Law and Morality Essay

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Law and Morality

Courts should refrain from imposing social values in their interpretation of the law, since doing so can have dangerous consequences.

The imposition of social values through the criminal system is a tempting, but unjustifiable, activity that should be guarded against at every level in the legal system. Generally social values are derived from belief systems, worldviews, or religious preferences. Although notions of right and wrong and moral preferences may be entirely reasonable at the level of the individual, or even a group, however a justice system based on equal treatment under the law has no room for justifying legal proceedings that are based on social values alone since social values are highly subjective to begin with. This analysis will outline some of the dangerous consequences that can occur when subjective interpretations are allowed into legal sphere. Although it can be argued that all judgments have some subjective component to them, those that are based upon moral or religious opinions have a much larger subjective component than those that are based on sole consideration of the public good and how best to maintain a functioning society with individual rights and freedoms.

Morality in Criminal Law

The temptation to use the legal system to impose social constructs that are deemed moral has been persistent ever since the first legal system was created. When power is concentrated then those in authority may wish to engage in social engineering to try to carve out the type of society that they personal deem as an ideal society. Unfortunately, when this is the case then the ideals of the lawmakers can be entirely based on unfair discrimination against various individuals or groups that practice beliefs or engage in activities that may seem morally offensive to those in a position of authority. However, at the same time these beliefs or activities may not cause any physical or other damage to the general public good. Thus the question become that of balancing individual rights with a set of rules that should ideal represent the minimal threshold of what is necessary to maintaining a functioning society.

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Patrick Devlin (1965) proposes these questions as lines of investigations that should be answered in order to establish the balancing point between morals and the legal system (Devlin, 1965):

1. Has society the right to pass judgment at all on matters of morals? Ought there, in other words, to be a public morality, or are morals always a matter for private judgment?

2. If society has the right to pass judgment, has it also the right to use the weapon of the law to enforce it?

3. If so, ought it to use that weapon in all cases or only in some; and if only in some, on what principles should it distinguish?

The first question posed by Devlin is the most significant of the three. It is important to have a conceptualization of what is meant by the term "morals." Morals, as opposed to ethics, are ground in the beliefs of a certain group of peoples or a certain culture. While some morals may also represent ethical principles, not all morals are necessarily ethical.

The example of homosexuality is commonly provided to illustrate how some activities may be perfectly ethical yet entirely immoral as perceived through the lens of a specific belief system or culture that only applies to a certain group or worldview. For example, it is difficult to make a claim that homosexuality is unethical in any way if it is performed by two consenting adults. Homosexuality is commonly found in nature in many different species and there is ample evidence that it is a naturally occurring phenomenon. However, many people feel that homosexuality is immoral due to their religious practices or personal preferences about sexuality.

Homosexuality is a great example primarily because for many years the public opinion of the majority was against the practice of homosexuality. It hasn't been until fairly recently that public opinions have changed on the subject and have shifted to a….....

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