It seems reasonable to claim that nowadays, individuals are interrelated to a great extent due to the solid bound that results from the essence of social relations. Humans live in societies that benefit them through various perspectives – starting from the economic and ending with the institutional one. However, in return, there is a necessity to follow generally accepted and formally established rules that are expressed in the form of law. The latter is founded on the principles of morality and imposes specific patterns of behavior that are expected to make the social order appropriate and significant.
The Issue of Equating Law to Morality
With the development of society and public consciousness, within the mentioned rules, there has been a shift toward respect for individual freedoms and private life. The following statement reflects such a tendency, “Unless a deliberate attempt is to be made by society, acting through the agency of law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief, and crude terms, not the law’s business” (Wolfenden, 1957, para. 61). Below, the discussion on this expression – arguing in favor of the latter referring to the essence of morality – will be provided.
According to the citation given, the law is to leave room for the freedom of choice until the society will legally and intentionally impose criminal responsibility for breaking the principles of morality in all spheres of life. The point here is that now, legislation should be considered as a system of rules that impede one to act adversely from the angle of public good, still giving the opportunity to decide what is moral and immoral within the scope of their private affairs. It should be emphasized that the central theme here is not the correlation between the public good and the private one. A vital aspect to consider, at this point and in the framework of the cited expression, is the meaning of the so-called private morality.
In lay terms, morality can be viewed as a set of principles that define which human actions are good and kind, and which ones are not. These principles are defined by societal consciousness that serves as a metaphysical foundation for social order and relations between individuals. Hence, morality is an integrated part of public interconnections that form the basis of society’s functioning. It should be stressed that both law and morality imply a plethora of rules, but the former is obligatory to follow. Here, “obligatory” means the presence of legal responsibility that involves a particular punishment implemented by authorities that act as guarantors of the superiority of law. From the formal perspective, this is the crucial distinction between law and morality – for the violation of the latter, there is no legal responsibility and the related punishment. It is public censure that takes place if a person acts in an immoral way.
However, it is necessary to state morality has a broader scope than law. It covers and can be applied to any action in any sphere of life. The idea of morality itself is integrated into the legislation. In such a context, the law is a reflection of the fundamental and commonly accepted moral rules that aim to regulate social relationships in the public interest. Thus, the legal provisions and the governmental enforcement to follow them are dictated by public morality.
At this point, there might be a contradiction – if morality is determined by social, or public, consciousness, then how the notion of “private morality” given in the citation can exist? As mentioned above, moral principles go beyond legal ones. These principles regulate one’s actions only at the metaphysical level and guide one throughout living. From this, comes the concept of private morality which is an important part of the modern world.
Above, it was argued that the contemporary system of social relations is founded on the superiority of human fundamental freedoms and the opportunity to make independent choices. This is a liberal approach that respects people’s private affairs. In the cited expression, in essence, it is suggested that equating criminal law to morality substantially would restrict our freedoms. In such a case, criminal law would include much more provisions that would inevitably intervene in and not simply affect but determine a person’s private life. Under the current conditions of human rights’ significance, this state of affairs is inappropriate. Private morality is a direct embodiment of the possibility to make independent choices and decide how to live. A critical assumption here is that law provides the set of obligatory rules that define the “morality minimum” that should be inherent to every person. In turn, morality as a whole reflects the perfection that it is appropriate to strive for.
However, from this perspective, one might assume that if morality contains an idealistic form of personality, then it is proper to make it obligatory for everyone. This is a position taken by Lord Devlin who was against separation of private and public morality (Boparai, 1976). Professor Herbert Hart – Devlin’s opponent in the debate over morality and law – claimed that such a position is unacceptable. His point was that liberalistic social order has led to permissiveness in terms of many private and public affairs, which has resulted in the co-existence of a plethora of moralities, or so-called moral pluralism (Boparai, 1976). Prerequisites to this are different religious views, the opportunity to develop individual critical thinking and formulate own visions, freedom of expression, etc. It seems rational to say that such a system has benefited many societies, and there are no reasons to change the course drastically and broaden the scope of criminal law to the degree discussed.
Patterns of morality tend to shift due to the fluctuations within the public consciousness – moral pluralism is a basis for that. This is another argument in favor of the impossibility to equate morality and criminal law. A distinctive feature of a democratic state is the solidness of the fundamental legal provisions. Formal adaptation of law to the changing moral values would cause ambiguity in terms of legal system functioning. As a result, societal relations would become chaotic, hindering the society to develop and prosper. Law amendments cannot be implemented too often as in this case, the government cannot serve people to the necessary extent – it focuses rather on itself trying to define its own range of duties.
To conclude, the above discussion is dedicated to the issue of equating law to morality in the context of private morality. The essence of morality and law was explored, which allowed identifying the nature of private morality. It was argued that broadening the scope of criminal law to the extent of moral rules would be harmful to the social order, societal relations, and the superiority of human rights. It was claimed that respect for private life is vital nowadays, and there should be the opportunity to decide how to live, without legal interruptions in this vein.
Boparai. (1976). How far should law and morality be differentiated, and the question of abortion. Journal of the Indian Law Institute, 18(1), 85–114.
Wolfenden, J. (1957). Report on the Committee on homosexual offences and prostitution. Her Majesty’s Stationery Office.