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Published : June 15, 2015 | Author : Rajyashri B
Category : Law - lawyers & legal Profession | Total Views : 5587 | Rating :

Rajyashri B
Associate Advocate, SNG & Partners

Law and Morality

In general view morality is the quality of being in accord with standards of right or wrong conduct. Morality, speaks of a system of behavior in regards to standards of right or wrong. The word carries the concepts of: (1) moral standards, with regard to behavior; (2) moral responsibility, referring to our conscience; and (3) a moral identity, or one who is capable of right or wrong action. Morality has become a complicated issue in the multi-cultural world we live in today. Timeless wisdom explains that there cannot be a complete law unless there lays the effect and inclusion of morality. My Project explores what is Moore’s concept of morality and how he explains its affects on our behavior, our conscience, our society, and our ultimate destiny.

Law and morality are too vague to understand. It must be added here that the notions of law and justice can't be captured and presented before us within a few sentences. These notions are too vast that even words are not sufficient to define them. Many jurists from the ancient Greek period to the modern and even the post-modern era have attempted numerously to define these concepts, but have failed. One of the reasons may be that the roots of these concepts lie somewhere within the human psyche, which is extremely random and versatile. Well it is required to describe the tenets of the two main schools of law.

Legal Positivism:-
The start of the nineteenth century may be regarded as the beginning of the positivist movement. The term positivism has many meanings, which are tabulated by Professor H.L.A. Hart as follows:
1. Laws are commands. This meaning is associated with the two founders of British Positivism, Bentham and his disciple John Austin,

2. The analysis of legal concepts is:
* worth pursuing
* distinct from sociological and historical inquiries,
* distinct from critical evaluation,

3. Decisions can be deduced logically from the predetermined rules without recourse to social aims, policy and morality,

4. Moral judgments cannot be established or defended by rational argument, evidence or proof,

5. The law as it is actually laid down, positum, has to be kept separate from the law that ought to be.
The positive law school has its main pillars as, Jermy Bentham, John Austin, Prof. H.L.A. Hart, Kelson. Actually positivism has grown out of the ashes of renascence in Europe. It is hence a liberal thought or a liberal ideology whose main aim is to bring positive reforms in the society through the instrument of state and not through the clergy. What positivism represents is the intellectual reaction against naturalism and a love of order and precision.

After having a brief idea of legal positivism, we should move to the Natural Law school.
Natural Law School:-
The term "natural law", like positivism, has been variously applied by different people at different times.
1. Ideas which guide legal development and administration.
2. A basic moral quality in law which prevents a total separation of the "is" from the "ought".
3. The method of discovering perfect law.
4. The content of perfect law deducible by reason.
5. The conditions sine quibus non for the existence of law4.

The question of how law is related to morality is best approached through judicial obligation that obligates judges in their role as judges, and then to further consider how ought judges to use morality in their decision of disputed law cases? How should morality properly enter into judicial decisions.

Idea to understand the judicial reasoning is by considering the “obvious law”. This can be understood with the help of certain examples, which he cites. When statutes award custody of minor children to a parent it is most likely in the best interest of the child, award citizenship only to those applicants who possess good moral character, deport those who are convicted of crimes of moral turpitude. This shows that judges in legal systems with obvious law like ours have to make some kind of moral decisions in order to apply such laws to the cases before them.

With the force of the state behind them, they coerce people into giving up their money, their liberty and their lives. Such coercion requires justification, which is of course the (obvious) law, which lays down certain doctrines of legislative supremacy and the ban on common law crimes. Some political ideals such as democracy, the separation of powers, and the rule of law make those doctrines a source of judicial obligation.

Natural law school dominated till the nineteenth century, beginning from the ancient Greek period. Natural law school discussed what law is etc., but never discussed law as an empirical formula, and never made strict separation between what law is and what law ought to be. Natural law thinkers while talking of law talk about law made by man's mind consciously, as opposed to law made as a result of morality lacking conscious element. Natural law thinking is one form or other is pervasive and is encountered in various contexts. Values, for instance, as pointed out, play an indispensable part in the development and day to day administration of law. In a different sphere natural law theory has tried to meet the paramount needs of successive ages through history, and an account has been given of the ways in which it supported power or freedom from power according to the social need of the time. Further natural law school offers a indirect help with two contemporary problems, namely, the abuse of power and the abuse of liberty.

Positivism on the other hand, by seeking to insulate legal theory from such considerations refuses to give battle where battle is needed perhaps wisely, perhaps to its own discredit, depending on the point of view. The Natural law thinkers have always considered the principles of morality as higher law and they look at man made law contempt and ridicule. Law and morality have always been at loggerheads with each other. The positivists led by Bentham and Austin deliberately keep justice and morality out of the purview of legal system. Their formalistic attitude is concerned with law as it is and not law as it ought to be. They emphasize law from the point of source and implementation. So, the natural law system depends upon the standards and yardsticks of morality to formulate any law, whereas the positivist system of law depends upon the conscious and deliberate attempt of law making.

Morality and our Behaviour

We are constantly talking about law and morality, so let us know the meaning of these two concepts. Law is continuously evolving norm or rather we should say that it is a part of a normative system whose work is to regulate certain norms in society. It is dynamic and is never at any point of time static. Law has to change from time to time as according to the ever changing demands of society. Law doesn't exist for its own
state. It has to achieve certain objectives, which may be short term or long term. Law aims to create an order in society (in all units of society). Law tries to create a working environment which is equally just to all sections of society. On the other hand, there is the vague concept of morality which is a sought of norm or a part of normative system. Morals are actually certain yardstick standards in our society which work as prescriptions to human behavior. The starting of preaching of morals start from the very basic unit of our society i.e. family. As in a Hindu family, young people touch the feet of elders to wish them. There is no logic behind these morals but still these morals do prevail in our society. This is fully ones own private practice in which nowhere law has to intervene. A morality can be one which throws a negative impact on society and the other which can benefit the society. Law or morality both are normative systems of our society as both are normative and institutionalized by nature. The only difference between law and morality is that law is coercive by nature but morality is not. Law is enforced by coercion and its constant application on a society leads to the internalization of law in human soul. Initially, law gives only an external behavior or an overt effect, but with the pace of time the forceful obedience of laws takes the shape of an internalized realization of habitual obedience. For example, the road traffic laws, when are applied on a society get internalized in a citizen's behavior after certain time7.

Law has got a coercive backing which works through institutions. So, idea of sanction, that, one will be punished by god as is being propagated by religion and the so called contractors of morality from years, has become very loose. That is the reason, why religion and morality has become loose and ineffective. So, constitutionalism has taken a front foot. I prove this point of mine by the following example of our contemporary society. Today in our present society, morality and religion are facing challenges put forward by technology, fast urban life, secularism, equality before law, democracy, and constitutionalism.

Since today people are educated in a liberal atmosphere, we are able to think on our own, we know the difference between right and wrong, truth and false. So, as in earlier society it was possible to create an easy fear factor in the minds of people on the name of god. This clash is bound to take place as people are now not dominated by anybodies whims and fancies or any religious or moral sanctions, but they are capable of taking their own free decisions. When one tries to analyze the distinction between law and morality, one feels vaguely that somehow law is connected with reason and conscience. Therefore law has the characteristic of binding whereas morality has the characteristic of being bound.

The great jurist asserts that force is necessary to control human behaviour because humanity as a whole is not governed by reason. If everyone thinks reasonably and acts rationally there is no need of binding one's behaviour. But the experiences in history do not provide clear evidence of such rational behaviour and so the idea of law has developed on the assumption that it is necessary to compel the behaviour of individuals in a particular direction to achieve certain specific ends. Justice and conscience seem to be personal and individualistic. Hence there cannot be system attached within any order. Therefore one recognizes, at any point in the history of any social organization, a legal system but one fails to locate such a system of justice or morality.

Conceptualizing what judges ought to do as judges becomes important. This can be done by finding that whether judges while performing their duties are following the law. Moore here discusses, the ideas of legal positivists. They admit that judges should look to such incorporated moral standards but deny that such standards are part of the law, which raises an analogy. Likewise for cases where the obvious law is indeterminate a positivist advises judges to look to morality because there is no law in such cases. When the judge makes some law by his decision, the law that is made may be morally correct, but it will still be law only because the judge laid it down and not because it is morally correct. On the other hand, the natural lawyer denies both, that the obvious law is all the law, and that the “obvious law” is in fact always law. According to this school of thought there should inclusion of morality in law. We thus face a conceptual choice that is not obvious.

Morality, describes the principles that govern our behavior. Without these principles in place, societies cannot survive for long. In today's world, morality is frequently thought of as belonging to a particular religious point of view, but by definition, we see that this is not the case. Everyone adheres to a moral doctrine of some kind to ensure fair play and harmony between individuals; (2) to help make us good people in order to have a good society; and (3) to keep us in a good relationship with the power that created us. Unless we live in a dictatorial society, we are free to choose our own personal moral code. The question is, what happens when our choices conflict with each other? If we do not have an absolute standard of truth, chaos and conflict will result as we are all left to our own devices and desires.

Morality and Law

There seems to be no distinction between law and morality. Greek writers, he quotes, suggest that the good person is the one who will do what is lawful. It is the lawgivers, in these early societies, who determine what is right and wrong. What should be legal roughly corresponds to what is really right or just, that is, what we would call morally right. We find, for instance, the distinction between what is legally or conventionally right and what is naturally or morally right. Sometimes this is expressed as an opposition between what the gods command (i.e., what is morally right) and what the political authorities command (i.e., what is legally right). The knowledge of what is just or moral, and the ability to distinguish true justice or morality from what is merely apparently just depends on the full development and use of human reason.

Moving forward from the relation of morality to the law that binds judges, to the relation of morality to the content of what ought to be law in a liberal, democratic state. He thus, moves from the judicial role to the legislative role. Legislators no less than judges need a theory of their role, a theory about what are and are not proper ends to be sought via legislation. A legislator should simply represent accurately the views of his or her constituents, whatever those views might be with respect to the new law proposed to be created. But where do we find a theory of proper legislative ends? The obvious answer for Moore, is, “morality.” Where there is no obvious law available to a judge morality is referred on the subject.

Mill thought that one of the aims forbidden to legislators in a liberal democracy was the aim to legislate morality. Only legislation aimed at preventing behavior harmful to others was proper; legislation aimed at promoting morality was as much condemned, as was paternalistically motivated legislation. E.g.: the state should not coerce or encourage any moral conception of the good life; or the state should refrain from legislation on moral matters where there is no overlapping consensus; or the state should only provide the fair framework in which differing moral visions can compete; etc.

The critique of Mill and these Post-Millian liberalisms is very simple. If something is morally good, that gives each of us a reason to promote its attainment. That is as true of legislators as of anyone else. If laws can be made that promote justice, there is good reason to make such laws. How liberal they are depends on the structure of morality they would enact into law. If that morality contains such items as a general right to liberty, then a moralist legislator should respect that part of morality too. Mill’s harm principle is not a limit on proper legislative aim rather it is a theory of when behavior is morally wrong. Most harming of others without their consent is morally wrong, and most seriously immoral wrongs consist of causing such harms. According to Moore, Austin had it right, when he held that we should legislate morality. The law we ought to have should be as near to morally correct as we can make it. But Moore can be criticized here, when he supports legislation of morality, which is practically impossible.

How Does Morality Relate To The Law We Ought To Have?

Most probably, because justice and conscienceless are experiences and intuitions of the mind. We cannot think of an external system to regulate the activities of the mind. On the contrary, human behaviour, in its rudimentary nature is physical and superficial. And so a legal system can find a methodology of directing it or guiding it or even governing it. therefore a legal system having rules and regulations with regard to trade, commerce, finance and employment will be greatly successful because the writer thinks, there are the areas in which human behaviour is physically; desirable. In these areas an external force, law is such an external force, a system in more comprehensively physical. Moreover the external element of deciding, adjudication, administration or even policing is possible. On he other hand, the definition of morality or the concept of morality changes from person to person. May be what is morality for me, that is not moral for you. For e.g. the viewing of porn sites in the scenario of the society existing in Indian subcontinent is not considered to be a moral act, but the viewing of the same porn site is considered to be a legible and conveniently acceptable in European and American societies.

If we look at the form and content of law, we find that a legal norm may be common with that of religious and moral norm. For example, all religious and moral norms say not to kill or not to steel, and it is the same here in law. So, we have almost the same content between law and morality. Then the question arises that, if it is so, then what is the difference between law and morality? The answer is that, the legal system is distinct from religion and morality in the form and not in the content.

Law is influenced from both religion and morality and hence their takes place a sought of interaction between the legal system and the moral and religious faculty of our society. In a traditional society laws have never had a very dominating character, but religion and morality had always had a very predominant role.
But in a modern society life changes very fast, hence morality and religion are under a great pressure.
Hence, law is the only.

alternative to human development. In a multi religious, liberal and multi communitarian society, law can only work in a impartial and efficient manner. The greatest examples are the world's biggest democracies. Being more specific and illustrative, I would like to quote the example of India, U.S.A., England, and France etc. which have successfully established a deliberate and conscious mode of law making process through constitutionalism and this is done out of an age old monarchical and religious morality. In Russia, before the 1917 Bolshevik Revolution, the morality among general masses was that the Czar is having divine powers to rule over them. Laws were used to enforce such moral standards, but after long period of exploitation mass revolution broke up in 1917 and finally the negative effects of morality were overthrown and a constitutional setup was established. The same happened during French revolution. In India, in the ancient Vedic period, the common morality was that society was unequal and hence caste system and untouchability grew. This moral standard was given the institutional shape of law. But, after independence in 1947 we have stopped the legal enforcement of such illegitimate morals.

Is law responsible for the enforcement of religion and morality?

Pornography, prostitution, homosexuality etc. are areas of ones own consciousness and hence it is an area of conflict which is still continuing. So, does law has got the right to intervene with religious and moral feelings among people? For example, there is a moral notion in our Indian society that love marriages or inter caste marriages are not feasible enough and hence should not take place. Consider the claim that homosexuality is immoral. I strongly disagree. Now what In a contest between a majority of state legislators and me and those who agree with me, what privileges the legislature's judgment of morality. In what way are they experts How does being elected to the legislature qualify them to make these judgments. Do they hold hearings on the morality of homosexuality and offer reasons for their conclusions. Or do they just press a button and register their vote. Most importantly, how can we assess the merits of their claim. If we cannot, then in reality they can prohibit whatever they want (and for whatever reason they want). No matter how objective morality may be, any such doctrine of constitutional law is recipe for tyranny. Take the issue of living relationships, which carries a moral ban on it. I don't understand that if two major individuals with their exercise of free consent decide to live together, where the question of infringement of any rational standards arises. This shows that the moral standards are never rational by effect13.

Now I ask the question that, should a law be made to enforce such moral standards. Is such a law not repugnant with the constitutional principles of liberty and freedom.

The legal positivists like, Bentham, Austin, Kelson have always said that law must never be used as an instrument of enforcement of any moral standards. Therefore, as one cannot see the mind and conscience, elements of morality become weak and not determinable. But law is convenient, the present writer asserts again that it is only convenient; it has withstood the test of time. At any particular time, for any situation, law becomes a technique to establish a certain expected social behaviour. Morals may be for enlightenment and would facilitate individual peruses. Therefore it is thought and envisaged by the present writer, as compulsions and aspirations influence life, a legal system should consist of principles of convenience and feasibility whereas morality should be left to individual freedom and practice. Legal enforcement of these moralities which causes negative impact in the growth of our society must never be determined. Recently a pastor informed his congregation that Christians can no longer seek to impose their moral values on a society which does not accept Christianity. The second part of the statement, at least, is quite wrong. While Church membership and attendance has sharply decreased, the Roy Morgan Study of the Values of the Australian People demonstrates that 80% believe in God.

Should Christians seek to impose their moral values on law and society. There are some who are forcibly and aggressively arguing that Christian values must be expelled from law, society and politics. Gareth Evans (now Senator Evans) is reported in The Sydney Morning Herald, May 7th, 1976, as stating at a convention of the South Australian Council for Civil Liberties that children wanted a right to sexual freedom and education and "protection from the influence of Christianity.

The same article referred to Mr Richard Neville (of Oz fame) as stating that "promiscuity is one beneficial way of breaking up the family structure, which has led children to become the property of their parents. Law cannot be an instrument of expression of moral standards, rather law has to be independent of all sought of moral dogmas except certain areas in which law is dominated by morality. e.g. Legal areas like the business laws, cyber laws, tax laws, company laws, trade laws, etc are exclusively a legal treatise and morality has got nothing to do with that of law in such areas. Take the historical example of SITA whose fundamental and moral instinct has now changed it into PITA.

But on the other hand we can never deny that a major content of law derives its content from that of morality. Like that criminal law is a product of moral notions. For example, all religious and moral norms say not to kill or not to steel, and it is the same here in law. So, we have almost the same content between law and morality. The positive thinkers have thought in a narrow interpretation of law because they overlooked religious and moral values.

The actual conclusive situation is that religion, morality or law all have the work of controlling the behaviour of individuals of our society, hence we must not exclude the importance of morality in our society. In the case of International Humanitarian Laws, certain moral standards are also recognized as a part of law. So, the absolute separation of law and morality is not possible in these areas where morality produces a positive effect in society which is prospective in nature.

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 really mean this - why would we outlaw rape and murder if they weren't wrong? Instead, I suppose they mean that people shouldn't impose their personal moral views (especially regarding sexuality) upon others. I would agree with that sentiment, though my reason is precisely because I think legislation should be morally informed, and the "moral views" in question are entirely misled.

As a quick aside: it is unfortunate that the word "morality" has become associated with conservative values, because the obvious invalidity of those values to many people tarnishes their attitude towards morality as a whole. And that is a damn shame. When conservative groups advocate bigotry masquerading as "family values", we need to recognise the injustice of this, and instead stand up for what is right. But I digress - this isn't intended as a post about how liberals need to reclaim the moral high ground.

So we accept that there is a connection between law and morality, but what sort of connection is it. Their domains are clearly not entirely identical - for example, it may be wrong to lie to your parents, but it certainly is no business of the law. Perhaps the best way to explain this is to acknowledge that the law is an extremely blunt tool, and so will be of no help when dealing with minor or subtle moral issues.

But even if some morality is outside the scope of Law, could Law's domain be a subset of the Moral? That is, should we only ever outlaw immoral acts, and never morally permissible ones?
I would like to say 'yes', as it does seem like a good principle. But I can't, because it contradicts my position on some other issues. That is, I think morality is purely 'other-regarding' in nature, and merely harming yourself (e.g. smoking in private) is not immoral. On the other hand, I previously suggested that state paternalism could be acceptable.

To approach this topic from a slightly different angle now, the intriguing suggestion that 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 on the 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 socialisation whereby society instills in its members the desire certain ways.

The other method of influence is to alter people's beliefs about how best to fulfil 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. It achieves this through the threat of punishment, i.e. by instilling in citizens the belief that breaking the law is not in their own best interests - they could get caught and sent to jail, which would surely thwart many of their other desires.

Should Real Or Conventional Morality Be Part Of The Law?

We further discuss here a meta-ethical issue: that whether “is and ought” which is to be a part of the law, real or conventional morality? Is it so that the moral beliefs shared by citizens are the mores of our society? Or is it what some call “critical morality,” and what Moore calls real (or the correct) morality? The second issue is a substantively ethical question: is that morality utilitarian including justice as something to be maximized?
Moore examines the first issue here and the second in the succeeding section. He assumes that meta-ethical relativism is false. The argument for use of conventional moral beliefs that interests him proceeds not from necessity but from desirability. The idea is that it is right to look to popular, generally accepted moral beliefs when questions of morality arise in the law. That at least is the shape of the conclusion.
1. Supposed wisdom of many

Everyone has quite a few firmly held moral beliefs. Is it likely that they can render those beliefs doubtful because many others disagree with them? If truth in morality is really so hard to achieve, why defer to others, who surely are as muddled as are you? There is another argument for use of conventional morality in law, but it is distinct and merits separate mention. This is the idea that perhaps, conventional morals are a good heuristic to true morality. Whether a particular murderer really deserves to die, for example. In this case we use conventional morality, not because it is more likely true, but because thinking about conventional morality gets us to our own best views of what true morality requires.

Somewhat more plausible, perhaps, is deference based, not on the fact that conventional moral beliefs are correct, but on the fact that they are conventional, i.e., they are what most people think. Social peace and harmony is worth the price of living under incorrect moral beliefs. In the Law We Ought to Have Supposed these democratic and “peace-at-any-cost” ideals, which convince one to use conventional morals whenever morality enters the law. This conventionalist legal moralism would mean that there are no principled limits to what may be legislated by a majority. Lord Devlin showed us this in his debate with Herbert Hart in the 1960’s. Seeing this makes it easy to see why Mill thought he should be arguing against legal moralism as much as against legal paternalism. Mill took this to be an example of legal moralism doing its pernicious work. Yet what if Mill thought that polygamy was deeply immoral, perhaps like female circumcision in certain African tribes. Wouldn’t his outrage have been eliminated – because then, the Americans would have been legislating true morality and not (a largely incorrect) conventional morality about sex. Mill surely thought (as also Moore) that polygamy was no big deal morally speaking, and therefore that using the coercive force of the law to stamp it out was unjustified. In this case, Mill’s real target was the use of conventional morals as the basis of legislation, not the use of morals as such. ___________________________________________________________________________

2. In the Law We Have
Now turn to morality in the law we have, the law that obligates judges in their roles as judges. As we saw, there are few ways by which morality enters into the law we have, and let us consider how it looks if we plug conventional morality in them.

The explicit incorporation of moral standards into legal standards.

Consider the constitutional case first. As noted earlier, the U.S. Constitution explicitly requires moral judgments by judges as they exercise “the great power” of judicial review. Despite the rhetoric of many Supreme Court opinions – that judges should look to “the canons of decency and fairness which express the notions of justice of English-speaking peoples” (Frankfurter), “the canons of decency that mark the progress of a maturing society” (Earl Warren), “the values, so rooted in the traditions and conscience of our people as to be ranked as fundamental” (Cardozo), “the narrowest social tradition” (Scalia), etc. – using conventional morality in exercising the power of judicial review makes no sense. For remember, what is being reviewed is the product of consensus moral beliefs, a statute enacted by a representative legislature. It makes little sense for a court to use that same conventional morality to review an expression of it by a more representative body.

This general point is reinforced by a point specific to the rights-protecting clauses of the U.S. Constitution. Such rights become important when their support does not command a majority so that they will not win out in the political process. The idea that there are such minority rights against majority views again makes little sense if these rights are given conventional i.e., majoritarian interpretations. A right good against the majority only when the majority agrees with it is not much of a right. These arguments are unavailable when it is not constitutional law that incorporates moral standards, but is common law or statutory law. One argument common to all three kinds of law is based in language use. On the theory of meaning Moore have long thought correct, he says, when we speak we ordinarily refer to things whose nature guides our meaning. If I request that you “prospect for gold,” I expect you to bring me stuff that is really gold; “fool’s gold,” or other stuff commonly thought to be gold, will not be what is meant. The same is true of moral usages. If legislatures direct judges to find wherein lies the best interest of a child, or whether a petitioner for citizenship does or does not possess good moral character, they like all other speakers should be construed to mean what is really best or good, not what most people think is best or good19.

It is possible of course, for prior judges, legislatures, or constitutional conventions to mean something else. It is possible they meant for judges to look to popular moral beliefs. It is even possible they meant for judges to look to their (the law-givers’) moral beliefs on these matters, whether such beliefs were conventionally accepted or not. But absent some special context making the existence of these special interpretive intents plausible, surely law-givers should be seen like other language users. Judges are to ascertain where the child will really be better off, not guess at what most people would think on the matter.

The justification of the obvious law by the thoughtful judge

As we have seen, the thoughtful judge justifies the use of obvious law like statutes by political ideals such as democracy and the rule of the law. It is this exercise that justifies judges in using the coercive power of the state to order the litigants before them to give up their property, their liberty, their children, and their lives. It is inconceivable to Moore that judges could ever feel satisfied in this justificatory task, if they repaired only to conventionally accepted versions of democracy, the rule of law, etc. For notice how personal is this question: “what justifies me in doing what I am about to do?” That others think it fine cannot answer for me. “Do I think it’s fine?” is the relevant question, and for that question only ideals that I accept as true can fit the bill.

Filling in the indeterminacies in the law in hard cases

In cases of conflicting legal standards, cases of first impression, and cases of penumbral application of legal standards – Fuller’s “hard cases” – conventional morals has perhaps its most plausible use. The fact that these “legislators” i.e., judges in hard cases, are not subject to the discipline of frequent, regular election might incline one away from the conception for which Moore had earlier argued. As many legal philosophers have noted that the views of judges in hard cases doesn’t reflect the continuity judges rightly sense, between what they do in hard cases and what they do in easier ones. On the “molecular legislation” view, judges do two quite different things: in easy cases they apply the law, and in hard cases they make new law. In hard cases there is an extension of what went before, not the fresh beginning suggested by the phrase, “judicial legislation.” Judges owe an obligation to extend the past in a way legislators do not.

Therefore, conventional morality should not be used in doing the interpretation required in hard cases. But how are we to conceive of “the past” to which judges owe fidelity in hard cases? Should we see the obvious law that is to be extended in hard cases as:
(1) a reflection of the community’s moral beliefs?
(2) an imposition of the law-givers’ moral beliefs at the time that law was laid down? Or
(3) a reflection of some underlying ideal of justice, partially and somewhat inaccurately expressed by the obvious law?
If it is the first, then judges might well seek to extend that past consensus by bringing it up to date with the present consensus.
If it is the second, then judges might well seek to extend that past imposition in light of those lawgivers own views of what they did.
If it is the third, then judges should seek to extend that attempt to capture justice with their own best insights as to what justice requires.

Which of these views to adopt is not be settled by history. It should not matter much how law-givers of the past viewed what they were doing. The question for judges is a more straight forwarding normative one. In Moore’s vicarious judging, judges should see law makers of the past as striving for justice, and should thus join them in the task of achieving it.

So by this view, law and morality are just two sides of the same coin -
namely, that of socialisation. Morality seeks to influence our behaviour by way of our desires, whereas law is the 'back-up' option, and targets our beliefs.

This is true in the United States as well, and not only in how our legally mandated school systems and our criminal laws contribute to the shaping, including the moral training, of citizens. Yet the typical opinions in a contemporary liberal democracy are likely to be:
(1) that morality cannot be legislated; and
(2) that even if morality could be legislated, it should not be...that to do so is somehow improper, even tyrannical, either because there is no morality objective enough to justify legal enforcement or because one's autonomy and individuality would be violated by attempts to legislate morality or perhaps even because one really has no autonomy that can respond to any external directive.

Such concerns are not evident in the Ethics: law is needed both to help habituate citizens to virtuous actions and to help maintain the salutary habits they acquire. These needs can be recognized even by those who are aware that the virtues generally fostered by law are not the highest. The opinions one may have about the good, the true, and the beautiful are a secondary concern of most laws. Still, it is well to keep in mind Aristotle's counsel that one who is "to listen intelligently to lectures about what is noble and just must have been brought up in good habits." For proper habituation, laws can be most useful, if not indispensable. Although intellectuals of liberal democratic sympathies may not believe that morality depends on law, it is almost impossible for any regime that takes itself, and is to be taken, seriously not to shape its citizens with respect to morality. To deny that legislation of morality can or should take place does not eliminate such legislation; it merely conceals it, perhaps distorts it, and otherwise confuses and misleads rulers and ruled alike. (Here, as in physics, much that Aristotle noticed and relied upon is tacitly relied upon by us as well, but relied upon haphazardly because it is not properly noticed.)

It would be useful, therefore, to indicate how pervasive Aristotle understands the law to be with respect to morality in a community. When we see what law can mean, and how it works, we may better appreciate what the law does in the service of morality, even in such a liberal democracy as ours. To speak of the influence of the law is, we shall see, to speak of the many ways that the community forms the citizen and guides the human being.

For us, however, the term law does tend to be limited to what "government" does, to the statutes and decrees that governments issue. We have noticed the most conspicuous way, drawn upon at the end of the Ethics, in which morality is dependent on law. It should be added here that not only is morality somewhat dependent on law, but also that the law itself is to a considerable extent dependent on morality. A properly trained, morally alert citizen-body tends to be appalled by the lawbreaker. But does not this response (which can help keep many would-be lawbreakers in line) rest, in turn, upon the presumption that the law is likely to be, and in fact usually appears to be, itself moral and in the service of the common good. There is a critical reciprocity between law and morality. Reciprocity, we recall from the Ethics, can be vital to justice as a particular virtue. The exercise of most virtues requires a stable community, one in which one's body and life as well as property are fairly secure...and, of course, the law is essential here.

To become or to remain a civilized human being usually requires a sound community...that is, one in which the law plays a considerable part. Is there not an intimate relation, at home and abroad, between justice and peace? To recognize this is not to deny that friendship also seems to hold communities together nor that legislators may care more for it than for justice. Even so, is not proper habituation needed for reliable friendships, as well as for justice. Who but the legislator, who must always be distinguished from the tyrant, can insure such habituation.

If law is not based on morality, on what can it be based - Christian morality, derived from the Ten Commandments, underlies the common law. Criminal law is based on the Ten Commandments, which also underlie the law of contract and the law of civil wrongs. The common law inherited by the British Colonies on the Australian continent and by the Commonwealth established in 1901, was developed over many centuries by British judges, who reacted to particular human situations on the basis of Christian values. In an essay entitled "morals and the Criminal Law,

Lord Devlin wrote:-
"Society means a community of ideas; without shared ideas on politics morals and ethics, no society can exist. Each one of us has ideas about what is good and what is evil; they cannot be kept private from the society in which we live. If men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if, having based it on common agreement, the agreement goes, the society will disintegrate.

"For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed. The members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price ".

Cases and Illustration
Airedale NHS Trust v Bland [1993] HL:
[Law and morality - medical treatment - whether withdrawal of artificial feeding lawful - patient in persistent vegetative state - maintenance of life by artificial feeding]
Tony Bland seriously injured in the Hillsborough disaster, was being kept alive only by extensive medical care (not a life-support machine). He had survived for three years in persistent vegetative state (PVS). He continued to breathe normally, but was kept alive only by being fed through tubes. He had no chance of recovery; his doctors (with the support of his family) sought a declaration from the court that it would be lawful for them to discontinue treatment so that he might die peacefully.

Held: Treatment could properly be withdrawn in such circumstances, because the best interests of the patient did not involve him being kept alive at all costs.
In this case feeding him was treatment and that treatment would not cure him and therefore was not in his best interests.
It was lawful for D's doctors to stop feeding him artificially.

See also Frenchay Healthcare National Health Service Trust v S [1994]. Similar issues can arise in respect of the very elderly or in respect of babies born with very severe mental or physical handicaps, especially where major (and possibly repeated) surgery would be needed to keep them alive see Re J [1991].
It was lawful for D's doctors to stop feeding him artificially. The court had no option but to make a decision one way or the other.

Attorney General’s Ref (No 6 of 1980) CA
[Law and morality - agreement to fight in public place - not in public interest - does not affect properly conduct sport - lawful chastisement - reasonable surgical interference]
D aged 18 and the victim, aged 17, agreed to fight.

Held: Not in the public interest for people to cause or try to cause each other actual bodily harm.
Per curiam. Properly conducted games and sports, etc. OK
Acquitted at trial.

Baker v Hopkins [1959] CA
[Law and morality - courts attitude to resucers - tort law]
DD, a firm of contractors who had been employed to clean out a well.
Fumes from a petrol engine 30 feet below ground level gave of dangerous fumes.
Employees went down the well, and were overcome by the fumes. C were the executors of the estate of a doctor who attempted to rescue the employees, but in so doing was himself overcome by the fumes. All three men died.
Held: D were liable for all the deaths including the doctor.
It was a natural and probable consequence of the defendants' negligence towards the employees that someone would attempt to rescue them; the defences of novus actus interveniens and volenti non fit injuria could not be successfully relied upon against the doctor's dependants.

Morris L.J.:
"If... A by negligence places B in peril in such circumstances that it is a foreseeable result that someone will try to rescue B and if C does so try - ought C in any appropriate sense to be described as a ' volunteer'? In my judgment the answer is No...If C, actuated by an impulsive desire to save life, acts bravely and promptly and subjugates any timorous over-concern for his own well-being or comfort, I cannot think that it would be either rational or seemly to say that he freely and voluntarily agreed to incur the risks of the situation which had been created by A's negligence."
Haynes v Harwood [1935] KB applied. C won

Bolam v Friern Hospital [1957] QBD:
[Law and morality - defendant doctor may not be liable provided he acted in accordance with general practice]
D, doctor failed to give a muscle relaxant; Complainant suffered a fracture whilst he was undergoing electro-convulsive therapy. Differences of practice.
Held: Not negligent if he had acted in accordance with practice
Complainant’s claim failed.

Brown, R v (1993) HL:
[ABH - harm caused - consent not relevant]
D1-5 engaged in various homosexual sadomasochistic practises in private.
They used genital torture and inflicted injuries, willingly and enthusiastically participating in the commission of acts of violence against each other for the sexual pleasure it engendered in the giving and receiving of pain. None requiring medical treatment.

Held: The courts will interfere, liability did occur, but not if it were a lawful act. Public policy, fear of proselytisation, corruption, cult of violence and potential for serious harm.
Absence of consent is not an element of assault occasioning actual bodily harm or unlawful wounding.
Consent is a defence to the infliction of bodily harm in the course of some lawful activity, but ought not to be extended to sadomasochistic encounters.
Lord Mustill, dissenting,'these consensual private acts are [not] offences against the existing law of violence',
Lord Slynn found no compelling reasons for creating criminal liability.
Definition of assault:
"At common law, an assault is an act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence and a battery is an act by which a person intentionally or recklessly inflicts personal violence upon another. However, the term 'assault,' is now, in both ordinary legal usage and in statutes, regularly used to cover both assault and battery."
All Guilty of ABH and three of wounding

Central London Property v High Trees House [1956] KBD Denning J:
[Law and morality - the courts enforce a promise]
D leased a block of flats in London from C in 1937. When war broke out, many flats were left empty as people were evacuated to escape bombings. C agreed to reduce the rent by half if D stayed. D paid the reduced rent until the end of the war, and C then claimed for the "arrears".
Held: Denning J "discovered" the equitable doctrine of promissory estoppel, and said that although C were once again entitled to the rent originally agreed after the war ended, they could not go back on their promise to accept a reduced rent for the earlier years.
When a party to a contract makes a promise to the other, which he knows will be acted on, that he will not enforce his strict legal rights; the equitable principle of promissory estoppel makes that promise binding on him until such time as he gives reasonable notice of his intention to resume those rights.

Denning J (obiter dicta) said that had Central London sued for the arrears for the years 1940-45, it would have failed. It would have been estopped from going back on its promise [as set out in the 1940 agreement] to accept a reduction in rental, even though that promise had not been supported by any consideration from High Trees because to hold otherwise would have been unjust

Chadwick v British Railways Board [1967] QBD:
[Law and morality - courts approach to rescuers]
D the railway board responsible for a major train accident caused by their negligence. C the wife of a volunteer who took part in rescue work suffered nervous shock and became psychoneurotic as a result of his experiences.
Held: Damages were recoverable for nervous shock even where the shock was not caused by fear for oneself or the safety of one's children and in the circumstances injury by shock was foreseeable.
D ought to have foreseen the existence of a rescuer and accordingly owed him a duty. C won

Clark v MacLennan [1983]:
[Law and morality - defendant doctor may not be liable provided he acted in accordance with general practice]
D, doctor operated to relieve stress incontinence after birth one month after the birth normal practice three months.

Held: D's departure from the general practice had not been justified. Complainant’s claim succeeded.

Cox, R v (1992) Winchester Crown Court, Ognall J:
Law and morality - doctors who kill may be murderers - double effect]
D, a GP injected a lethal dose of potassium chloride into his patient V who shortly afterwards she died comparatively peacefully. V Lillian Boyes was an elderly lady, terminally ill and in constant severe pain. With the knowledge and approval of her family, she asked D to end her suffering by hastening her death.
Held: D could not be charged with murder, because B had been cremated before any suspicion arose and the cause of her death could not conclusively be proved, but the jury found him guilty of attempted murder and the judge passed a suspended prison sentence.
Guilty of attempted murder given a 12 month suspended prison sentence

Dudley & Stephens, R v (1884) CCR:
[Law and morality - the law knows no defence of necessity]
Three sailors and a cabin boy were shipwrecked and were adrift in an open boat 1600 miles from land. After they had been eight days without food, and six without water, DD decided that their only chance of survival was to kill the cabin boy and eat him, and this they did. Four days later they were picked up by a passing ship, and on returning to England were convicted of murder.
Held: Necessity can never be a defence to murder. Their sentence of death was later commuted to six months' imprisonment.

F v West Berkshire Health Authority [1990] HL:
[Law and morality - sterilisation of mentally handicapped person - voluntary in-patient at mental health hospital - inability of patient to consent - court's jurisdiction to give or withhold consent to operation]
D, health authority decided to have C (36 yrs) sterilised, because of her mental capacity.
Held: It was in her best interests to be sterilised.
Sterilisation allowed.

Fairchild v Glenhaven [2002] HL:
[Law and morality - tort - negligence - causation – breach of duty causing or materially contributing to damage – whether C able to recover against 'either or both' employers]
Three conjoined appeals against an employer for damages for negligent exposure to asbestos dust which had caused a mesothelioma, but C could not show during which employment he had suffered the offending dust.

Held: C could succeed against either or both employers, and it was up to them to sort out who would pay what proportion of the award.
• C had been employed by more than one employer and,
• D had a duty of care to prevent dust inhalation and,
• D had been in breach of that duty and,
• C had contracted mesothelioma, and
• any other cause of mesothelioma could be ruled out but,
• C could not (because of the limits of human science) prove during which employment he had inhaled the dust....
...C was entitled to recover against both his employers.
That conclusion was consistent with principle, and with authority, properly understood.
Where the conditions were satisfied, it was just and in accordance with common sense to treat the conduct of both employers in exposing the claimant to a risk to which he should not have been exposed as making a material contribution to the contracting by the claimant of a condition against which it was the duty of both employers to protect him.
Policy considerations weighed in favour of such a conclusion. It was a conclusion which followed even if one of the employers was not before the court.
It had not been suggested in argument that the claimant’s entitlement against either employer should be for any sum less than the full compensation to which he was entitled, although either of them could of course seek contribution against the other or against any other employer liable in respect of the same damage in the ordinary way.
C won
This decision was refined in Barker v Corus [2006] HL which stated that damages should be set in proportion to the amount of time a worker spent with a company.

Frenchay NHS Trust v S [1993] CA:
[Law and morality - medical treatment - best interests of patient to allow to die - consent of court to be obtained first]
D, the hospital where S aged 24 was a patient. S was in a coma (PVS) following a drug overdose. Feeding tube became detached consultant recommended to do nothing.

Held: There was no reason to question the conclusion of the consultant, who considered it in the best interest of the patient not to operate to replace the tube.
S allowed to die.

Gillick v West Norfolk and Wisbech Area Health Authority [1986] HL:
[Law and morality - whether doctor may give advice and treatment on contraception to girl under 16 without parental consent]
Mrs Gillick a Roman Catholic mother of five daughters sought a declaration that a doctor would be acting unlawfully if he gave contraceptive treatment for any of her daughters without the mother's consent.
It was argued on the one hand that teenage pregnancies would increase if the courts ruled that parental consent was necessary, on the other hand that the judges would be encouraging under-age sex if they did not.

Held: A doctor could prescribe contraceptives to a girl under 16 to prevent damage to her health, even though he knew it would assist a man to have unlawful sexual intercourse.
By a majority of three to two. A child under 16 who can fully understand the implications of the proposed treatment (a "Gillick competent" child) can give her own consent to medical treatment.

(Since Parliament had not legislated, the courts had to make a decision one way or the other.)

Mrs Gillick lost.

Howe, R v [1987] HL:
[Law and morality - judicial precedent – HoL - examples of departing - influenced by morality]
D took part with others in two separate murders, and on a third occasion the intended victim escaped. D's claim to have acted under duress was left to the jury on two of the three counts, but D was convicted on all three

Held: Using the Practice Statement, departed from its decision in Lynch v DPP for Northern Ireland [1975] to say that no participant (whether principal or accessory) can claim duress in defence to a murder charge.
In Lynch, the House of Lords had held that duress was available as a defence to a person who had participated in a murder as an aider and abettor. Not to do so would produce the illogical result that, whilst duress is a complete defence to all crimes less serious than murder, it is not even a partial defence to a charge of murder itself.
In R v Gotts [1992] the decision in Howe was extended by holding that duress is not a defence to attempted murder.

Lord Griffiths said:
" We face a rising tide of violence and terrorism against which the law must stand firm recognising that its highest duty is to protect the freedom and lives of those that live under it. The sanctity of human life lies at the root of this ideal and I would do nothing to undermine it, be it ever so slight.”
The prime factor in favour of overruling was that the cases were simply wrong as a matter of morality. The earlier cases had carved out a duress defence for certain secondary parties and now the Lords basically disagreed as a matter of morality with what had been done. That Howe was decided in the context of increased experience with and fear of IRA terrorism cannot be overlooked. A secondary reason for the overruling is connected with the Shivpuri factor that the exceptions carved out in the earlier cases lead to uncertainty in their application.

Human Fertilisation and Embryology Authority Ex p. Blood, R v [1997] CA:
[Law and morality - artificial insemination - dead husband's sperm]
Dianne Blood's husband, Stephen, contracted meningitis and lapsed into a coma. Samples of his sperm were collected by electro-ejaculation for later artificial insemination. Her husband died shortly after the samples were obtained.
The Human Fertilisation and Embryology Authority refused to give the necessary consent to treatment in the UK citing the Human Fertilisation and Embryology Act 1990 which required the written consent of a donor to the taking of his sperm. They also refused to authorise export of the sperm for treatment abroad.
Held: Medical treatment for a woman and a man together could not occur after the man who had provided the sperm had died.
The absence of the necessary written consent meant that both Mrs Blood's treatment and the storage of her husband’s sperm were prohibited by the 1990 Act, and any exceptions in the Act did not apply.
By virtue of arts 59 and 60 of the EC Treaty, Mrs Blood, had a directly enforceable right to receive medical treatment in another member state, and the authority’s refusal to authorise the export of her husband’s sperm infringed that right since it made the fertilisation treatment she sought impossible.
Mrs Blood was allowed to use the sperm abroad
[Comment]: Mrs Blood used the sperm in a Belgium clinic and later gave birth to a boy, Liam.
She had a second son Joel. by the same method .
Under the Human Fertilisation and Embryology (Deceased Fathers) Act 2003 act, mothers such Mrs Blood whose children were conceived after their father's deaths, are given a six-month "window" in which to re-register their children's births.

Knuller v DPP [1973] HL:
[Law and morality - courts dictate morality]
D published a gay contact magazine thereby conspiring to corrupt public morals.

Held: In Shaw (1962) the House of Lords held that the common law crime of "conspiracy to corrupt public morals” existed despite many commentators believing that it did not exist; effectively the HoL created it.
Lord Reid had dissented in Shaw, and still believed it to be wrong, but it did not follow that it should now be reconsidered.
Lord Reid stated:
“I dissented in Shaw's case. On reconsideration I still think that the decision was wrong and I see no reason to alter anything which I said in my speech. But it does not follow that I should now support a motion to reconsider the decision. I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act.”

Nettleship v Weston [1971] CA:
[Law and morality - decisions based on policy]
D a learner driver went out for her first lesson, supervised by a friend C. D crashed the car into a lamppost, and C was injured.
Held: Even learner drivers are to be judged against the standard of the reasonably competent driver. The fact that a particular driver is inexperienced and incompetent does not excuse his falling short of this standard. It matters not that a learner driver is doing her incompetent best.
Lord Denning applied policy considerations in deciding this case because, he said, the injured person can recover damages from the insurance policy; however the insured party must be at fault first.
Denning LJ
"Thus we are, in this branch of the law, moving away from the concept: 'No liability without fault'. We are beginning to apply the test: 'On whom should the risk fall?' Morally the learner-driver is not at fault; but legally she is liable to be because she is insured and the risk should fall on her."
C won damages subject to a deduction for contributory negligence.

Pretty v The United Kingdom (2002) ECHRL:
[Law and Morality - right to die - euthanasia]
Diane Pretty was terminally ill with Motor Neurone Disease. She wanted to obtain the right to be able to request medical help to die at a time of her choosing. Particularly, to be given a guarantee that her husband would not be prosecuted for assisting her suicide in an active way.
Held: Permission refused.
The Director of Public Prosecutions did not have the power to give an undertaking that he would not consent to prosecute the husband of a terminally-ill woman if he helped his wife to commit suicide.

Mrs Pretty died on 11th May 2002 her case received worldwide coverage. She was backed by the Voluntary Euthanasia Society (VES).

R v R (rape - marital exemption) [1991] HL:
[Law and morality - changing attitudes]
D living apart from his wife raped her in her parents’ home, which he had forcibly entered.
Held: Abolishing a husband's 250 year old immunity from criminal liability for raping his wife The long-standing rule that a wife was deemed to have given her consent irrevocably was no longer appropriate.

Lord Keith:
"This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it"
Lord Keith thought this was an example of the common law evolving in the light of changing social, economic and cultural developments.

Re A (Children) (2000) CA:
[Law and Morality – conjoined twins – CA not a court of morals]
‘Jodie’ and ‘Mary’ joined at the lower abdomen. Jodie's heart and lungs provided oxygenated blood for both. Both would die shortly if nothing were done. If the twins were separated, Jodie had a good chance of a fairly "normal" life but the operation would cause the immediate death of Mary. The twins' parents opposed the application for religious reasons.

Held: Ward LJ said the court was ‘not a court of morals’ and considered that the operation would be lawful self-defence i.e. the doctors would be coming to the aid of Jodie.
Ward LJ:
"Mary may have a right to life, but she has little right to be alive...[she] is killing Jodie... she sucks the lifeblood of Jodie.
[Mary] will survive only so long as Jodie survives. Jodie will not survive long because constitutionally she will not be able to cope. Mary's parasitic living will be the cause of Jodie's ceasing to live."
Brooke LJ said there could be no doubt that in English law, a surgeon who performed the separation knowing that it would inevitably hasten Mary's death would be held to have caused that death and to have done so intentionally, even though that would not have been his primary motive. So far as the law was concerned, the doctrine of double effect did not apply here because Mary's death would not be a side-effect of treatment that was in her best interests overall. The defence of necessity would prevail:
'It has been said that there are three necessary requirements for the application of the doctrine of necessity. The act is needed to avoid inevitable and irreparable evil. No more should be done than is reasonably necessary for the purpose to be achieved. The evil inflicted must not be disproportionate to the evil avoided... I consider that all these requirements are satisfied in this case.' [You should note that this is in variance with cases such as Dudley and Howe].
Permission of operation granted, operation performed Mary died. The court expressly stated that this case creates no precedent for future cases.

Re B (A Minor) (Wardship: Medical Treatment) [1981]:
[Law and morality - newly born Mongol child requiring operation to save life - parents refusing consent - whether operation in child's best interests]
D, local authority. Surgeon agreed with parents to allow to die a child with Down's and complications.

Held: Best interests of the child that she should have an operation, child could expect normal span of life of a Mongol.
Child allowed to live.

Re B (adult: refusal of medical treatment) [2002] FD (Dame Elizabeth Butler-Sloss):
[Law and morality - the right to die]
D the hospital caring for the applicant Ms B who asserted her common law right as a competent adult to refuse life-sustaining treatment. Ms B became tetraplegic and suffered complete paralysis from the neck down, but she was able to move her head and speak. She gave formal instructions to the hospital through her solicitors that she wished artificial ventilation to be removed, even though she realised that that would almost certainly result in her death.

D argued "ambivalence" evidenced by the fact that Ms B had told the doctors that she was glad that effect had not been given to an earlier advance directive
D also argued benevolent paternalism or parentalism ('doctor knows best') Dame Elizabeth Butler-Sloss criticised this attitude in trenchant terms.
Held: It is established since Re T (adult: refusal of medical treatment) that a competent adult may refuse medical treatment, even if the likely result will be their own death, and that refusal may be for reasons which are rational, irrational, unknown or non-existent. This right has been confirmed in Airedale NHS Trust v Bland [1993] HL and Re MB (an adult: medical treatment) [1997], where can be found further ringing endorsements of the right of a capable person to self-determination.
Moreover, there is a presumption of capacity, and it is for those asserting the right to override the patient’s wishes to establish incapacity, rather than for the patient to establish her own capacity: Re C (adult: refusal of medical treatment).

Ms B was allowed to die and did so peacefully some weeks later.

Re J (a Minor) [1991] CA:
[Law and morality - right of parents - to decide on the medical treatment]
D, doctors decided not to use a ventilating machine should baby J cease breathing. Baby suffered severe mental and physical handicaps.

Held: It was the right of parents, and the court, to decide on the medical treatment. But, there was no absolute presumption in favour of life. Although there was no right to kill, there was equally no requirement to ‘strive officiously to keep alive’.

Mother's wishes approved; use of ventilator allowed.

Re S (Adult Patient: Sterilisation) (2000) CA:
[Law and morality - mental disorder - medical treatment, consent to - sterilisation operation - Whether in patient's best interests]
S, a woman of 29 with severe learning difficulties had a phobia about hospitals and whose periods caused her distress. The mother's view that the major advantage of the hysterectomy over a contraceptive device was that it was a single procedure without the need for any further surgical intervention

Held: Logically there could only be one best decision in S's best interests and, as the weight of the medical evidence supported the less invasive method as the preferred option, the mother’s concerns did not tilt the balance towards major irreversible surgery for therapeutic purposes.
The Bolam test became irrelevant to the judicial decision as to whether the treatment was in the patient's best interests as that process required the judge to have regard to the patient's welfare as the paramount consideration. Re F (Mental Patient: Sterilisation)[1990] applied. Patient’s appeal allowed.

Re T [1992] CA:
[Law and morality - consent to medical treatment - refusal of blood transfusion - whether refusal effective - whether doctors entitled to treat in accordance with patient's best interests]
T aged 20 years old, 34 weeks' pregnant, did not want a blood transfusion, because of her Jehovah's Witness beliefs. Her father wanted transfusion given forthwith.

Held: Although an adult patient was entitled to refuse consent to treatment such a refusal may have been affected by illness, medication, false assumptions, misinformation, or her will overborne.
Blood transfusion lawful.

Re W (A Minor) [1992] CA:
[Law and morality - girl 16 refusing consent to proposed treatment - whether absolutely entitled to refuse treatment]
Local authority wanted to treat W against her wishes. W had anorexia

Held: Law did not confer on a 16 an absolute right to determine medical treatment. Minor's wishes, which would be considered, could not overrule consent given by the court. Best interests required immediate treatment
W treated against her wishes.

Roe v Ministry of Health [1954] CA:
[Law and morality - defendant may not be liable provided he acted in accordance with general practice]
D, anaesthetist gave a spinal aesthetic contained in an ampoule, which had been contaminated with phenol.

Held: The danger of invisible cracks not known until 1951.
Complainant’s claim failed.

Shaw v DPP (1962) HL:
[Law and morality - courts attempts to dictate morality]
D conspired to corrupt public morals by publishing a booklet containing details prostitutes, and their services. This was hitherto an unused common law offence.

Held; Lord Tucker cited precedents for the offence.
Viscount Simonds;
”In the sphere of criminal law, I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for.”
Lord Reid (dissenting) said there were widely differing opinions as to how far the law should punish immoral acts done in private,
“Some think that the law already goes too far, some that it does not go far enough. Parliament is the proper place, and I am firmly of opinion the only proper place, to settle that.” Guilty.

Sidaway v Bethlem Royal Hospital [1985] HL:
[Law and morality - defendant may not be liable provided he acted in accordance with general practice]
D, surgeon. Complainant not informed of risk, suffered damage to the spinal cord.

Held: 'Bolam Test' applies to question of whether to disclose risk.
Her claim failed.
Held: A genuine lack of appreciation that the child needed medical care or failure through stupidity, ignorance or personal inadequacy to provide that care were both good defences because wilfully neglecting a child was not an offence of strict liability. Not to be judged by the objective test of what a reasonable parent would have done. The civil law concept of negligence was not to be imported into the offence.
Not guilty

Stone & Dobinson, R v [1977] CA:
[Law and morality - manslaughter - assumption of duty of care for infirm person - indifference to obvious risk of injury to health - sufficient to prove recklessness]
D’s lived with eccentric F, who was anorexic. F died in bed.

(i) The defendants had assumed the duty of caring for her.
(ii) Recklessness proved by indifference to an obvious risk or actual foresight of the risk and running that risk. Mere inadvertence, however, was insufficient to prove recklessness.
Both guilty.

Youssoupoff v MGM Pictures (1934) CA:
[Law and morality - morality shifting over time]
C complained that she could be identified with the character Princess Natasha in the film 'Rasputin, the Mad Monk'. The princess claimed damages on the basis that the film suggested that, by reason of her identification with 'Princess Natasha', she had been seduced by Rasputin.

Held: The princess was awarded £25,000 damages.
It was contended that if the film indicated any relations between Rasputin and 'Natasha' it indicated a rape of Natasha and not a seduction.

Slesser LJ considered the film defamatory whether it suggested rape or seduction:
“I, for myself, cannot see that from the plaintiff’s point of view it matters in the least whether this libel suggests that she has been seduced or ravished. The question whether she is or is not the more or the less moral seems to me immaterial in considering this question whether she has been defamed, and for this reason, that, as has been frequently pointed out in libel, not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on her part, but also if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on her part. It is for that reason that persons who have been alleged to have been insane, or to be suffering from certain disease, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour. One may, I think, take judicial notice of the fact that a lady of whom it has been said that she has been ravished, albeit against her will, has suffered in social reputation and in opportunities of receiving respectable consideration from the world.”

There can never a hard jacket or a universal formula which could determine that should law be used to enforce morality. It can only be concluded that the level of enforcement of moral standards depends upon case to case.

In the cases where morality shadows a good and beneficial effect on the society, there if required, law could be used to enforce that positive morality. For example, in the case of International Humanitarian Laws, certain moral standards are also recognized as a part of law or in another illustration that, all religious and moral norms say not to kill or not to steel, and this moral is enforced through law.

On the other hand, that morality which produces any harmful effect in any form in the society, there law should never be used to enforce such morality. For example, the celebration of Valentine's Day in Indian society is considered as amoral. But such morals must never get the institutional shape of law.

Government and governing involve questions of value, questions about what is good, and what is good for us, as well as what is evil and what will do us harm. To instruct us regarding the good, to lead us toward it and to protect us from evil — whether our own or someone else’s — are all part of the function of law. Those who wish to exile virtue from the legal code, who wish to banish virtue from law and to render legislation a morality-free zone, set these important and valuable functions of law at nought. Were those persons to succeed, we and they would suffer incalculable harm, having had one of our most useful moral educators shut down or censored, as it were. They would stop the moral voice of law. In so doing they would silence one of our most valuable instructors of civic virtue and thereby destroy one of our most effective guides to prudent social behavior, and to the blessings that attend it.

All cultures are expressions of deeply rooted values. Cultures are the historical outgrowth of those values — the historical human consequences of those values — values that sometimes lead to compassion, beauty, war, deprivation, heroism, or degeneration. Law is a function of culture — all cultures have law — which means that law is a function of values or morality. Law without values is cultural suicide, which is what those who wish to separate the one from the other are going to produce, whether they wish to or not. In our age of increasingly complex moral problems, where technological advances outstrip moral growth and understanding, we must do our level best to cultivate the wisest persons, the noblest motives, and the highest actions of which we are capable. We need to make far better use of the law as tutor and moral ennobler. We must remind ourselves repeatedly that the best habitat in which to raise ennobled citizens is a well-ordered society, one in which law is rooted in morality. We dare not forget that law is both an expression and shaper of the conscience of a nation. Consequently, the near-sighted and misguided movement to separate law from morality is as dangerous as it is impossible. Both for our nation and for us as individuals, our character is our future. Morality is destiny.

[1] Thomas Aquinas: Summa Theologica I-II q. 90 a. 4).
[2] R. Yepes: Fundamentos de Antropología, Pamplona, 1996, p. 312.
[3] Servais Pinckaers: Pour une Lecture de Veritatis Splendor, Paris, 1995, pp. 41-42.
[4] Pope John Paul II, Address to the International Union of Catholic Jurists, Nov. 24, 2000.
[5] Alasdair MacIntyre, After Virtue, 1984 (2nd Edition), p. 152.
[6] No one more than Holmes promoted legal positivism. Today his views are being called more and more into question. For an incisive criticism, see: Alschuler, Albert: Law Without Values. The Life, Work, and Legacy of Justice Holmes, University of Chicago Press, 2002.
[7] The Path of the Law (1897): quoted in R. George: The Clash of Orthodoxies, 212). But even the amount of damages has to be assessed according to a measure of justice - of what is due, which would remain due even if there were no court to assess it or external power to exact it.
[8] "The law is a great thing - because men are poor and weak, and bad. And it is great, because where it exists in its strength, no tyrant can be above it" (Anthony Trollope: The Duke's Children, Ch. 61).
[9] "Ex intima hominis natura haurienda est iuris disciplina" (De legibus, II).
[10] "Omnis lex humanitus posita intantum habet de ratione legis, inquantum a lege naturae derivatur. Si vero in aliquo, a lege naturali discordet, iam non erit lex sed legis corruptio": Summa Theologica (I-II, q. 95, art. 2).
[11] Address of May 9, 1992: AAS 85 (1993). pp 498-499).
[12] The Sources of Christian Ethics, 1995, pp. 38-39.
[13] John Allen: All the Pope's Men, p. 103.
[14] First Things: an Inquiry into the first principles of morals and justice, 1986, pp. 3-8.
[15] 112 S. Ct. 2791, 2807 [1992].
[16] Positivism and separation of law and morals (1957-58) 71 Harvard Law Review at p 601 n 25
[17] The Philosophy of a Law, ed. R.M. Dworkin, Oxford University Press, London, 1977.


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