the relationship between law and morals.

1. COURSE CODE: GPR 100
COURESE TITITLE: LEGAL RESEARCH AND WRITING
QUESTION: Discuss the relationship between law and morals and consider whether the law ought
to uphold moral values
THERELATIONSHIPBETWEENLAWAND MORALS
INTRODUCTION
The word morality1 many will argue, that is the discernment between good and evil, right and
wrong, and the proper definitions of the distinctions between virtue and vice as well as the concept
of justice and crime. The definitions of law are diverse. the black’s law dictionary for instance
define law as “the aggregate of legislation, judicial precedents, and accepted legal principles; the
body of authoritative grounds of judicial and administrative actions; especially., the body of rules,
standards, and principles that the court of a particular jurisdiction apply in deciding controversies
brought them.”2 Law and morality are crucial in the society; their relationship has facilitated many
debates in the past. In this essay, my focus will be based on two schools of thoughts; the positivists
and the naturalists.
Theorists and philosophers in the past have made varying explanations regarding law and morality
including their relationships. Positivist for instance would argue that law is that which is made by
an authority to guide the conducts of society and exists separately from morals3. The validity of
1 Howard Adelman, ‘Morality and Ethics in Organizational Administration’(1991) 10 Journal of Business Ethics 665.
2 BRYAN GARNER, Black’s Law Dictionary (9, revised edn, WEST,2009).
3 Mark R MacGuigan,‘Law, Morals,and Positivism’(1961) 14 University of Toronto Law Journal 1.

2. 1
law according to them is based on legality, general obedience, threat of sanction and the
recognition of the bodies and processes which make laws as per the notion of social contract. To
them, that which is legal is valid and vice versa. This view by the legal positivism is a matter that
needs a critical analysis. Though the laws posited are generally obeyed and assist the rulers to
maintain the status quo, we must understand the conditions under which these laws are obeyed.
This ‘obedience’ in my view is one that is based on fear and not respect. If it is true that law should
not uphold morality, then what about immoral laws? Is the enforcement of these laws protect
human right which consist of natural rights too? Well, it is understandable to some extent. Jeremy
Bentham referred to natural rights as ‘nonsense upon stilts4.’ A view that make natural right to be
imaginary and non-existing rights. If the state for instance, fails to recognize these rights, how
would they protect them?
Contrarily, the naturalists affirm that law is that which comes from God or a supernatural being
and can be determined by men through reasoning or rationality. The conformity to the supernatural
being by men is what makes the law valid. The assertion by the naturalists is that law must be
guided by moral principles. Though the naturalists’ belief that laws come from a Devine authority5,
they also recognize the existence of man-made laws. However, these laws must adhere to the issue
of justice, ethics, human rights and morals.
The issue of whether laws should uphold morality is a topic that cannot be ignored. If we for
example, analyze the impact of the second world war specifically in Germany6, we will affirm that
the morality towards law and order of the society is paramount to a regime or a legal system. We
cannot justify the discriminative laws that the German soldiers enforced while committing
atrocities or genocide on the Jews, that in fact led to the Nuremburg trials and prosecutions7. Even
though the law is obtained through social contract, it is reasonable that people should consent to
the rule of law that uphold their social values and morals. The legitimacy drawn from the social
contract will fail to exist if the law doesn’t reflect the bases upon entering the contract.
4 Bhikhu Parekh, Jeremy Bentham: Ten Critical Essays (Routledge 2013).
5 David L Gregory, ‘St. Thomas Aquinas,Jacques Maritain,and Law’ (2000) 40 Catholic Lawyer 381.
6 JO Collins,‘War Crimes Trials’(1948) 1948 JAGJournal 15.
7 Dina Ghandy McIntyre, ‘Symposium: War Crimes Trials Note’ (1962) 24 University of Pittsburgh Law Review 73.

3. 2
A good approach to the relationship between law and morals can be drawn from the debate between
the H.L.A. Hart v Lord Devlin8. Lord Devlin in his lectures on ‘the enforcement of morals’
introduces us to the concepts on which laws should be based. He believed that the criminal laws
should not only protect individual from harm, but also the society. The virtue of consensus that a
society reaches regarding the morals that should apply must govern the society. These morals
according to Devlin are determined by what a ‘reasonable man’ thinks on the street, and so the
society needs not to adopt any Christian values to recognize them. The law therefore must uphold
the consent of the majority regarding the socially shared morals that uphold to decency, in order
to control immoral behaviors which may have reached the limit of intolerance, indignation and
disgust.
While responding to the ideas of Devlin, Hart introduces a pragmatic approach in his legal
positivism. He criticizes the legal moralism idea of Devlin that it is categorically equating a society
its values. However, this idea in my view is correct because Lord Devlin personally defined a
society as “something more than people living in proximity to each other in a state of peace.9” To
Hart, laws should protect the liberty of all persons in their public and private life.it should not be
perceived that only the popular moral consensus of the majority should be upheld by law. the
utilitarian principle ought to regulate shared social morals and prevent potential harm to both
individual and the community as a whole.it is though difficult to understand this perspective by
Hart10. It raises questions that cannot be ignored by any rational thinker. Did professor H.L.A. Hart
ever considered the behaviors’ that happen in privacy such homosexuality, pornography and
incest? Well, it may be true that these conduct affect personal lives of only the participants, but
they are morally wrong and to some extent the intervention of laws must prevail to preserve the
moral fabric of the society.
CONLUSION
8 Ronald Dworkin, ‘Lord Devlin and the Enforcement of Morals’(1966) 75 The Yale Law Journal 986.
9 Judy R Potter, ‘Sex Offenses Commentaries on the Maine Criminal Code’(1976) 28 MaineLaw Review 65.
10 ‘Law Journal Library - HeinOnline.Org’
<http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.journals/cathl40&id=410&size=2&collection
=journals&terms=MORALITY|Thomas|THOMAS%20AQUINAS|Aquinas|Thomas%20Aquinas|Morality&termtype=p
hrase&set_as_cursor=0>accessed 20 December 2017.

4. 3
Law should promote an effective social order and protect the community. From the above
explanations, it is justifiable to conclude that moral values forms the basis of the society which
promote for social integration, interaction, trust and the interest of the societal members.it is
therefore important for these moral values to be given priority in legal processes to prevent
harm/potential harm and preserve the full function of the society. In protecting people from hurting
each other as proposed by legal positivists, there is need for the law to provide for an environment
in which people do not hurt each other. The public must believe that the law is consistent with
their moral values for that law to have its legitimacy and efficacy. It is my contention that there is
a close relationship between law and morality. Human rights and proper democracy can only be
provided for though enforcement of moral laws which conform to the requirements of religion and
the social control institutions. Therefore, the law should uphold moral values and principles.
BIBLIOGRAPHY
Adelman H, ‘Morality and Ethics in Organizational Administration’ (1991) 10 Journal of
Business Ethics 665
BRYAN GARNER, Black’s Law Dictionary (9, revised edn, WEST,2009)
Collins JO, ‘War Crimes Trials’ (1948) 1948 JAG Journal 15
Dworkin R, ‘Lord Devlin and the Enforcement of Morals’ (1966) 75 The Yale Law Journal 986
Gregory DL, ‘St. Thomas Aquinas, Jacques Maritain, and Law’ (2000) 40 Catholic Lawyer 381
‘Law Journal Library - HeinOnline.Org’
<http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.journals/cathl40&id=410&
size=2&collection=journals&terms=MORALITY|Thomas|THOMAS%20AQUINAS|Aquinas|Th
omas%20Aquinas|Morality&termtype=phrase&set_as_cursor=0> accessed 20 December 2017
MacGuigan MR, ‘Law, Morals, and Positivism’ (1961) 14 University of Toronto Law Journal 1
McIntyre DG, ‘Symposium: War Crimes Trials Note’ (1962) 24 University of Pittsburgh Law
Review 73
Parekh B, Jeremy Bentham: Ten Critical Essays (Routledge 2013)
Potter JR, ‘Sex Offenses Commentaries on the Maine Criminal Code’ (1976) 28 Maine Law
Review 65