind closed
door is her private matters (private morality). The public
has no role in determining what is right or wrong for him
or her.
• Can someone commit something immoral which does not
cause any harm to anyone?
• He or she may claim he has a right to his own body and
anything done to his or her body is within her individual
right.
• Which one carry more weight?
Conflicting stands with regard to the legal enforcement of
morality can be found in publication:

• Law must be acceptable to the

general moral sense BUT law
should not enter the field of
private morality unless such
Wolfenden Report on conduct affects public good.
Prostitution and • Even if it is considered
Homosexuality immoral, it will not affect the
Offences (1957) morality of the society as the
function of criminal law is only
to preserve public order not
interfere with private lives of
citizens.
• The committee which prepared the report, recommends as
follow:
 for the decriminalization of homosexuality between
consenting adults in private.
 society and law ought to give the individual freedom of
choice in private morality to equate the sphere of crime
with that of sin, is not law business.
 There must remain realm of private morality and
immorality.

• However, the committee caveat its recommendation : it is not

to condoned or encouraged private morality.
 According to Martin Golding, distinction
between private morality and public morality:

1. A distinction between what is done in

private and what is done in public
2. Distinction between an individual
personal ideas and the positive morality
of society.
3. Distinction between acts that do not
harms others and acts that do harm
others – called victimless crimes.
 CASE STUDY ON MORALITY

Victimless crime
• Activities which involves no harm to others especially homosexual,
pornography. Difficult for law to enforce even immoral.
Homosexuality
 In UK under Sexual Offences Act 1967 homosexual between
consenting males in private no longer offence.
 In Knuller v. DPP [1973] AC 435 (small advertisement of
homosexual), Lord Reid stated ‘ I find nothing in the Act indicate
that parliament thought...that indulgence in this practice is not
corrupting. Even though...corrupting, if people choose to corrupt
themselves that is their affair and law does not interfere. But no
license will be given to others to encourage these practices.’

51
Euthanasia
• Take active measures to end patient’s life. It against the law
but what if patient allow or cannot be save anymore???*
Abortion
• Roe v. Wade (1973) allows termination of pregnancy
during first trimester in and state has authority to make
laws to limit it. In Malaysia, It prohibited under Section 312
Penal Code except for medical reason. But is it cover rape
and incest victims??

Surrogate motherhood
• Find woman volunteers to carry for pregnancy on couple
who cannot conceive on their own.
• In case Baby M (1988), New Jersey Supreme Court defines
that the custody of baby must be given to biological parents
but surrogate mother get visitors rights.
– In Malaysia, no laws govern it even it against Islam

52
Human cloning
• Conflict between science and law especially religion.
Majlis Fatwa Malaysia issued fatwa against this type of
cloning.
Transsexual
– Conflict of law and morality can be find in Wong Chiou
Yong (P) V Pendaftar Besar/Ketua Pengarah Jabatan
Pendaftaran Negara [2005] 1 MLJ 551, VT Singham made
this remark on the case involving change of gender:
‘This court is of the view that if the application is decided in favour
of the applicant, this court would usurp the function of Parliament
and it is trite that that is something that the courts must not do as
it is not the function of thecourt to substitute its own views to fill
gaps in the statute but merely to interpret each phrase in the
statute in itsstatutory context.’ (para. 39)

53
MORAL AND LEGAL PATERNALISM
• Extend of individual liberty
• Legal moralism involves laws prohibiting what is
offensive to the majority of a community, or
actions seen as destroying the fabric of a society
• Paternalism involves the state eroding individual
liberty by behaving like a parent and forcing the
citizen to behave in her best interest.

• **continues next slides

THANK YOU