To what extent it is appropriate for law to enforce moral standards?

Topics: Morality, Ethics, Moral absolutism Pages: 7 (2751 words) Published: October 6, 2013
Essay Question: To what extent it is appropriate for law to enforce moral standards? Law and morality are related concepts but are arguably distinct. The natural language definition of morality is “principles concerning the distinction between right and wrong or good and bad behaviour”1, whereas law, which can escape definition, is commonly understood to be “the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties”2. These definitions are not to be treated as exhaustive, especially the latter which tends towards the positivist understanding of law, but are offered merely as a starting point for discussion and to allow the terms’ contrast. Historically this distinction has not always been observed as many legal systems were based on the moral precepts of particular states’ or communities’ religions and the associated moral code. It can be impossible in these circumstances to separate law from morality and some nations with state religions have no such separation between law and morality; Sharia law for example exists as part of an overall scheme or framework of belief and faith3 and so it is impossible to make a distinction between the two. Lord Devlin asserted that English law, despite regulating a secular country, was originally informed by Christian morality in what could be described as a similar manner and this is discussed below. Even if this is not the case today as many western countries have entered a pluralistic and secular age many laws still have the effect of enforcing widely held moral beliefs, even if it was not the lawmaker’s intention when drafting them. Examples of these laws range from controlling the opening hours and licencing of liquor vendors to substance abuse laws and prohibitions against murder and assault. Few would argue about the wisdom of prevention of violent crime which has wider social impacts, but it does raise the question of whether the primary reason for these laws being enacted is for policy concerns around public safety or for moral prohibition and sanction. This may not be of concern regarding laws that enforce widely held moral beliefs as is the case with murder, but becomes problematic if the law is enforcing a morality that is only assumed to be shared. This position has been articulated throughout the Western world with regard to the debate surrounding same sex marriage and is often an argument used by exponents of the decriminalisation of marijuana or even in the less innocuous situation of determining the opening hours of licensed establishments. This begs the question as to what extent then it is proper for law to enforce moral standards? This essay will examine the historical debate surrounding this issue and evaluate the positions taken by the chief proponents of the views on either side of the argument. This question originally arose in the wake of JS Mill’s essay On Liberty. The introduction of this work outlined the harm principle which was central to Mill’s argument that the negative liberty of the individual against the state and others was paramount4. In effect Mill argued that it was not within the ambit of the state to regulate the moral actions of its citizens except in situations when this conduct affected the rights of others. Furthermore Mill warned against the fusion of law and morality because it would impede the rights of the individual. Even in democratic systems there exists a danger of a tyranny of the majority developing through sheer weight of numbers. This tyranny of the majority would occur where the morality of the dominant social group is forced upon a minority through the mechanism of law which has been pervaded by this morality. As such the law should only concern itself with preventing harm to others.5 Dias has rightly submitted that this position conceals a moral directive, that it is immoral for the law to enforce morality.6 However...
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