1. LAW AND MORALITY INTRODUCTION TO LAW
2. LESSON OUTLINE
a)WHAT IS MORALITY
b)TYPES OF MORALITY
c)RELATIONSHIP BETWEEN LAW AND MORALITY
d)DIFFERENCE BETWEEN LAW AND MORALITY
3. MORALITY ISSUE….
4. WHAT IS MORALITY
• Relate to the concepts of what is right or wrong in a particular society – what is acceptable or unacceptable conduct in the society – known as moral attitudes.
• As rules of conduct that are associated with certain distinctive psychological and social attributes. Those who obey the moral rule will tend to feel the sentiment known as virtue and if he disobeys the morality rules he tend to feel guilty.
• Strawson (1961) as “rules or principles governing human behaviour which apply universally within a community or class“.
• It is a code of behaviour that is innate and classified by a higher being
5. Does not only refer to sexual morality or violence acts. It goes beyond that and encompasses beliefs, principles, standard or behaviour or codes in the society. Standard of morality may sometimes differ among subgroup of population.
6. SOURCES OF MORALITY
• Supernatural being – God instruction through sacred documents; Al-Quran, Bible. Example: The value of morality in Islam is very high. In fact, the Prophet (SAW) said: That on the Day of Judgement there will be nothing weightier in their balance than their good moral character. The Islamic concept of life and morality has shown us that the aim of man is to seek the pleasure of Allah.
• Nature – environment, human nature.
• Human beings – values created by a man, customary belief.
7. TYPES OF MORALITY
a) RELIGIOUS MORALITY – God revealed to human beings on how to be a good believers. – The sanction by the God is in the form of sin/good deeds. – Concern the relationship between human and the God.
b) MORALITY AND NATURE – Relationship between the human & nature.
c) INDIVIDUAL MORALITY – Individual-centred. The person himself choose to believe something is immoral or not and not being dictated or told by the society. For e.g. a Hindu believers can choose to be vegetarian.
8. d) SOCIAL MORALITY – Relates the relationship between the members of the society as a whole. Most significant aspect of morality that cut across all of the other aspects and is found in more ethical systems than any of the others.
9. RELATIONSHIP BETWEEN LAW AND MORALITY
10. The relation between law to morals is sometimes describe as two intersecting circles, the part inside the intersection representing the common ground between law and moral.
• The part outside representing the distinctive realms that each other holds (exclusive sway).
• EXAMPLES???
Law and morality reinforce each other – misappropriate something belong to other – there can be no security in life.
• By having moral code human are ought to refrain themselves from doing something that is against the code – supplement with law.
11. Morality is the basis of law – In a primitive society, there was no difference between law and moral rules as they share the same sources (custom, religion).
12. WHERE MORAL AND LAW DIVERGE
• Even when the act is considers as immoral but no legal consequences imposed upon such act.
CONSIDER THE FOLLOWING SITUATIONS: Scenario
1: Rules which are immoral but legal.
• Rules governing those acts which are wrong according to moral but no legal sanction will be imposed against those
13. CONSIDER THE FOLLOWING SITUATIONS:
Scenario 2: Moral values but not legally enforceable.
• No formal organisation to monitor the obedience of law. Usually strongly adhered to, but no form of sanction if a member of society does not follow it.
• Helping the poor
14. CONSIDER THE FOLLOWING SITUATIONS:
Scenario 3: Immoral & illegal.
• They are socially wrongs and at the same time we require law to render them illegal so that the authority may bring them to face the justice.
15. DIFFERENCES BETWEEN LAW AND MORALITY Law Morality Source Rules and regulations made by the parliament. Values and beliefs in a particular society. Dictated by God or Aim & objective To establish a set of rules and regulations. To discipline and promote ethics in Areas of coverage Pervasive. Exists in all More into human
16. DIFFERENCES BETWEEN LAW AND MORALITY Law Morality Legal enforcement Yes Sanctions varies from society to society. Obedience Strict. Followed because afraid of Internal guilt. Society may look Predictability More predictable, clear Unpredictable, vague.
17. ISSUE: DO WE HAVE TO FOLLOW IMMORAL LAW?
Positivist
• Absolute duty to obey
• Must obey in all circumstances – Socrates Neutralist
18. LEGALISING MORALITY
• Upgrading the status of moral rules into legal – certain immoral acts are picked up by the law-makers and enforced through legally enacted rules – theft , murder.
• However, there are certain laws that are considered immoral and erodes the social values and moral of the society. e.g. legalizing homosexuality, abortion, upholding marriage of the same sex, animal testing, etc.
• Should we legalise morality? Isn’t morality is left best between closed door or two (or more) consenting adults?
19. Moral absolutism : No, because it derives from God. Human cannot change. Murder and terrorism are immoral because it against religions and human cannot change it totally.
• Moral relativism: Yes, because morality depends on groups, races, religions. Not all values can be same at all places and religions. The conflict between Western and Islamic world.
20. PUBLIC VS PRIVATE MORALITY
• Can someone commit something immoral which does not cause any harm to anyone?
• He or she may claim he has a right to his own body and anything done to his or her body is within her individual right.
• Anything he or she does behind closed door is her private matters (private morality). The public has no role in determining what is right or wrong for him or her.
• Which one carry more weight?
21. Wolfenden Report on Homosexual Offences and Prostitution (1957) recommended for the decriminalization of homosexuality between consenting adults in private.
• Even if it is considered immoral, it will not affect the morality of the society as the function of criminal law is only to preserve public order.
• Whether immoral conduct committed in private will adverse affect the society?????
22. 22 Lord Devlin: The primary function of criminal law is to maintain public morality. Law should condone immoralities as all immoralities will erode social values. The society will be adversely affected.
• However, everyone has the freedom and privacy to behave in his own way. Tolerance should be granted to them as long as their acts are reasonable to any right-minded man; and not disgusting and intolerable – If public think the immoral conduct is something disgust and intolerable then such conduct should be decriminalized though it in private.
23. 23 Hart: Immoralities do not necessarily affect the integrity of society. Criminalizing certain immoral acts will result in personal misery. Furthermore, how do one gauge what is the nature of general morality produced in the mind of a right- minded man?
• Devlin’s approach puts emphasis on society. Every immoral act starts from an individual. If not nabbed or controlled, it engulfs the whole society.
24. Public vs Private Morality
25. CASE STUDY ON MORALITY Victimless crime
• Activities which involves no harm to others especially homosexual, pornography. Difficult for law to enforce even immoral. Homosexuality , In UK under Sexual Offences Act 1967 homosexual between consenting males in private no longer offence. In Knuller v. DPP [1973] AC 435 (small advertisement of homosexual), Lord Reid stated ‘ I find nothing in the Act indicate that parliament thought…that indulgence in this practice is not corrupting. Even though…corrupting, if people choose to corrupt themselves that is their affair and law does not interfere. But no license will be given to others to encourage these practices.’ 25
26. CASE STUDY ON MORALITY Euthanasia
• Take active measures to end patient’s life. It against the law but what if patient allow or cannot be save anymore??? Abortion
• Roe v. Wade (1973) allows termination of pregnancy during first trimester in and state has authority to make laws to limit it. In Malaysia, It prohibited under Section 312 Penal Code except for medical reason. But is it cover rape and incest victims?? Surrogate motherhood
• Find woman volunteers to carry for pregnancy on couple who cannot conceive on their own.
• In case Baby M (1988), New Jersey Supreme Court defines that the custody of baby must be given to biological parents but surrogate mother get visitors rights. – In Malaysia, no laws govern it even it against Islam 26
27. CASE STUDY ON MORALITY Human cloning
Conflict between science and law especially religion. Majlis Fatwa Malaysia issued fatwa against this type of cloning. Transsexual – Conflict of law and morality can be find in Wong Chiou Yong (P) V Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Negara [2005] 1 MLJ 551, VT Singham made this remark on the case involving change of gender: ‘This court is of the view that if the application is decided in favour of the applicant, this court would usurp the function of Parliament and it is trite that that is something that the courts must not do as it is not the function of thecourt to substitute its own views to fill gaps in the statute but merely to interpret each phrase in the statute in itsstatutory context.’ (para. 39) 27