Oscar Wilde, a renowned poet and playwright from the 19th century, was convicted of Sodomy and ‘gross indecency’. Under the Criminal Law Ammendment Act 1885, Wilde was sentenced to two years hard labour- whilst incarcerated.
The Labouchere Amendment amended the CLAA 1885, prohibiting all homosexual acts between males done in private or in public. The Act stated that any male who commits, and/or is a party to the offence, would be guilty of a misdemeanor. It’s stated that the accused would be liable ‘at the discretion of the court to be imprisoned for any term exceeding two years, with or without hard labour’.2 This amendment was due to the influence of religious morality on the legislation. This section of the essay will explore law and morality, and how they impinge on each other.
The definitions of ‘law’ and ‘morality’ have evolved over time. In the 21st century the consensus is that the law is essentially a ‘system of rules’ that regulates the behaviour of its members, by enforcing penalties for actions deemed harmful or unacceptable.3 The noun ‘morality’ is derived from the Latin word ‘mos’- which means custom/habit/manner etc.4 Morality relates to the individual conduct that one accepts for himself as appropriate.
There are three key differences between law and morality:
- Firstly, the main factor that differentiates morality from law is that morality is subjective and reflective of personal conduct; in contrast to law which is an objective entity actively enforced on all members of the society in which it is laid. However, Natural Law Theorists have argued that law and morality are connected, and that the validity of the law is dependent on morality. This idea is called the ‘Overlap Thesis’.
- Secondly, law is primarily concerned with the actions of its members, particularly those that are considered detrimental to themselves or others. Morality is generally about the personal belief system of individuals. Although, ones beliefs are likely to influence their outward behaviour- and therefore their inclination to abide the law or deviate from those rules. This is seen in criminal law, where by the motives of the criminal- ‘mens rea’6, are factors that are considered in their sentencing.
- Lastly, the law is regulated by bodies of the state, and penalties can be enforced for deviation from the law of the land. In contrast to morality, which is generally down to individual freedom of thought, belief and expression, which in fact is a crime to infringe on. However, this is complex as there are laws that also regulate individual morality, by prohibiting any speech/actions that are considered discrimination.
Overall, law is a man made system of defined rules that derive from predetermined legal rules-i.e Case Law, and morality is more adaptable and susceptible to change. Although, there are areas of law that have been impacted by morality; such as Homosexuality, Abortion, and Euthanasia.
Homosexual practise has likely been present in society prehistorically. However, as heterosexuality was the dominant practise, homosexuality was not the accepted consus. It was deemed unnatural, morally corrupt, and was abhorred. In pre-modern Britain this was largely due to lack of religious freedom for individuals, as it played a large role in society and heresy or deviation from the accepted religious practise was punishable. Under Henry VIII, the Buggery Act of 15338 outlawed homosexuality- described as ’sodomy’ in the bible.
As society became more modern, and diversity has became more universal, attitudes towards religion became more liberal and this ultimately impacted legislation. Religious freedom also lead to a shift in the morality regarding homosexuality as people were given the freedom of thought and expression without fear of persecution. Also, as prominent figures in society came out as members of the LGBT community, this changed attitudes/’morale’ towards homosexuality and encouraged change. This is arguably what shifted the narrative of homosexuality and encouraged the state to change legislation, to adapt to modern society and the radical change that was taking over. This is shown in the way that under David Cameron, a Conservative PM ,and evangelical Christian, same sex marriage was introduced11; and discrimination against individuals for their sexuality was criminalised.12 This shows that morality changed, even amongst Conservatives, who are predominantly religious.
Although Christian churches are increasingly embracing the LGBT community and becoming more liberal in their religious morality13 this is still a slow progression, as evidenced by the Ashers Bakery case.14 Nonetheless, it is evident that morality in relation to homosexuality has changed drastically since the 19th century- when Oscar Wilde was convicted.
Since the Victorian Era, the LGBT community is now recognised in English Law and homosexuality have been given the same rights as heterosexuals, such as: sexual freedom15, marriage rights16, adoption rights17, and are protected against discrimination. This is largely due to religious freedom, but also the Renaissance period- known as the ‘Age of Enlightenment’; that saw a surge in artistic expression and challenged the social constructs of gender.
Overall, wether morality playing a part in the change in the law of homosexuality is a controversial topic. If the law is influenced by morality, and (as has been established)morality is adaptable, this can create uncertainty in the law. This is why we have precedent. However, the adaptability of morality can be advantageous in keeping up with modern society. The issue is allowing moral freedom, without infringing on the rights of others, as evidenced in the Ashers Baking case.
The Reproductive Rights of women is also an area of English law which has been impacted by religious morality. This is due to the fact that in most religions denominations, particularly Catholicism, taking another life or terminating pregnancy is playing God and ‘gravely contrary to moral law’.19 However, in the 1960’s there was a rise in ‘back street abortions’ which was unsafe and detrimental to women.20 As a result of the moral corruption, it was evident there was a fault in the law. The Abortion Act 196721 was introduced, as an ammendment of the Offences Against the Person Act 1861.22 Due to medical advancement, abortions were able to be done more safely and this impacted legislation- this is shown in the 1981 Royal College of Nursing case.
Similarly to Abortion, law relating to assisted suicide has also been impacted by morality. The moral consensus is that taking another life, regardless of motivation, is unacceptable. It only matters that there was intent.24 However, in circumstances where it is not morally appropriate to continue treatment which does nothing to salvage the life of an individual, but perpetuates suffering- discontinuing treatment is lawful. This is shown in the Airedale N.H.S Trust case.
- https://www.parliament.uk/about/living-heritage/transformingsociety/private- lives/relationships/collections1/sexual-offences-act-1967/1885-labouchere-amendment/1885-labouchere- amendment/ (Accessed 04/11/2018)
- https://en.oxforddictionaries.com/definition/law (Accessed 04/11/2018) http://latin-dictionary.net/definition/27301/mos-moris (Accessed 04/11/2018) https://www.iep.utm.edu/natlaw/ (Accessed 04/11/2018)
- https://www.allaboutlaw.co.uk/stage/study-help/criminal-law-actus-reus-mens-rea (Accessed 04/11/2018) https://www.bl.uk/collection-items/the-buggery-act-1533 (Accessed 04/11/2018)
- https://bible.knowing-jesus.com/topics/Sodomy (Accessed 04/11/2018) https://www.believeoutloud.com/background/christianity-and-lgbt-equality (Accessed 04/11/2018)
- https://www.christian.org.uk/case/ashers-baking-company/ (Accessed 04/11/2018) http://www.futurescopes.com/dating/gay-dating/3230/homosexuality-renaissance-period (Accessed 04/11/2018)
- http://www.bbc.co.uk/religion/religions/christianity/christianethics/abortion_1.shtml (Accessed 04/11/2018)
- https://www.1900s.org.uk/1900s-abortion.htm (Accessed 04/11/2018) https://www.sentencingcouncil.org.uk/about-sentencing/types-of-sentence/life-sentences/ (Accessed 06/11/2018)
- https://fullfact.org/crime/reoffending-short-sentences/ (Accessed 06/11/2018)
- Jacqueline Martin, OCR LAW for AS, Third Edition.