LAW & MORALS
Sir John Salmond defined law as “the set of principles recognised and applied by the state in the administration of justice.” Legal rules require compulsory compliance (for example, The Theft Act 1968) and, if a breach occurs, the offender can face serious punishment (for example loss of liberty.)
Morals, however, are personal to each individual. They can be voluntarily compiled with, and enforcement is informal. Phil Harris defined morals as “a set of beliefs, values, principles and standards of behaviour.” Moral opinions usually develop over a long period of time (for example, the growing social acceptance of homosexuality.)
Moral values are influenced by many different factors, for example, society. Moral beliefs are culturally relative: for example, the UK is a monogamous society however, in other cultures polygamy is both legally and morally acceptable.
Religion also has a huge influence on moral values. The main religion in the UK is Christianity, for which the Bible provides a moral code. Many of these principles are embodied in the legal system too. For example murder is both illegal and immoral. However, the Bible states that suicide and abortion are morally wrong, even though both are now legal in the UK.
The changing attitudes of society invariably influence morals. The input of political figures, the media and celebrities has some influence as well. For example, the decision in 1991 R v R that a husband could now be convicted of raping his wife was clearly a result of the changing moral attitudes in society, that women were now considered equal to me.Finally, the situational circumstances may mitigate the moral blameworthiness of a particular situation. For example, in the Tony Bland case, the House of Lords decided it would be immoral to keep Bland alive.
Many laws are introduced as a resultof the changing attitudes of society. Conduct which was legal can be made illegal (such as fox hunting and smoking in public places) and conversely previously illegal conduct can be legalised (such as homosexuality/abortion).
The legislative reforms of the 1960’s can be said to reflect the changing moral attitudes of society. As homosexuality became more socially acceptable, the legislature responded with the 1967 Sex Offences Act, which legalised homosexuality in the UK. However, there are some laws with no moral content, parking laws, for example.
Sometimes, laws are introduced with the aim of educating the public to consider certain behaviour morally wrong. This can be said of both the Sex Discriminations Act, and the Disability Discrimination Act. However, as we live in a pluralistic society, there is rarely a consensus on any moral issues. For example, even though abortion is legal to some it will always be morally wrong.
There is a very broad overlap between law and morals and this is probably because they are both concerned to impose certain standards of behaviour. However, there are large areas of divergence too. For example, there is no legal obligation to help someone who is in danger, but there is a moral one.
Should law be used to uphold morality? This is a very controversial question. If something is immoral, should it be illegal too? To the person who holds strong moral values this is the natural conclusion. However, moral opinions are simply those: opinions, and are not shared by everybody. We live in a democracy and the idea is that the government produces laws which represent the majority, therefore it can be hoped that they represent the moral view of the majority too.
There are many different theories about whether or not law should be used to uphold morality. Natural law theorists would argue that law should strongly reflect morality. There is a higher law, from which society should draw both its legal and moral code. Laws are not drawn from this higher law are considered unjust and need not be obeyed (e.g. the payment of the Poll Tax in the 1980’s was considered unjust). However, many people disagree on the content of this higher law, even if they agree it exists at all.
Utilitarianism offers a more scientific approach, due to the decline in the social importance of religion. John Stuart Mill was a believer in utilitarianism and he stated that an individual should be free to choose his own conduct, so long as he does not harm others in doing so. It is believed that this would achieve“the greatest happiness for the greatest number.” However, are there really any crimes without victims? Drug abuse may seem like a victimless crime; however the majority of robberies and burglaries are committed to fund drug addiction.
The issue of whether or not law should enforce morality was debated in the later 1950’s when there was a perceived decline in sexual morality. Much debated was triggered by the publication of the Wolfenden report, which recommended the legislation of homosexuality and prostitution. Central to the debate were Lord Devlin (a leading judge), and Professor Hart.
Devlin opposed the reports findings and believed that law should enforce morality. He believed that immorality can be judged by the standard of the right minded person (i.e. the person in the jury) and that punishment should be reserved for that which creates disgust amongst right minded people. He stated that the law should lay down a basic moral code and society’s standards should be higher.
Case decisions supporting Devlin’s views have been made in Brown (defendants convicted of ABH and GBH s.20 and s.47) and Gibson and Silverie (convicted of outraging public decency). However, there is always the danger that laws are passed that conform to the morality of small groups that hold influence (like Lord Devlin).
Professor Hart stated that using law to uphold morality was undesirable, unnecessary and unacceptable. He stated that, when people object to unusual behaviour, this response is rarely prompted by morals, and often by prejudice and misunderstanding (in R v Brown for example).
Case decisions supporting Harts view were made in Gillick ( the House of Lords said it would be immoral to refuse contraception to girls under 16), and Fitzpatrick ( the term ‘family’ in the Rent Act can now be used to cover any relationship of mutual love and care.)
Should Judges make law? - JUDICIAL CREATIVITY
According to the separation of powers philosophy (developed by Montesquieu) No! It is the prerogative of Parliament to make law, judges should only apply it. Lord Esher supports this traditional view that judges should not create law. However, Lord Radcliffe takes a more modern approach in saying, “of course he does, how can he not?” This view is shared by Lord Reid who stated that “we must accept, for better or for worse, that judges do make law.” There can be no doubt that Lord Reid and Lord Radcliffe were right, judges do create law. They do this in 3 ways. For example, applying case law to new situations (e.g. when the ‘slow burn effect’ was introduced in Ahluwalia) Judges also create law through original precedent (as in Brown). Finally judges create law as well, in statutory interpretation. For example, in Stevens V Gourley a judge defined the term ‘building’ (found in s.9 Theft Act 1968) as ‘a structure of considerable size intended to be permanent.’
There are many positive effects of judicial creativity. Firstly, it allows the law to change quickly as the process of passing a bill through Parliament can be extremely time consuming. Also, it allows the law to grow and meet new situations because when drafting the act, Parliament cannot possibly provide for all future contingencies (e. g Bland)
However, judges are only meant to apply the law, giving them too much power does not respect the separation of powers. Also judicial creativity applies the law retrospectively. For example, the defendant in R v R was not committing an illegal act at the time he committed it.
The use of precedent allows judges a lot of creativity. However, courts are bound by decisions from courts higher in the hierarchy, and most are bound by their own decisions. Since the 1966 Practice Statement, the House of Lords can depart from a previous decision “when it appears right to do so.” This power has been used sparingly however it was used in R v R & G to abolish Caldwell Recklessness (except for use in dangerous driving offences.)
Through precedent, there are 3 ways in which a judge can create law. Firstly, a decision in a case can be reversed. Also, cases can overrule each other, thus changing the precedent (Hinks overruled Mazo). In addition to this, if the facts of a case are different to the precedent, it can be distinguished (Wilson was distinguished from Brown).
Judges can also create law through Statutory Interpretation; however, here they have less opportunity to be creative. When interpreting a statute, judges have a number of aids at their disposal: Intrinsic aids (e. g other parts of the act) and extrinsic aids (e. g Hansard).There are 3 main rules or approaches that can be used when interpreting a statute: the literal rule, golden rule and mischief rule.
The literal rule is used when a judge gives each word in the act its plain, ordinary meaning and applies it to the case in front of him. This rule was used in LNER v Berriman, and in Chappel v Whitely.
This literal approach leaves law making to Parliament theelected law making body) doesn’t give judges too much power, and produces consistent decisions. However, sometimes it does produce absurd decisions (such as in Berriman). Morally, the deceased’s wife should have received compensation. However, the judge said she was not entitles to anything as her husband had been ‘maintaining’ the train track when he dies, and the wording in the act was “repairing or relaying.”
The golden rule is often used when the use of the literal rule produces an absurd result. For example , in Sigsworth: if the literal rule had been used, under the administration of Estates Act 1925, the Defendant, who killed his mother, would have stood to inherit her entire estate.
The mischief rule is the most creative approach to statutory interpretation. Here, the judge tries to decide what Parliament intended when they passed the act, and looks to fill the gap in the law. This rule was used in Smith v Hughes when prostitutes where soliciting from windows and balconies, and the wording in the act was that they were not permitted to solicit “in the street.”
The mischief rule prevents absurd decisions and tries to follow Parliaments intentions. However, how can judges possibly know what Parliament intended? Also, this rule does not respect the separation of powers and is often criticised for giving judges too much power. Many theorists have strong opinions on whether or not judges make law. Professor Hart is a firm believer that judges do make law, however his opinion is disputed by Dworkin. Dworkin states that judges do not make law. When there are no legal rules on a case, the judge looks at similar cases, consults his own sense of justice and applies principles already in existence.
Dworkin made an important distinction between principles and matters of policy. He states that judges could use principles as they are opinions already in existence. However, policy issues are involved with the social, political or economic well being of society and should be left to Parliament.
Lord Brown-Wilkinson agreed with this view in the Tony Bland case. He stated that the judges consulted the principle (that it was unfair to keep Tony Bland alive) and did not make a policy decision to legalise euthanasia, as this should be left to Parliament.
It is obvious that there is a role for both the judiciary and Parliament in law making. There are areas of law (for example criminal law: fatal offences such as UDAM/GNM are entirely judge created) in which Parliament has chosen to become increasingly less involved. However, the law commission was set up by Parliament to assess the law and propose reforms. Parliament could implement these reforms whenever it wanted to.
Therefore is there really anything anti-democratic in judge made law, as long as, ultimately, Parliament has the right to overrule any decision made by the judiciary[WC1]?
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