LAW and Morality Essay Example
LAW and Morality Essay Example

LAW and Morality Essay Example

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  • Published: May 8, 2018
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Law and the social structures in which it operates are variables which by necessity must interact. Neither can be understood in isolation from the other, and most legal systems are both discretionary and idiosyncratic of the particular society in which they operate. The discretionary element of legal systems has often been criticized for a number of reasons, not least the possibility of unfairness and inconsistency in Judicial decisions making. There are also those who have emphasized the advantages that a discretionary legal system offers.

For example, Hay (1975) argued that such discretion was an essential expression of the power of paternalism and that it could affect issues such as the ability to grant or deny mercy. Whilst there are those who would both agree and disagree with these sentiments, the long, often impassioned and

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certainly unconcealed debate about law and morality has continued. Whether one agrees or disagrees with Hay it is certain that no one interested in the relationship between law and morality can dismiss three of Hay's particular insights.

Namely that; law enforcement can only be understood by placing it within an historically specific social and political context; an understanding of the functions of legal authority is accessory to any evaluation of the legal system and ; legal power and particularly the power of discretionary authority can be routinely manipulated to support those privileged by position. Added to this, Moss (2006 & 2008) has emphasized that criminality itself is a flexible and rapidly changing concept. For example, if we ask the question What is a crime? E could answer this by saying perhaps that it is an action prohibited by law o

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behavior prohibited by a criminal code. If we ask a further question What is a criminal? We might say a person who breaks the law or a person who has been convicted of a crime. However, we could also highlight what is wrong with these definitions. First, what is defined as crime or criminal can change over time. For example, law relating to homosexuality, to prohibition in the United States and also rape laws.

Second, (and which fits in with Hay's ideologies) what is defined as a crime is arguably more to do with a reflection of the interests of the powerful of the time and not necessarily to do with what is moral/immoral. Third, there are different perceptions of crime. For example those crimes we could collectively refer to as 'not so bad' and those we could say were 'really bad'. For example, and generally speaking, most people (whether Justifiably or not) might view tax fraud or speeding as not particularly serious crimes. Conversely crimes such as murder, rape or genocide are generally thought of as very serious.

The result of this is that definitions of crime and criminals become very slippery because they change over time depending on changes in society. Accordingly, in most societies crime is viewed as a relative concept and criminality neither a wholly objective or subjective phenomenon but rather a subjective interpretation of objective acts. Law enforcement and the benefiting of criminality can therefore never be never neutral because they emanate from governments and thus they logically express the concerns of those pre-eminent in the social structure.

Weber (1964) regarded the political systems of modern Western societies as forms

of 'legal domination' with their legitimacy based upon a belief in the legality of their exercise of political power. Weeper's was a positivistic concept of law - meaning that law is precisely what the political legislator (whether democratic or undemocratic) enacts as law as long as it accords with legally institutionalized procedures. As such, Weber suggested that the law cannot legitimate itself by claiming that it has an alliance between law and morality.

One of the difficulties of reconciling issues of law and morality was highlighted by the Hart-Devil debate which surrounded the legalization of homosexuality between consenting male adults and which questions whether there is a role for law at all in matters of morality. Patton suggests that; "in all communities that reach a certain stage of development there springs up a social machinery which we call law. In each society there is an interaction between the abstract rules, the institutional machinery existing for their application, and the life of the people. Master also suggests that; Throughout history, law has played an important role in the definition and protection of certain relationships, systems and institutions and in the control of individual and collective human behavior. Through the use of normative and prescriptive rules, supported by varying degrees of sanctions, law has been used to create a climate of social order, the usual Justification of which has been that it benefits members of society. It is certainly the case that historically the law was seen as being inextricably linked with issues of morality since medieval law makers were seen to derive their authority erectly from God as a 'Divine Right. ' In this context laws

were respected because they were seen to be connected in a fundamental way, with issues of morality. With the passage of time, the development of science and technology and other such significant changes in society such as a greater degree of secularity, the connection between law, religion and consequently morals has diminished.

Today, there appears to be a more general acceptance that whilst there is not necessarily an interdependence between law and morality, it is still most people's perception that he law should work in such a way as to protect society including certain moral aspects, although the morality of society is of course not a static notion. Consequently as society moral outlook changes, so the law must change with it. The problem with this is how far should the law intervene in matters of morality or personal conscience before it becomes inappropriate?

Where should the line be drawn between the legitimate role of the law in such matters - perhaps where it is deemed necessary to protect the public interest - and where issues should be left to an individuals own conscience? This is a particularly difficult question if one accepts that what might have been deemed an acceptable role for the law historically, would not, in the modern world, perhaps be thought of as such. Thus the debate itself is not a static one.

In the I-J, the Wolfed Report (1957) was particularly influential in raising the profile of this debate some fifty years ago. The Report suggested that the law, which previously made consensual homosexual relations in private an offence should be changed, primarily because the suggestion was that the law had

no part to play in decisions about morality. Subsequent to this, both Lord Patrick Devil and Professor Herbert Hart engaged in the debate which has been discussed since by other authors such as George (1996) and Hitting (1990).

The relevance of this is rooted in the issue of the enforcement of morality and what the basis of decisions should be in circumstances where there is a conflict between individual moral freedom and social control. Specifically within this debate, Lord Devil addressed himself to two particular issues. First, he asked, has society the right to pass Judgment on matters of morals and second, if society has this right, goes it also have the right to use the law to enforce it?

Devil's view was that the law should be able to intervene in matters of morality, in order to preserve what he called 'society's constitutive morality. ' In relation to the Wolfed Report, Devil claimed that homosexuality was a threat to society and as such it fell within the domain of public morality, on which the law should pass Judgment to preserve social cohesion. Devil claimed that in order to decide which rules of morality should be enforced a feelings test' should be applied in order to determine the potential for arm to an individual.

Whilst Hart agreed with Devil that if a threat existed, which was sufficient to challenge social cohesion and then the law ought to be able to intervene, he did not agree that homosexuality was an example of this and was clear about his view that in order to prove what constituted true threats to society, then empirical evidence was required. What

appears to be the case with these respective positions is that both Devil and Hart have inherently different values and this then informs each of their arguments in a different way as regards the enforcement of morals.

This is precisely why the question of law and morality is so difficult since it must be attached to the current social condition, and the expectations and values of society, but social conditions are not constant. Thus we have a potentially continuous debate about the balance between law, morality, freedom and social control. Whichever position one takes in such matters, there will no doubt be some intellectual philosophy which will support it and in this sense, perhaps this dilemma can never be resolved by reason. For what might be one mans reason may well be another's unreason.

It is possible to see these kinds of developments in previous legal cases. For example, in Kneeler v EDP [1973] HAL, the defendant published a gay contact magazine and on the grounds that the court stated that it could indeed dictate morality, he was thereby convicted of committing the common law offence of 'conspiring to corrupt public morals. ' Interestingly, in a previous case - that of Shaw (1962) - the existence of this offence had been held in question. In response to this, the House of Lords had held that the common law crime of 'conspiracy to corrupt public morals' did exist despite many commentators believing that it did not.

Effectively what could be construed from this is that the House of Lords created this offence, presumably because they felt that it reflected their own, or society moral values at

that time. Another point of interest is that Lord Reid had dissented in Shaw, and stated in a subsequent case that; "l dissented in Shah'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 f 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. " Clearly one of the most interesting and dynamic changes to the way in which courts are prepared to view the co-existence of law and morality surfaces in cases concerning marital rape which, prior to 1991 was not illegal.

Specifically the case of R v R (which concerned the marital exemption from rape) [1991] HAL demonstrates the hanging attitude of the court to this particular issue of law and morality. The defendant, who had been living apart from his wife, raped her in her parents' home, which he had forcibly entered. The court held that a husband's 250 year old immunity from criminal liability for raping his wife should be abolished and that the long-standing rule that a wife was deemed to have given her consent irrevocably was no longer appropriate.

In the course of hearing the case Lord Keith stated; "This

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

This shift has also been seen to affect other areas of morality as demonstrated by the case of Click v West Norfolk and Wished Area Health Authority [1986] HAL. This case concerned the issue of law and morality in relation to whether a doctor may give advice and treatment on contraception to girl under 16 without parental consent. In this case, Mrs. Click- 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, but on the other hand that the Judges would be encouraging under-age sex if they did not. By a majority of three to two the court held that 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.

Further, the court stated that a child under 16 who can fully understand the implications of the proposed treatment (a "Click competent" child) could give her own consent to medical treatment. This case

raises a moral question. Specifically, would such a doctor be guilty of aiding and abetting the commission of a crime - that of sexual intercourse under the age of 16? The rationalization of the court was that; "Whether or not a doctor prescribing contraceptives to a girl under 16 was aiding and abetting the commission of the offence of unlawful sexual intercourse loud depend upon his intentions.

Per Lord Fraser: Where a doctor provided contraceptives honestly intending to act in the best interests of the girl it was unlikely that he would be committing a criminal offence. Per Lord Cascara: The bona fide exercise by the doctor of his clinical Judgment of what was necessary for the physical, mental, and emotional health of his patient must be a complete negation of the guilty mind which was an essential ingredient of the criminal offence of aiding and abetting the commission of unlawful sexual intercourse. " ADVANCES IN EMBRYOLOGY AND THE RESPONSE OF THE LAW

Recent advances in the science and technology of embryology and human fertilization have naturally necessitated that the courts have been called upon to make difficult decisions concerning sensitive and often compelling cases of infertility or associated problems in women. One of the most well known cases in relation to this area is that of R v Human Fertilization and Embryology Authority Ex p. Blood [1997] CA which called upon the Judiciary to deliberate upon issues of law and morality in relation to artificial insemination and the use of a dead husband's sperm.

The facts of this particular case were that Dianne Blood's husband, Stephen, interacted meningitis and lapsed into a coma. During

this time, samples of his sperm were collected by electro-ejaculation for later use in artificial insemination. Her husband died shortly after the samples were obtained. The Human Fertilization and Embryology Authority refused to give the necessary consent to her treatment for the artificial insemination of this sperm in the I-J. They cited the Human Fertilization and Embryology Act 1990 which required the written consent of a donor to the taking of his sperm.

They also refused to authorities export of the sperm for treatment abroad. Mrs. Blood challenged the decision of the Human Fertilization and Embryology Authority but the court upheld their decision stating that 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.

However, subsequent to this decision and by virtue of articles 59 and 60 of the European Communities Treaty, Mrs. Blood proved that she had a directly enforceable eight to receive medical treatment in another member state, and the authority refusal to authorities the export of her husband's sperm infringed that right since it made the fertilization treatment she sought impossible. She subsequently used the sperm in a Belgium clinic and later gave birth to a boy, Lima. She had a second son Joel, by the same method.

This case is interesting not simply by virtue of the fact that both the opinions of the Human Fertilization and Embryology Authority and the I-J Court

of Appeal were clearly inconsistent with European Community law but that this also gave rise to a rather piece of legislation, namely the Human Fertilization and Embryology (Deceased Fathers) Act 2003. This Act allows mothers such as Mrs. Blood, whose children were conceived after their father's deaths, a six-month Window in which to re-register their children's births.

It would appear in such cases, that the UK courts most certainly see themselves as having the authority and competence to Judge both matters of law and morality and feel sufficiently able to make decisions on such matters which might realistically in a number of cases, be deemed matters of conscience. However, the following case monstrance that unfortunately this does not appear to be an approach which is applied consistently in all cases. The case of Re A (Children) (2000) CA concerned matters of law and morality in relation to the issue of conjoined twins.

As we shall see from this Judgment, and despite previous Judgments that have been cited in which various courts have freely provided a decision in matters of morality, in this particular case the Court of Appeal claimed that it was 'not a court of morals. ' In this case the twins 'Jodie' and 'Mary had been born Joined at the lower abdomen. Goodie's heart and lungs provided oxygenated loud for both and 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 separation for religious reasons. In Judging the case, Ward LLC said the court

was 'not a court of morals' and considered that the operation would be lawful self-defense - that is, the doctors would be coming to the aid of Jodie. Specifically he stated that; "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.

Mar's parasitic living will be the cause of Goodie's ceasing to live. " Brooke LLC said there could be no doubt that in English law, a surgeon who performed the separation knowing that it would inevitably hasten Mar'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 Mar's death would not be a side-effect of retirement that was in her best interests overall and the defense of necessity would prevail.

Further he stated that; '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. ' As a result, permission to carry out the operation was granted and when performed Mary died as predicted. The court expressly stated

that this case created no precedent for future cases.

It is perhaps important at this stage to sum up the judgments in these cases and to ask, what do they tell us? In 1973 the court states that it is capable of dictating morality and does so in a very strict manner. The decision made in the case of Kneeler is one which would not be made today, given changes in the way society (and the law) views issues of public morality. This was a clear indication that the court did indeed see itself as a court of morals. Problematically in terms of understanding subsequent cases and the courts hafting approach to such matters, the interpretation of the court has inevitably not remained static.

Whilst one might expect the law to be interpreted in a different way 35 years on from the case of Kneeler, the changes that have taken place appear not to be altogether consistent. Regarding the issue of law and morality in the case of a dead husband - who was clearly not actually around to either give or withdraw consent - the decision of the I-J court to disallow use of his sperm on the basis of morals and lack of consent, was subsequently held to be inconsistent with CE law ND the issue of consent was therefore no longer relevant.

Regarding the issue of law and morality in contraception, the court held that no parental consent was required for girls under 16 to access contraception. In 1991 we see a 250 year old outdated rape law amended in line with changing attitudes to morality. All of these cases could be

interpreted as indicating that the courts have and currently do see themselves continuing to make Judgments in a moral capacity. However, interestingly by 2000, in the difficult case of Jodie and Mary, the Court of Appeal states quite categorically that t is not a court of morals.

Inevitably this has created some confusion from the point of view of the mixed messages that it appears to send out. So, are we to assume that in certain types of cases, the courts will decide that they have the capacity to make judgments about morals, but in other cases, they will decide they do not? How, therefore - and from the perspective of attempting to understand these issues - are we to determine in which cases the court will make Judgments upon morals and in which cases they will not?

More important, as science and technology develop, how is the law responding to this? LAW, EMBRYOLOGY AND DECISION MAKING IN RELATION TO THE NEWLY POSSIBLE Against the background of the newly possible, it is relevant to focus on the case of Evans v United Kingdom [2006]. Having lost her ovaries to cancer treatment, previously stored embryos created from Ms Evans' eggs and her ex-partner's sperm represented Ms Evans' last chance to have her own genetic child.

With the I-J courts having denied her claim to use the embryos against her ex-partner's wishes, Ms Evans lawyers argued that the current Human Fertilization and Embryology Act contravened the European Convention on Human Rights. However, the OCHRE did not Greer that I-J law broke the right to a private and family life, granted under article eight. It also rejected Ms

Evans claim that the law violated article 14, the right not to be discriminated against, as it hinged a possible pregnancy on her partner's consent.

As a result the European Court of Human Rights decided by a majority of five to two that UK law did not breach her Convention rights and the fertilized embryos were duly destroyed. The Evans case is not unique. In Ireland, in MR. v TRY [2006] another woman was similarly recently refused the right to use stored embryos against the wishes of her estranged husband. These two Judgments highlight two important issues. First, the significance that the law has seemingly attached to the role of genetics in parenthood and second, the difficulty of achieving some sort of equality in balancing the competing interests of two potential parents.

It also demonstrates clearly that the law appears to be able to make Judgments in such matters which arguably are rooted in issues of morality, not Just genetics and technology. What was interesting in both of these very difficult cases is that whilst the courts did not appear to have any difficulty with their right to sit in Judgment of such matters, at he same time they did not give the fullest consideration to all of the relevant factors.

For example, in both cases it seems to have been assumed that genetic links have the same psychological, social and moral significance for men and for women. But in terms of the respective roles of both fathers and mothers and the inherent differences that this has for each, can the courts really be certain that both male and female genetic interests are truly the

same and should be treated by the law as such?

These challenging cases have required the Judiciary to make sense of the inherent meaning of the family, parenthood, gender, and reproduction. The question remains as to whether they are doing so consistently, fairly and rationally for parents of both genders. The cases of Blood and Evans appear to establish that it is currently lawful to use a man's sperm without his consent (clearly this will only occur after his death), but that it is not currently lawful to use frozen embryos without the same consent.

Another much more recent case has re-emphasized this position. Templeton (2009) reports in February that another woman had recently won the right to conceive a child using perm retrieved from her dead husband even though he did not give written consent during his lifetime. The woman, (L) who already had one child with her husband, will only be able to use the sperm abroad since it remains illegal to use it in the UK without written consent. She plans to travel to the US for treatment.

The facts of this case - reported as L v HAVE [2008] - note that the husband in question died unexpectedly following an appendectomy. On the basis that L and H had wished to have another child who would be a full sibling to their existing child, L obtained exclamatory relief that it was lawful to retrieve sperm from He's body within 24 hours of his death and that the sperm was to be stored at a clinic or hospital until further order of the court. The gametes (sperm) were only retrieved and transferred

to a clinic for storage.

Section 4 of the Human Fertilization and Embryology Act 1990 states that the storage and subsequent use (but not retrieval) of gametes can only be carried out pursuant to a license issued by the HAVE. The clinic applied to the HAVE for permission to export the gametes abroad for L's use under section 24(4) of the Act, which provides that; [the HAVE] may authorities any person to whom a license applies to send gametes or embryos outside the United Kingdom in such circumstances and subject to such conditions as may be specified in the directions. In November, the application for export was adjourned pending the ruling of the court as to the lawfulness of the gametes' storage. The first question was whether the continued storage of He's sperm was lawful and whether the Act's prohibition on storage for use in the UK without effective consent was in violation of art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 950 (as set out in Part I of Schedule 1 to the Human Rights Act 1998).

It was submitted that, although the margin of appreciation was wide, an absolute or 'bright line' based on effective consent produced such an anomalous result on the facts of the case, by precluding the storage and use of He's sperm, that it was not sustainable. The court further considered and gave its preliminary view on the issue of whether the requirements relating to effective consent as applied to storage pending export (or possible export) resulted in an unjustified interference with arts 49 and 50 of the

CE Treaty. The court

held [2009] 1 FCC 138 at 140, that; "The Act set an absolute, clear and bright line which prevented storage for use in the I-J, and use in the I-J, without effective consent. That was because there was no power given to the HAVE, or anyone else, to alter or mitigate the force of the provisions on the terms of licenses relating to the need for such effective consent before gametes (and embryos) could be stored and used.

Those terms precluded the storage and use of He's sperm in the instant case because he had not provided an effective (or indeed any express) onset to their storage and use after his death. Authority made clear that English courts should not apply the test of legitimate aim and proportionality to each different case relating to storage and use of gametes and embryos under the Act, and thereby seek to make potentially fine distinctions by reference to specific facts.

Rather they should have regard to the reasoning of the European Court of Human Rights on the application of the margin of appreciation to see whether it assessed the issues as a general rule and not simply on the facts of the case and, if it did the roomer, whether the different situation in the later case could found a result that was so anomalous that it rendered that result and effect of the legislation incompatible. The circumstances of the instant case fell well short of founding an argument that the need for effective consent to storage in the I-J, for subsequent use in the I-J, was incompatible with the claimant's Convention rights.

Accordingly, a declaration that continued

storage of He's sperm was lawful would not be made. " It could be suggested that the facts of this case are similar to that of Blood. There is no consent in either ease, but of course the position was supposed to have been clarified by the Deceased Fathers Act 2003. In that case it was argued that refusal would constitute a violation of the OCHRE and unjustified interference with articles 49 and 50 of the CE treaty. The result was that L was given the green light by the Court despite the lack of consent.

Interestingly also is the fact that there are aspects of the Judgment which appear to indicate that under the HAVE 1990 section 24, the Authority has some considerable discretion. Does this mean that the Authority has been given the power to decide on he moral implications and the legality of using donor sperm for treatment abroad? Specifically the court commented [2009] 1 FCC 138 at 140 that; "In the context of storage for use outside the I-J and subsequent use outside the I-J it could not be said that the legislation set such an absolute, clear or bright line approach because of the discretion conferred by s 24(4) of the Act.

As a matter of construction, the power conferred by that provision enabled the HAVE before and after retrieval to modify the conditions of the relevant licenses (I)to permit storage in connection with special direction allowing export, and (it) to permit storage pending a special direction on storage, albeit that, having regard to the underlying purpose of the power it would only rarely, if ever, do so.

Accordingly, although

the practical effect of the Act was that, absent a special direction permitting storage for the purposes of export (or whilst a special direction on export was being considered), without effective consent such storage would be unlawful (and a criminal offence), parliament had given the HAVE a discretion which had the result that the Act itself did not

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