CAPE Law

1. Law and Morality

2. Objectives
 define law
 Define morality

3. Definitions
 It is possible to describe law as the body of official rules and regulations,
generally found in constitutions, legislation, judicial opinions, and the like,
that is used to govern a society and to control the behaviour of its
members, so Law is a formal mechanism of social control.
 Law is also defined as a set of rules and principles which enforce particular
types of behaviour.
 A society’s code of morality may be defined as a set of beliefs, values,
principles and standards of behaviour.

4. Definitions
 Morality is a rule which lays down a standard of behaviour which the bulk of
society accept and to which its members ought to conform and which justifies
censure in its breach.
 Religion is defined as a system of beliefs and practices that people follow in
order to make sense of life, to bring meaning to their existence and to bring
them comfort and guidance.

5. Introduction
 The relationship between law and morality is complex.
Moral
Rules
Legal
Rules
Moral
and
Legal
Rules

6. Law and Morality
 People resort to various kinds of rules to guide their lives. Thus moral rules
and ethics remind us that it is immoral to covet, to tell lies or engage in
drunkenness in private. Society may disapprove of such practices but the law
is not so concerned with such matters and leaves them to the individual’s
conscience.

7. Three main theories
 The Liberal View (harm to others) proposed by John Stuart Mill
 Also sharing a libertarian view is the report given by the Wolfenden
Committee
 The Moralistic view (harm to society) proposed by Lord Devlin
 Paternalist view (harm to self and oothers) proposed by Professor H.L.A Hart

8. The Liberal View
 John Stuart Mill posits that the only purpose for which power can be rightly
exercised over any member of a civilised community against his will is to
prevent harm to others. His own good, either physical or moral is not
sufficient. Mill argues this approach is good for individuals and society.

9. Liberal View Contd.
 The Wolfenden Committee also of the Libertarian view posits that they
see the law as preserving public order and decency, protecting the citizen
from what is offensive and injurious, and also provide sufficient safeguards
against exploitation and corruption of others, particularly those who are
vulnerable because they are young, weak in body and in mind, inexperienced,
or in a state of special physical, official or economic dependence. However,
it is not the function of the law to intervene in the private lives of citizens, or
to seek to enforce a particular pattern of behaviour further than is necessary
to carry out the purposes outline.

10. Liberal View Contd.
 Based on this premise the Committee recommended that homosexuality
between consenting males in private should no longer be a criminal offence.
They suggested that the society ought to give the individual freedom of
choice and action in matters of private morality. They also stated that unless
a deliberate attempt is made by society, acting through the agency of the
law, to equate the sphere of morality with sin, there must remain a realm of
private morality and immorality which is in brief terms “not the law’s
business”. They made the same argument for prostitution.

11. The Moralistic View
 According to Devlin there is only one explanation of what has been accepted
as the basis of criminal law and that is that there are certain standards of
behaviour or moral principles which society requires to be observed, and the
breach of them is an offence not merely against the person who is injured but
against society as a whole. Devlin believed that there was such a thing as
public morality.

12. Moralistic view contd.
 According to Devlin, an established morality is as necessary as good
government to the welfare of society. Societies disintegrate from within more
frequently than they are broken up by external pressures.’
 There is disintegration when no common morality is observed and history
shows that the loosening of moral bonds is often the first stage of
disintegration, so that society is justified in taking the same steps to preserve
its moral code as it does to preserve its government and other essential
institutions.

13. Moralistic view contd.
 “The suppression of vice is as much the laws business as the suppression of
subversive activities, it is no more possible to define a sphere of private
morality that it is to define one of private subversive activity.”
 ‘It is wrong to talk of private morality or of the law not being concerned with
immorality as such or to try to set rigid bounds to the part which the law may
play in the suppression of vice. There…can be no theoretical limits to
legislation against immorality.’

14. Moralistic view contd.
 ‘You may argue that if a man’s sins affect only himself it cannot be the
concern of society. If he chooses to get drunk every night in the privacy of his
own home, is anyone except himself the worse for it?’
 ‘But suppose a quarter or a half of the population got drunk every night, what
sort of society would it be? You cannot set a theoretical limit to the number
of people who can get drunk before society is entitled to legislate against
drunkenness.’

15. Lord Devlin’s argument outlined
 Morality is essential to the welfare of society.
 Morality is social, not private.
 It is the business of government to look after the welfare of society.
 So it is legitimate for government to pass laws on the basis of preserving
moral values.

16. The Paternalistic view
 The final theory is the most modern and is the Paternalistic view, harm to self
and others view as put forward by Professor Hart in the 1960s. His theory is
that the law should only intervene in the private lives of citizens to prevent
harm to others and harm to oneself. He did acknowledge that there was a
difficulty in defining harm but did acknowledge that it did not include moral
harm to oneself. An existing law illustrating this theory is the law which
prevent methods of prostitution. The Paternalistic view focuses very much on
the individual.

17. The Paternalistic view
 ‘The only freedom which deserves the name is
that of pursuing our own good in our own way.’
 Freedom and individuality are connected.
 ‘The free development of individuality is one of
the leading essentials of well-being.’
 Individuality and welfare are connected.
 Therefore, freedom is necessary to the welfare of
individuals.

18. The Paternalistic view
 Pursuing your own good in your own way is an ‘experiment of living’. To limit
these experiments on any grounds other than their causing harm to others is
mistaken and will harm society as a whole:
 To impose a way of life on moral grounds is to assume infallibility about moral
values.
 Bad ways of living might still have some insight or truth to them that we
would lose if we banned them. Diversity of lifestyles causes people to think
about how to live, which leads to better lives.
 Different people need to live different sorts of lives.

19. “What do you
think? Should
the law
enforce
morality?”

20. Read the following cases
 Shaw v. DPP (1967) AC 220
 Knuller v DPP (1973) AC 235
 Donoghue v Stevenson [1932] AC 562
 Mohamed v Moraine and Another (1995) 49 WIR 37