To state that the relationship between law and morality is one of mere coincidence, would be inherently false. There has long been controversy and debate between positivists and natural law theorists as to what extent morality influences the law. Essentially, one can argue that both our common law system and Acts of Parliament themselves are built upon and influenced by core moral values which are ever-present in today’s modern European society and continue to develop as time goes on. Jerome E. Bickenbach describes the relationship as “the law [being] merely a social instrument to be closely monitored and assessed against extra- legal standards of moral or political acceptability” , therefore supporting that it is, in fact morals, which govern the law.
Morality is a subjective concept, however there are key principles which achieve basic consensus in our pluralistic society, such as the basic idea that killing another human being is morally wrong, which is reflected in our legal system as a punishable offence. The laws on murder and theft mirror those of the Ten Commandments (set out in the Christian holy book- the Bible), ‘Thou shall not kill’, ‘Thou shall not steal’. Due to the omnipresence of religious principles in UK society, they have formed the basis for many longstanding moral concepts, that we uphold to the present. Such a view is also shared by Martin Partington in his book Introduction to the English Legal System.
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Subsequent cases confirm that moral rules still in fact influence the law on murder, such as in R v Dudley and Stephens in which the judges discussed the sanctity of life in relation to the shipwrecked sailors killing and eating their cabin boy out of ‘necessity’. There, Lord Coleridge himself states that “sin and crime are spoken of as apparently equally illegal” demonstrating the relevance of morality, in our legal system today. Such principle was also raised by Lord Griffiths in R v Howe , where he spoke of the need for the law to protect the people during this time of prevalent violence and terrorism, stating that “the sanctity of life lies at the root of this ideal and [he] would do nothing to undermine it” . Both cases demonstrate judges applying moral principles by means of interpreting the law and coming to a just decision, therefore illustrating that the two concepts clearly reinforce each other in order to create a balanced legal system, a relationship not born by chance.
Judges can also change legal rules in order to reflect the moral views of society. Since the 1966 Practice Statement, the House of Lords has the right to change its past decisions in order to modernise the law, when it is ‘right to do so’ . In 1991 it was used in the case of R v R to reverse the precedent which permitted for a man to be able to rape his wife without sanction. The court recognised the relationship between the changing times and the need for “the common law…. [to evolve] in the light of changing social, economic and cultural developments” , took it upon themselves to eradicate a morally repugnant law based on society’s changed view surrounding the subject. Such action follows Bickenbach’s aforementioned framework of the law working to fit with the moral and political acceptability of the time.
The influence of morality upon legal decision can also be seen in the highly controversial case of R v Brown (and others) The majority judges took a natural law approach and emphasised morality, for example they said that the defendants’ acts were “degrading to body and mind” “cruel, degrading, divorced from morality” and that “pleasure derived from pain is an evil thing” , evidently referencing and enforcing their strict ideas of morality. The two dissenting judges were more liberal, emphasising that the law should respect personal autonomy and individual freedoms, even going so far as to say that the law should allow consent to S47 injuries in cases of sadomasochism, clearly taking a more positivist view. The case was decided
There are however instances which may make one debate whether the connection between really is as solid as it may appear. A topic that clearly demonstrates these differences is that of homosexual equality in the UK. Homosexuality was legalised in the Sexual Offences Act 1967, an act which was commenced immediately, showcasing the swiftness of the changing law, but up until that point it was still illegal. The shift in law was sudden, however it took much longer for society’s moral opinion to change, as can be seen by the fact that same- sex marriage was legalised in The Marriage (Same Sex Couples) Act 2013, which even still didn’t come into force until 2014. This therefore discredits the argument that law and morality coincide, since it depicts that instead of law being based on moral principles, the law itself may be trying to facilitate a potentially premature change in society. Homosexuality is still not widely accepted, despite the legal progression. For instance, the case of Bull v Hall , which arose only a year before the Marriage Act, consisted of guesthouse owners being found as discriminatory for refusing to provide a male couple a room for their stay. Despite this, the legalisation of homosexuality at such an early stage, provided the time for society to adapt and now establish legal equality for a larger range of people, making society more inclusive and over time, more accepting. It is evident that by laying groundwork for societal moral development by means of the law, there is no room for the relationship between law and morality to be a mere coincidence.
Furthermore, although there are long standing moral principles surrounding the idea of ‘loving your neighbour’, under UK law there is no general duty to help someone who is in trouble (most commonly referred to as the Good Samaritan Law), unlike in France for example, the presence of such law being a clear illustration of the law being established upon moral obligation to society. However, in the UK, omissions are accepted in some circumstances, such as when there is a special relationship or if one is under a contractual duty to perform in a certain way. Nevertheless, although the UK lacks the general duty to act when someone is in need, that is not to say that morality does not play a part in the lack of such law. One may consider that it is relatively universally agreed upon, that a person of good ethics would help someone out of their own accord, rather than simply doing it to avoid legal liability. It can therefore be inferred that the actual lack of such law incites free will and moral autonomy.
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