In civilised life,law floats in a sea of ethics.
——Earl Warren
There is an intricate relationship between law and morality.For sure,they overlap.The question is:When do they not overlap? When does law enforce morals and when does it not?
In the first place,what is morality? Morality refers to principles or values to discern if conduct is right or wrong,good or bad (or evil).The contrasting terms virtue and vice are sometimes mentioned in definitions.Let us say morality is concerned with values of good and evil.
Another preliminary question is,whose moral values does the law enforce? A spontaneous answer — that of the majority.In general,the minority has to abide by the will of the majority.That is how any grouping of persons works.
As regards legislation,on a proposed piece of law,the members of parliament will debate its pros and cons,including the moral aspects.The members of parliament represent their constituents,including the values shared by the latter.
Morality may be enforced by the courts.For example,in a negligence case,a judge may have to grapple with whether moral policy dictates that the claim should be disallowed.For instance,in a claim by a mother for an unwanted baby(doctor being negligent in performing ligation or vasectomy),the judge may reject such a claim on the moral ground that it goes against the sanctity of life.
In the contractual realm,a judge may have to decide if a particular contract is invalid because it tends to corrupt public morals,such as a contract involving child pornography.A point to note is that while the judge should objectively ascertain what society’s stand on the particular moral issue is,sometimes,he may be subconsciously asserting his personal position on the matter instead.
The majority view should generally prevail.But where diversity should be encouraged or tolerated,or where it is unjust to impose the will of the majority on the minority,the will of the latter should be respected.An interesting example is the exempting,in some countries,of male Sikh motorcyclists from the requirement of wearing helmets on religious grounds.
Next,it should be pointed out that in countries governed by a religious system,such as Islamic countries,there is unity of religion and law.The religious(and moral) principles become and are the law.
In secular society,however,the law at times enforces morals and at times,it does not.As regards the former,there is an expectation that law is not too far removed from morality.In the latter situation,it is thought sufficient or desirable to leave the influencing of behavior to the religious or cultural workings of society.
So how and when does the law draw the line between legally enforceable morals and morals which are not? There are several yardsticks or distinctions.
First,a rough line is drawn between doing good and not doing evil.Morality encourages a person both to do good as well as not to do evil.In general,the law only commands a person not to do evil or not to cause harm (such as to kill or to steal).So,a person who is unforgiving,ungenerous or unkind may earn the rebuke or chastisement of his religious leader but he gets no reproof from the law.Quite simply,the law does not require from each of us love or good deeds.
Secondly,the law may in fact permit what the majority in society agree is undesirable and evil.An example is legalised gambling.Each country typically has laws which make gambling an offence and yet provides for licensed gambling,often run by the state.Other situations include prostitution and alcohol consumption.It seems the law,as a matter of practicability (and even revenue generation),tolerates certain unavoidable evils.
Thirdly,the law is concerned with wrongful conduct that results in outward or external harm.In general,a crime requires both the mental element ( mens rea )and the physical element ( actus reus ).Evil thoughts and intentions alone do not attract legal liability.In tort and contract,damage is usually required.In contrast,under moral norms,an evil thought itself may be a wrong.For example,in New Testament Christian teaching,a man who has adulterous thoughts towards a woman is guilty of sin.In this regard,morality has a much wider ambit than law.
Broadly speaking,we see three categories in the interaction of morality and law.First,there are moral wrongs which the law clearly frowns upon and proscribes.These include killing,kidnapping,robbery,cheating,assault and a host of other wrongs.At the other end,there are shortfalls the law does not deal with,like the failure to be noble,merciful or sacrificial.In the middle,there is an intermediate or grey zone where it is very debatable whether the law should enforce morals.
Good Samaritan laws are an interesting example of this grey zone.A Good Samaritan law requires a person to go to the aid of another who is in danger of grave physical harm,so long as there is little or no risk of injury to the rescuer.The existence and extent of such a law varies from country to country.For example,whilst English law,in general,does not impose a duty to rescue,such an obligation is clearly established under French law.
Other areas of controversy include abortion,euthanasia,drug consumption,gender issues,genetic engineering and a host of other issues.Countries differ widely in their treatment of these controversial areas.Further,the societal views on these issues change over time.
It should be noted that morality plays a large part in the codes of conduct of professions.Doctors,for example,are expected to ensure beneficence and nonmaleficence.In short — do good and do not do evil.In keeping with such high aspirations,the ethical codes of doctors often require doctors to uphold the patient’s welfare and best interests as the “highest consideration”.Such a position is,in fact,loftier than what the law generally requires.
Moral considerations often factor in the law-making process.The line between morality which law enforces and morality which law does not enforce is not easy to draw.It shifts from time to time and varies from place to place.The boundaries are unclear,but the importance and relevance of morality are undeniable.