It can be argued that law and morality’s intertwining connection cannot be mere coincidence. The Academic Lisska suggests that the “connection between a moral theory and a legal theory should not be surprising.” based on Aquinas’s theory of Natural Law. Aquinas’s Natural Law theory depends of the belief that morals and the law are connected and, modern laws are influenced by moral law. Moreover, Lisska argues that “there is a necessary connection between the demands of a moral theory and the requirements for justified law making” in the idea that to have good laws, moral theory is necessary.
The European Convention of Human Rights (ECHR) and subsequently the Human Rights Act 1998 (HRA) are good examples of law and morality in modern law being connected. The creation of the ECHR and the HRA came following the Second World War and the disasters of The Holocaust, evoking a collective desire for moral rights to be widely acknowledged under the law to prevent atrocities recurring. The HRA made UK courts “consider whether legislation is compatible with certain human rights” and subsequently morals. The courts then “can issue a ‘declaration of incompatibility’” that declares an English Law as being a breach of human rights without removing its legality. The purpose of this moral and legal acknowledgement is to ensure that member states of the European Union adhere to the same understanding of morals and their significance in society.
The Rule of Law can be defined as the authority that governs how law is applied. Arguably, it “is a principal of institutional morality” and explores how morals come into effect in the administration of law. Many opinions of the Rule of law see the establishment of equality under the law; Dicey suggests, that equality under the law creates fair and just laws to be applied to all, sharing a moral undertone. Moreover, the rule of law promotes “the core institutional values” of society which undoubtably includes social moral values. Without this, it would be unjust to apply the Rule of Law as people would be less likely to adhere to the general morals to which it is implied, as suggested by Slorach “the standard created by law must reflect the views of the majority of the population to ensure it can be enforced” . It must be remembered that it is the role of the law to regulate “people and institutions in a society” , yet if the main powers fail to adhere to the moral beliefs of that society when creating the law, it would have failed in its key objectives to maintaining law and order. Slorach continues to argue that “there’s interplay between society’s values, along with ethics and religion with the law” . it is argued that there must be an intervention of morals, “ethics and religion within the law” of society for the law to carry out its fundamental function. Without the law’s adaptation to developing moral views in society, the law fears becoming unjust and undermining its democratic nature; Therefore, inferring that morality and modern law are connected.
Legal scholars and theorists have opinions on the deliberate connection between law and morality. Lisska suggests that theorist, Lon L. Fuller believes his opinion on law and morality “provides an explication of the ‘morality that makes law possible’.” ;inferring that law and morality cannot be independent of each other because laws have a heavy basis of morals. “Fuller refers to […] eight laws as the ‘internal morality of the law’ [they] make up the inner structure of the procedure which makes the law possible” . This is relevant in understanding how some believe that law is constructed in the image of society’s morals and they cannot be separate.
Despite this, if it is mere coincidence that morals and law coincide, it can be argued that “legal moral prohibitions help to form the moral ideals of many citizens” and therefore the law dictates morals rather than vice versa. Yet it can still be contemplated that they are connected purposefully, as a means of controlling societal views and opinions in a non-legal sense “and thereby support moral views contrary to immoral acts” .
Alternatively, some argue that morals and the law can only be connected by coincidence under the belief that the executive powers within society happen to share similar moral beliefs. It can be developed that many lawmakers derive from indistinguishable backgrounds and therefore share similar moral views; when passing laws, unconsciously these shared morals have been incorporated and therefore dictate the moral undertones of the law.
It can be inferred that “an Ideal society would be one in which law reflected social customs and they were morally justifiable” yet this cannot be realistically achieved as “as people have different views on what they believe to be right and wrong” which causes societal clashes and injustice. An example stated by Slorach is adultery, as it “isn’t illegal, but it is immoral” . Individuals choose to be unfaithful in relationships, but this has not made it illegal to do so, inferring that law and morals do not necessarily aim to share viewpoints, but they can coincide on issues.
Slorach subsequently supports the belief that “the alleged incorporation of morality is inconsistent with law’s authority” and that “moral principles can become part of the law, but […] this happens only if they are ‘incorporated into a particular legal system;” . Therefore, a view that morality’s influence on the law is inconsistent can be seen in the example of adultery; the only way morals and law can coincide is if they are added purposefully into specific legal systems.
However, there will be moral issues such as euthanasia and abortion, where society will continue to disagree, yet it does not stop the law from reflecting the social moral standpoint; for example, the Abortion Act 1967 or the Suicide Act 1961.
Under the ECHR, the law on euthanasia and abortion is down to a state’s margin of appreciation, so the legal and moral outcome depends on the opinions of the state. Cases such as Pretty v UK showcase how article 2 of the ECHR “ cannot, without a distortion of language, be interpreted as[…] namely a right to die {or} a right to self-determination” , and that reflects the moral and social opinions of the United Kingdom, whereas there are cases in Switzerland such as …. that allow for euthanasia. This explores how a state’s moral beliefs reflect strongly on the laws of the country, making it impossible to state that their connection is mistaken.
Without a connection between the two, “legal duty can diverge too much from morality and become hard to enforce without violent enforcement” , which counter acts the purpose of morality and the law being able to coexist and influence each other.
In conclusion, it can be argued that there are deliberate connections between law and morality as a means of showcasing the opinions of society. Individuals are more likely to follow law if it reflects their own beliefs; as well as this, it prevents injustice and totalitarian dictation while promoting democracy.
2019-11-11-1573510970