A Critical Analysis of the Relationship between Law and Morality

Table of Contents

Introduction
Morality

The Major Themes of the Research Project
The Relationship between Law and Morality
The Difference between Law and Morality
The Concept of Euthanasia

Why Moral Law Relating To Euthanasia Is Suitable For In-Depth Analysis

Euthanasia as Murder
Right to Die
Autonomy
R (Pretty) V DPP

Three Theories Dealing With Law and Morality
Liberal View, Discusses Harm To Others. John Stuart Mill 1859
Moralistic View Harm So Society Principles. Lord Devlin 1960 & R V Brown & Others
RV Brown
Paternalistic View - Harm to Self & Others; Professor Hart 1960 “Focus on the Individual”
Analysis of the Groundwork of the Metaphysics of Morals - Immanuel Kant

Conclusion

Bibliography

Introduction

The Concept of Law refers to the body of rules of conduct in the society of a binding legal force and effect, prescribed, recognized, and enforced by the supreme authority. The Law acts as a glue that binds a specific community by imposing penalties on the recidivists. The Law is always enacted by the supreme body in a particular nation and the enactment without any powers renders the law void. In the UK, the parliament is bestowed with authorities to enact laws and ensure the protection of human rights.¹ This makes Law the body of rules backed by sanctions.

The citizens of a specific country cannot merely infringe the provisions of the Law as this amounts to the punishment. Article 2 of the European Convention of Human Rights provides for the right to life and shall be protected by the Law. It extends that no one shall be dispossessed of his life deliberately.² If the debtor raises the defence of receiving the indebtedness in the money in good faith, then the debtor can be given little time to settle the debts without being jailed. The UK parliament as the lawmaking body established the Supreme Court as the last appellate court in regards to any suits.³ For this matter, the Supreme Court and its primary functions are to interpret that Law and protect the rights of the citizens. The judges are always vigilant in making their decisions by considering the provisions of the European Convention on Human Rights.

The legal system as a body of command must involve a network of rules.⁴ The essence of being ruled is not enough to differentiate a judicial order from any other social institution which employs the standards of justification. Hart, a philosopher of Law, recognized that the unique structure of the legal system could not comprise in its being merely a mere system of rules. Accordingly, to account for the distinguishing features of the legal system, Hart introduced several additional elements into his examination.⁵ The first addition is the affirmation that Law is the unification of two distinct types of rules and Hart termed them the primary and secondary elements. Also, provisions of the central type deal with the actions involving the physical movement or the changes. In the more profound highlight, the second type of rules specifies how the laws of the first type are to be formulated, interpreted, applied, amended, and abolished. The first rules ensure the regulation of the behaviour whereas the secondary controls are responsible for regulating or informing and coordinating other laws.

According to John Austin, in his submission in the positivistic school of view, the Law is a set of rules that govern a community. They are designed by those in the top authorities to help them rule their subordinates. He added that the Law refers to the mechanism through which the top authorities communicate their needs to the community by providing sanctions for the offences committed by their subordinates. This implies that the Law is the rule that is designed by humans to suit their needs. Austin views the Law as the mere expression of a desire of the sovereign people in a particular state.⁶ For instance, the sovereign may say that it would prefer their subordinates to do something that may or may not benefit the people doing such a job. The state may incorporate the issue such as the payment of taxes by starting from a specified date. Interestingly, these desires are backed up by the credible use of threat or force or, and there is always assured of punishment for those who oppose the move.

The Law depends upon the wishes of the political authority as the sovereign body. This implies that every rule that emerges as originating from the sovereign becomes a command.⁷ As such, Law is a variety of commands that are designed by the monarch. For instance, a person of the higher rank in the community who proposes to do or refrain from something expresses their intimation, and such wish becomes a command. In this regard, the subordinates are obligated to adhere to such authorities.

Every legal system must provide for the penalties for the crimes that such Law prohibits in a particular country. The sanction is an evil that will be incurred if the set of commands or the rules are disobeyed and encompasses how the powers or duties are enforced. As such, the notion of sanction is broader than punishment. The reward for submitting to the command can hardly be called the penalty.⁸ The control embraces issues such as the wish or desire perceived by the rational being to another sensible person who can do or forbears the commanded individuals. Besides, the evil to advance from the former to be experienced by the latter in case of noncompliance. Also, the intimidation or expression of the will by the words. This implies that the command relates to the rules or Law that obliges people generally to forbearances. Law as a command obligates persons to a course of conduct, and the penalties are associated with deterring resistance to meet such manner. It requires sense and can only emanate from the determinable source or the author. As such, the body of command proceeds from the superiors binds and obligate the inferiors. The superiors are bestowed with the power of affecting others with evil or pain and of forcing them to conform to their conduct to their set of orders. Therefore, the notion of Law in regards to John Austin's view is the set of rules that protects the desires of the sovereign.

In contrast to the above, the proposition that all the laws are commands to some extent has limitations. This because some rules provide for the amendment and the enactment processes but do not affect lifestyles in the community. Besides, some of the Act highlights only the favourable laws that are declaratory of the existing laws. Also, the repealing statutes are always present that shape the commands. Law of imperfection should contain effective sanction such as the rules of morality or rules of universal Law.

In the separate view, the Concept of Law is the body of the rule that came from God and man promotes the principles already laid down by God. God gave the Ten Commandments to Moses and Moses delivered them to the men for guidance throughout the wilderness.⁹ The chief proponent in the natural law school of Law is Thomas Aquinas whose works support the origin of Law as to have come from God.

Morality

The notion of morality is something quite hard to define that to describe. In the normative sense, righteousness entails the code of conduct that can be accepted by anyone who meets certain logical and volitional circumstances that almost always including the condition of being rational.¹⁰ The person meets these conditions of morality is typically conveyed by saying that the person counts as the moral agent. In a different view, the mere act portraying a certain level code would be accepted by any moral agent is not enough to show that the system is the moral code. It is clear that all moral agents would also take a code of prudence or rationality, but this would not by itself show that caution was part of morality.

The Law can only be distinguished from the essence of morality by having clear written rules, penalties, and the officials who can expressly interpret the laws and impose the sanctions.¹¹ Even though there is always a considerable overlap in the conduct directed by morality and that overseen by Law, rules are usually evaluated and changed on the moral grounds. On the same note, some of the prominent theorists like Ronald Dworkin have even asserted that the interpretation of Law must make use of morality. Law and morality operate in conformity with one another and morality are governed by the Law. In the same way, good morals encourage the enactment of the moral codes in the community. This implies that in a society where there is no conscience, the legislators make laws that ruin the neighbourhood. For instance, wicked legislators can ensure the passing of the Law that supports human sacrifice. Therefore, there is an open relationship between the legal systems and the people enforcing the rules in a particular state.

The Law affects every aspect of life since it governs the conduct of the societal members from the foundation to the critical level and it also influences and extends from birth to after our death time. In every developed society, a very complicated body of rules to control the activities of its members are enacted and implemented. These laws govern the working conditions by laying down the minimum standards of health and safety. Law also covers the moral lifestyles in the community such as the banning of alcohol on coaches and the trains that are travelling to football matches. Other laws have extended provisions that control personal relationships and prohibits incestuous marriages.¹² Given the above, in the absence of Law, there would be rotten community members since there would be laws that degrade society. For instance, without the requirement that provides for the prohibition of the marriage between the relatives, it could be existing across different races worldwide.

The sense of the self-enforcement is based upon the belief that one has the legal system of the moral obligation to do as the judge instructs. Also, appeal to an honest opinion does not reverse the underlying fact that in this situation the appeal operates as a mechanism of law enforcement. More significantly, there is no absurdity in the notion of the moral system which specifies that certain classes of the wrongdoer need to be punished by the implementation of the physical sanctions. As such, the fact that the practice of such penalties for a moral resolve may itself be a legal offence cannot invalidate this point. The deviation of the individuals from performing the ethical principles results in the rise of immoral activates such as murder, evil, prostitution, and rape among others.

Morality is defined as the rule of man's character in an attempt to attain a considerable rate of happiness. In relation, happiness and misery consist of pleasure and pain. In the opposite view, there has been an incorrect inference that whatever produces comfort can be considered moral and whatever produces pain is immoral.¹³ This inference can only be made by changing the causal sequence that Locke explicitly relied on. The utility cannot be considered the basis of the Law or ground of obligation but rather the consequence of the obedience to the Law. Locke's position is expressed that there may be indeed a self-indulgent motivation to the moral action and the observance of the Law of nature. This does not necessarily destroy the objective status of that particular Law. The Law remains constant to man, and the tenets of Law are not dependent upon its consequences. Singh dissipates this assertion although he defines good and evil in regards to pain and pleasure.¹⁴ To Singh, pleasure and pain are the consequences of the morally right action, and they do not constitute its essence. The moral Law is considered eternal and universal, and it is obligatorily independent of its pleasurable consequence.

The Major Themes of the Research Project

The essence of morality is the area of philosophy concerned with theories of ethics and the ways we ought to live our lives in regards to the Law. Metaethics is the covers the moral philosophy and deals with the queries regarding the nature of morality. Normative ethics focus on providing a good outline that can be used to work out what classes of actions are good and evil, right and wrong. Lastly, applied ethics seeks to apply normative ethical theories to specific cases to tell us what is right and wrong. This analysis aims to investigate the relationship between Law and morality and whether the connection is necessary. Thomas Aquinas, the proponent of the law theory, defended the connection between Law and morality claiming a biased law is not an actual law as it does not change itself to legal validity. The legal positivism theory defends the legality and decency are different, considering legislation cannot be reduced to moral, as it exists independently. Immanuel Kant established that the most basic aim of moral philosophy is to seek out the foundational principle of a metaphysics of morals and believed that we as humans are free and autonomous as long as morality, itself, is not an illusion. In this project. In this project, I will be analyzing the relationship between morality and the Law, emotive topics concerning euthanasia and whether it should be legalized in England including arguments for and against referring to philosophy and case law. I will be looking at the issue from an ethical perspective, raising many legal matters including the right to life, the right to liberty and the rights and duties of doctors as well as opposing views taken by religious people referring to case law throughout.

The Relationship between Law and Morality

In analyzing the theory laid by Immanuel Kant, the distinction between Law and morals is to be realized from the fact that the Constitution controls the external relations of men while morality manages their inner life and motivation in the society.¹⁵ In the case of Pretty v United Kingdom, the court stated that it is difficult to separate the legal and moral. As a result of that ruling, it becomes easy to understand that Law and morality are similar entities. As asserted, the disagreement between the bodies of positivism and the natural law theory is the perception of whether it is relevant to establish a connection between them.

The natural law theory regards Law as the central Concept of morality legitimate power and is morally neutral to the essence of power.¹⁶ This shows that there are the main concepts between the Law and honesty that make them operate concurrently. Judges always contemplate the provisions of both the Law and the moral principles before uttering their decisions in every case concerning the Law and morality. The natural law theory attempts to push the argument further and to declare that human beings are likewise devoted to and united in their conception of aims (the pursuit of knowledge, justice to their fellow men) other than that of survival13. Therefore, Law and morality are interrelated to the extent that the existence of one corroborates the presence of the other.

In the essence of both morality and Law, humans are obligated to take care of their neighbors from both attacks and protecting them from the eradicating deeds that affect others. Morality prohibits the indecent act of misbehaving to others and to Law it amounts to the punishment. Lord Atkin, in Donoghue v Stevenson, stated a legal principle from the moral principle, deliberately modifying the latter to the requirements of the former. “If morality pronounces that I should love my neighbor, the Law requires that I must not injure my neighbor,” Atkin.¹⁷ In the Law, the neighbor is everyone so closely and directly that can be affected by the act of the neighbor. In this sense, Lord Atkin draws a firm connection between the legal system and the Law which introduces their correlation of the two entities. In the case of Stevenson v Donoghue, the plaintiff took the drinks manufactured by the defendants. The drink contained decomposed snail. Consequently, the plaintiff suffered from the shock at the sight of the snail.¹⁸ Court held that every person is obligated to take care of another and the neighbor owes such duty even in the absence of the existing contract between the manufacturer and the consumer. Given the facts above, Law and morality consider the relationship between the humans in the community. Both morality and Law direct the manufacturers of the consumables or the manufacturers As such, both Law and honesty are the fundamental entities for the development of the community since they both mandatorily prohibit immoral acts such as murder. Several tort and criminal law provisions address the general obligation that one's neighbours should be morally and legally protected.

This kind of social relationship provided by both morality and Law brings about the sense of connection between the two concepts. For instance, these relationships can be constructed on the universal adherence to the beliefs, positive sharing of moral, spiritual, ideological or intellectual commitments. This means that a community cannot be one if both the Law and the ethical principles are not connected. Therefore, society is built on the concurrent operation of legal and moral principles.

The proponents of the positivism state that Law and morality are mostly separate entities.¹⁹ In contrast, the proponents of natural law theory asserted that Law and morality should operate synchronously. Law and honesty are the close entities that each cannot function without the presence of the other.²⁰ Good morals help in designing good laws and wrong morals are associated with the enactment of immoral acts and vice versa. Therefore, Law and morality are the related entities that each supports the presence of another.

Law is generally a set of principles enacted and enforced by the sovereigns while morals are the little set of beliefs and the behavioural standards which are created and enforced ty the societal members. The parliament is the only recognized arm of government responsible for the making of the laws. For instance, section 122 of the Constitution matches with the provisions on the rules in the UK that the federal parliament is the only authorized body conferred with powers to enact laws for the territories in Australia.²¹ These powers made the national parliament to give the region's self-government by passing the Northern Territory or the Self-Government Act 1978 and also the Australian Capital Territory Act 1988. As such, the parliament is always bestowed with the powers to enact laws for the country. For proper administration of the country, other authorities have been allowed to enact subsidiary legislations inform of the orders, ordinances, decrees among others. On the same note, morality is communally made primarily by the elders of the community. Honesty in the more profound sense rises from the village although the Law ensures the regulation of the moral characters of the societal members.

In the real sense, the Law overrules and governs the morality in a particular country. Morals come from the communal setting and are not made by the recognized authorities, and most of the morals fall under the unwritten laws or the Customary Law. Courts cannot entertain customary laws that are repugnant to the already written constitutions. This means that morals that are against the laws enacted by the recognized authority are always scrapped off the community and declared illegal. For instance, in case a person commits incestuous marriage, the elders of the community gather and impose some slight penalty on the offender and yet in most of the countries, it leads to imprisonment under the Law. This indicates that the societal punishment for the offences is less than the penalty under the Law. The Law imposes sanctions on the offenders whose moral degrade the community. in the case of Shaw v Director of Public Prosecutions 1962 AC 220, Lord Reid said stated that Court House would decide it in that conspiracy to corrupt public morals is a crime known to the Law of England. Therefore, the Law enforces good morals in the community and prohibits individuals from committing crimes.

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² European Convention of Human Rights. Retrieved from https://www.echr.coe.int/Documents/Convention_ENG.pdf%23page=9

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