Should the Law be Based on Morality?

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What is morality?

According to Mill (a renowned legal philosopher), our moral obligations result from the justified moral code of our society however there are numerous takes on what morality actually means, we have morality as set down by religion; the easiest examples being the ten commandments, morality and religion, however, are not the same; a society might found its collective morality, which refers to addressing widespread harm caused by actions of individuals/groups in society, however, religious practises are sometimes criticized on moral grounds (e.g discrimination) and so, we can not use religious definitions of morals as the definition of morality within this essay. Although the law can introduce and adapt morality within a society, and laws are often changed on moral grounds- it is distinguished from morality as the law is explicit due to its rules and penalties. Theorists like Dworkin assert that the law must make use of the relevant morality of the society in order to be a positive thing for said members.

So, compiling this entirely, we can define morality (for the context of this essay) as the most important code of conduct put forward and accepted by a society, predominantly based on the four fundamental principles of ethics: the principle of nonmaleficence (don’t harm others), the principle of justice (we all have to give people what they deserve), the principle of beneficence (we all need to be nice) and finally, the principle of self autonomy (respect people’s choices around their own lives), which should seek to uphold the balance of that society, reducing the amount of harm to members of said society to an absolute minimum. These four fundamental principles are widely used throughout philosophy and medical law, for instance they are discussed at length within the US national library of medicine and the british medical journal says they ‘ offer a common, basic moral analytical framework and a common, basic moral language.’ My reasoning for choosing these terms as my definition is that they are widely used professionally and have proved effective so far within global medical professions. I believe that these objective rules will be more effective as they cover most commonly held morals and current legislation as well, for example the principle of non malevolence accounts for not killing people (which is harming someone and illegal) and not hurting people physically and/or mentally in cases like domestic abuse (also illegal).

Within this essay I will cross examine specific cases with the previously mentioned definition of morality, examining the moral conflicts within each and discussing whether the most modern legislation surrounding each actually follows the aforementioned definition. I hope to conclude that, yes, the law should be based on these four fundamental principles of ethics as a starting ground that can be worked upon whilst taking into consideration the collective moral issues and values that are held by the relevant society.

What laws will be examined within this essay?

Throughout my essay, I aim to channel my argument through the following examples:

Abortion law and laws regarding the LGBT community (e.g- same sex marriage, transgender rights) my reasoning for selecting these specific examples are that they are extremely relevant within our current society and that we see prominent examples which can be examined effectively in relation to my title such as the supreme court’s recent ruling allowing President Trump’s proposed transgender military ban which conflicts directly with the principle of nonmaleficence as it denies these servicemen/women the right to serve for a cause they believe in and harms them by not allowing them to work and earn money to live however we could argue from a right wing perspective that transgender military staff do some moral harm to the American society, this argument is much less stable than the argument against this ruling though; we also see the reemerging ‘pro life’ movement, which states abortion is wrong because it violates ‘respect for human dignity’ and I am drawing this from an obvious biased source, meaning this take is hardly objective, I think it is useful to draw this statement from the pro life stance as it is effective to see into the perspective from this view (plus, it is quite recent so offers an insight into an almost ‘second wave’ of the pro life movement), the abortion law debate spikes some contradictions within our aforementioned definition for morality as the legalisation certainly pushes the principle of self autonomy, allowing women to choose without legal judgement, but it could be argued (more often by those on the right leaning side of the political spectrum) that it impedes on the principle of non malevolence as they may argue that abortions are harming the ‘baby’ that is getting removed.

Summatively, I have chosen the previously mentioned ideas as they are extremely controversial, current and interesting debates which cause polarising effects throughout society and the positive/negative effects of rulings that will be mentioned are often subjective and interesting to cross examine with the definition of morality that is being used within the context of this essay.

How does abortion law in the USA conflict with/relate to morality?

Abortion rights have aroused more passion and controversy in society than most other feminist issues. The real debate of abortion law began in the 50s/60s, although illegal until 1973 in America and 1967 in the UK; women often sought ‘backstreet abortions’ which were dangerous and carried a large risk of infection, a chicago hospital was found to have treat 5000 women with abortion related injuries in 1960 alone but with the rise of the christian right as a reaction to the decades progressive nature, it was difficult to really legalize it nationally in the USA- the northern states like New York began to legalise it due to the demands of the feminist and women’s liberations groups that often coordinated from such ‘progressive areas’ however in the ‘deep south’ it was much harder, the fight for abortion rights nationally in the USA really began in Texas with Jane Roe who challenged the law which stated that abortions may only be carried out if the woman was at risk of death and applied severe punishments to those who would ‘procure an abortion’ for a pregnant woman, and after several years the supreme court ruled 7-2 in favour of national abortion rights in roe v. wade; this decision led to huge celebrations from women’s rights groups across America such as the National organisation for women and the many women’s liberation groups across America, however it also contributed in large to the rise of the christian right and the ‘pro-life’ movement, as mentioned earlier my reasoning for discussing abortion law is how it can be perceived as an immoral law and a moral law depending on the person that is discussing the issue and as such is a good topic to discuss when asking if the law should be based on morals- certainly from a liberal, feminist point of view this would be a groundbreaking triumph for women across the USA and was obviously a step towards a more morally correct society, allowing women control over their body and favouring the principles of autonomy and nonmaleficence (a woman could no longer be punished and/or discriminated against for seeking an abortion) however the christian ‘pro-life’ sector would see it as hugely violating these same principles as, from their view, this woman is murdering an unborn child with its own right to live and own choice, therefore meaning she has violated this humans right to autonomy and is going against the principle of non malevolence by doing so. So, does the roe v. wade ruling (1973) support or conflict with the idea of basing law on moral values? The ruling granted pregnant women the choice of getting an abortion within the first trimester, after that this choice became ‘state-regulated’ and largely only followed through with an abortion if the womens like was put in danger by the pregnancy. The moral argument surrounding abortions primarily focus on the fetus’ right to live and when that right to live actually begins, ignoring how strange it is to give something the right to live at one point when it did not have that right moments earlier, however since the fetus itself is not actually labelled as a fetus until the 8th week of the pregnancy (previously called an embryo or a zygote) it can be objectively said that this embryo has is not harmed anymore than a section of muscle is harmed when it is removed as it has no conscious thought at this stage, therefore the principle of nonmaleficence does not conflict with this ruling/law as the action itself is bringing no harm to any living person, other than perhaps the feelings of somebody who is against it, the argument against it and the idea of restricting a woman’s ability to choose, exemplified quite well in a recent attempt in Ohio which could give women and doctors involved in abortions jail time and even a death sentence which, if drafted into law, would interfere with the principles of autonomy and non malevolence as not only would this woman not be allowed to choose her own actions, she along with the doctor involved would be punished with either jail or death for her choice. This ruling is likely not going to pass into law but offers an insight into which side is morally right in this case and allows us to almost certainly conclude that the roe v. wade ruling was a morally correct ruling.

This ruling is not only morally correct on an individual case basis but also seems to benefit society as well, an interesting but questionable study undertaken by professors John Donohue of Stanford university and Steven Levitt of the university of chicago linked the rising abortion rates after roe v. wade to the decline in crime rates. They concluded that for every 1000 extra abortions between 1973-1976 there were 50 less violent crimes, 0.6 less murders and 360 less property crimes and in some cases, a 50% drop in crime overall however this finding has been cricised most notably by Foote and Goetz who, in ‘the impact of legalized abortion on crime:comment’ stated that ‘First, there is a coding mistake in the concluding regressions, which identify abortion’s effect on crime by comparing the experiences of different age cohorts within the same state and year. Second, correcting this error and using a more appropriate per capita specification for the crime variable generates much weaker results.’. So, upon analysing the source and criticism/corrections to it we can state that despite the previously mentioned statistics being as accurate as would be ideal, the idea of abortion rates and crime rates being inversley proportional is key to examining whether the legalization of abortion is morally just as it proposes that not only does it conform with the principles of autonomy and non malevolence, it also contributes to a wider society level in reducing violent and casual crimes, reducing the overall harm done to individual members of a society and as such, reducing harm to that society as much as it can which is another one of the factors of the definition of morality that has been defined within the context of this essay.

This conclusion supports the argument that laws should be based on the four fundamental principles of morality as we see a direct correlation between the legislation of abortion and the reduction in crime rates alongside the promotion of individual freedoms, reducing harm not only individuals but society as a whole and increasing the autonomy of individuals, therefore this relates to the three of the principles of morality mentioned in our definition, the principle of nonmaleficence as it allows women to reduce risk to their own bodies and not be persecuted for doing so, the principle of beneficence as it reduces prejudice toward women who choose to undergo an abortion and the principle of self autonomy as it respects the individual choice of the woman who chooses to undergo an abortion

How do laws surrounding homosexuality in the UK support/conflict with morality?

The debate surrounding homosexual acts in Britain flourished during the 50s/60s; prior to that it was a criminal offence and homosexual/bisexual men could face a maximum sentance of life in prison if proven to be enganging in homosexual acts, this was due to the criminal law ammendment act, specifically ‘the Labouchure ammendment’ which extended punishment to any men found commiting homosexual acts. Through the 50s there were numerous high profile cases which led to the establishment of the Wolfden Committee. The first high profile case was Alan Turings, a mathmetician who played a large role in the second world war as a Nazi code breaker, who was convicted of ‘gross indecency’ in 1952, accepting hormome treatment as an alternative to prison which led him to commit suicide in 1954 (it is widely speculated that Turings death was the result of a murder or the result of an accidental cyanide poisining from a chemistry experiment however the court ruling decided it was a suicide so this is the stance I will take). This event alone brings the laws against homosexuality into question as moral or not, it is known that homosexual laws were put in place due to cultural and religious reasons that caused homosexual acts to be seen as morally corrupting and harmful to wider society as a whole, being a gateway to more disturbing paraphilia like necrophilia or beastiality however legislation that outlawed homosexual activity and even advocated the death penalty for homosexual actions until 1961 (removed in section 61 of the ‘offences of the person act’ 1961). The severity of punishments for homosexual acts, even after the removal of the death penalty, directly conflicts with our four fundamental principles of morality. It conflicts with the principle of nonmalevolence as it directly harms the convicted person both physically and mentally through the prison sentances applied, causing isolation and increasing the risk of physical harm to this person by placing them into a prison environment, and the alternatives in place (e.g-hormone treatment) which caused physical and emotional distress for those convicted. It conflicts with the principle of self autonomy as it outlaws the private pleasures of the individuals in question and seeks to punish them for these actions, showing that legislation punishing homosexuality does not respect an individuals private choices but instead seeks to regulate them and force them to conform to a preferred state, emphasising the conflict between these laws and the principle of self autonomy. They conflict with the principle of beneficence for the same reason as they conflict with each of the previously mentioned conflicts, mainly the fact that prescribing severe punishments like hormone therapy and prolonged prison sentances are not exactly the epitome of kindness.

In reaction to numerous high profile cases such as the Turing case and the imprisonment of Edward Montagu led to the establishment of the woldfen committee in 1954 with the aim of reviewing UK law in relation to homosexuality and consequently, the ‘Report of the Departmental Committee on Homosexual Offences and Prostitution ‘ (better known as the wolfden report) was published in 1957 and reccomended that ‘homosexual behaviour between consenting adults in private should no longer be a criminal offence’, it also reccomended the age of consent to be 21 for homosexual males (it was proposed to be 18 however Wolfden himself was staunchy conservative in his beliefs toward sexuality and refused to allow any age of consent lower than 21). The short term impact of the report itself was not overly impactful, Wolfenden himself was quite conservative saying that homosexuality was ‘morally repugnant’ and played a large role in some of the more restrictive natures of the report such as the rather high age of consent for homosexual males, he believed that a lower age of consent could ‘corrupt’ young men into undergoing sexual acts, this can all be found in an article called ‘Wolfenden: not so liberal on homosexuality after all’ published by ‘The Guardian’, the publisher itself is generally a more left wing liberal news publisher and as such is more inclined to be hypercritical toward conservative viewpoints, even if they were simply a product of their time as Wolfenden’s was likely to be. Despite the lack of a short term impact, the report did largely contribute to the ‘sexual offences act’ which was formed under the Wilson Labour government in 1967, the act implemented the majority of the reccomendations of the wolfenden report, it legalised homosexual acts between two men aged over 21 in private; this act coincides with the principle of self autonomy as it recognises that acts between two consenting individuals in private should not be subject to government intervention as it is not causing harm to any people not involved in the act. Despite the groundbreaking nature of this act, homosexual activity was not entirely decriminalised as acts of ‘gross indecency’ could still be prosecuted by police (about 1000 cases of convicted ‘gross idecency were recorded in 1969, steadily increasing to around 2000 in 1977 before dropping)

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Should the Law be Based on Morality?

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