Liberty is the true path to morality - Essay Example

Liberty is the true path to morality Legal principles are based on morality. ‘Classical common law treated a community and its morality as the cultural foundation of law’ (2000). Therefore, today’s legal system is based on moral values from both the countries past and present environment. Can this relationship between legal and moral values lead to reverse equality? Should laws be instituted to require society to have morals and whose morals should the laws be based on? Should the government place itself in a position to enforce public morality? These questions and more arise when one speaks of the relationship between law and morality. Undoubtedly, law and morality are closely connected and intersect in many spheres of public concern, such as euthanasia, drugs, prostitution, immigration, sexuality, etc. Especially in the United Kingdom, where the rights and freedoms of people have a particular history. The colonial law must look to be replaced to provide for more diverse communities that co-exist. The immigration laws of 1962 and 1996, which were used to keep Asian and Blacks from either entering the United Kingdom or preventing them from working without applying for work vouchers, is an example of an abuse of power under the guise of upholding a pretentious morality. This example should allow one to question the basis of morality, if it is to continue to be imbedded in the structures of law. Legalized prostitution and homosexual activity all fall into the realms of morality. How is the legal system to appropriately regulate or enforce laws against or to promote such behaviour? Question whether law should enforce morality was discussed by different philosophers. Those give an affirmative answer to this question are called “legal moralist.” The most famous legal moralist is Patrick Devlin. As the Internet Encyclopaedia of Philosophy explains, this is the view “that the law can legitimately be used to prohibit behaviours that conflict with society’s collective moral judgments even when those behaviours do not result in physical or psychological harm to other” (2005). Simply put, it is possible for the government to restrict an individual’s freedom if it conflicts with society’s collective morality. This in itself can lead to deeper and more profound questions and analyses’. As society’s collective morality can be influenced by a variety of factors, some of which could be considered arbitrary and fleeting. Examples of such factors could be the media and those with strong political influence. By allowing the state to enforce morality, a number of questions must be answered. First and foremost, in what manner do these moral laws relate to the Constitution and the right of individual freedom? People have free will and the right to choose for themselves, to choose their own morality and ethics and their own way of life, as long as no one is harmed. Another question to address is the reasoning that the morals that are being enforced by law based upon? Those writing law can consciously or unconsciously provide their own interpretation of morality in the legal doctrine. Milsted writes, “Democracy represents the people in the middle. The government represents the immoral as well as the moral. Thus, we can expect the government to be more moral than half the population and more immoral that the other half “(Milsted). It also should not be forgotten that law is not magic. Moral norm, which becomes a part of law, needs to be provided into the real life. Practice has shown that personal morality laws are general ineffective and can have very unpleasant sequels. “The war on drugs has led to higher crime, broken families, increased poverty, the clogging of the court system, the funding of international terrorism and higher taxes. Furthermore, the laws against prostitution have led to an increase in the abuse of women and the spread of deadly sexually transmitted diseases” (Milsted 2005). Lord Devlin in an essay entitled, Introduction to Law and Morality, is quoted as saying that a society requires a public morality. “A society is created by a sort of community of ideas, not only political ideas but ideas about the way the members of the society should behave and govern their lives” (2001). The institution of marriage was used as an example of this, in that a society has to choose whether they will govern themselves by the rules of monogamy or polygamy, as the society can not have both. Lord Devlin takes this example even further by stating that the institution of marriage would be damaged by morally accepting adultery, but that this is not a crime and should not be, yet the public and government should be compelled to protect itself and its valued institutions, such as marriage. A look at paternalism allows for a greater analysis of the role that morality should have within the legal system. Paternalism is the institution of laws that are meant to keep individuals from harming themselves, i.e., the use of drugs, gun laws, euthanasia, etc. In the case of drugs, guns and euthanasia, according to English law the victim’s consent is not necessary to press criminal charges. This can be a point of contention, as it can be seen as the legal system being used to uphold certain standards of behaviour. In the case of euthanasia, should it be legal to prosecute someone for carrying out a dying and suffering person’s wishes to choose their date of death? Many argue that the legalization of certain morally questionable acts can create regulation and decrease certain unwanted symptoms that they cause when done. For example, the legalisation of drugs can make it more acceptable for drug addicts to seek treatment and prevent the transmitting of diseases by preventing drug users from sharing needles, etc. “The argument against legal enforcement of morality is driven by moral relativism and post modernism. Unless, we are willing to say that the current morality is the one true righteous morality, free of socially constructed and changeable influences, we should be wary of enforcing morality through law”(Sylla 2005). Law and morality are inherently related and interdependent. The question of how much morality should affect our laws is difficult. It is difficult in part because one morality does not necessarily speak to the problems that societies face today. In the past, laws were based on religious ethics and beliefs. This is not sufficient today and can not be used as a measure of law. Unlike the past, there is not one religion or homogenous group of people to develop law for. Various groups of individuals with different religions, ways of living and morals co-exist in close communities. The only thing that is apparent when addressing morality and law is that law must be created to allow for a diverse form of recognition and protection (2000). REFERENCE LIST Cotterrell R., Common Law Approaches to the Relationship Between Law and Morality, March 2000, viewed 06/17/05, www.ingentaconnect.com/content Introduction to Law and Morality, 2001, viewed 06/17/05, www.law-essays-uk.com Minutes for Social Theory of Law, 2003, viewed 06/16/05, www.warwick.ac.uk Beckford, Jim, 2004, Collective Behaviour and Social Movements, viewed 06/18/05, www2.warwick.ac.uk/fac/soc The Degrading of Human Dignity-A short history of British Immigration Acts of 1962-1996, April 18 2000, viewed 06/17/05, www.ncadc.org.uk/archives Milsted, Carl S., On Enforcing Morality, Holistic Politics, May 4 2005, viewed 06/15/05 www.holisticpolitics.org/Morality/Excellence.php Philosophy of Law, The Internet Encyclopaedia of Philosophy, 2001, viewed 06/15/05., www.iep.utm.edu/l/law-phil.htm Sylla, Mary, Law, Morality and Sodomy: The Bowers Majority in Bed with Lord Devlin, National Journal of Sexual Orientation Law, Vol4, pp 54-60, May 4 2005, viewed 06/17/05, www.ibiblio.org/gaylaw/issue6/sylla.htm Read More