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INTRODUCTION TO LAW – LAW1064 CHAPTER 3 Law and morality One of the areas of debate concerns the relationship between law and morals. Law and moral values both set out acceptable behaviors within society. Is law separate from the moral va...

INTRODUCTION TO LAW – LAW1064 CHAPTER 3 Law and morality One of the areas of debate concerns the relationship between law and morals. Law and moral values both set out acceptable behaviors within society. Is law separate from the moral values of the society in which it operates or are they inseparably linked? The following sections explore this. 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 tends to feel guilty. Strawson (1961) as "rules or principles governing human behavior which apply universally within a community or class “. It is a code of behavior that is innate and classified by a higher being. It does not only refer to sexual morality or violence acts. It goes beyond that and encompasses beliefs, principles, standard or behavior or codes in the society. Standard of morality may sometimes differ among subgroup of population. Sources of Morality Morality basically revealed by Allah through sacred documents; Al-Quran. For 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. Another source of morality is coming from nature like environment, human nature. We as a human being also can be a source of morality when we tend to create values and customary belief. 34  INTRODUCTION TO LAW – LAW1064 Types of Morality a. Religious Morality God revealed to human beings on how to be a good believer. 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-centered. The person himself choose to believe something is immoral or not and not being dictated or told by the society. For example, a Hindu believers can choose to be vegetarian. d. Social Morality Relates the relationship between the members of the society. Most significant aspect of morality that cut across all the other aspects and is found in more ethical systems than any of the others. Law or morality Historically, the moral and religious values of a society influenced the development of law. Early philosophical writers believed in a higher law known as ‘natural law’, deriving from God. In principle, natural law principles should be reflected in man-made laws and if they are not then those laws should not be regarded as laws at all. In the nineteenth century, writers such as Jeremy Bentham (1748–1832) and John Stuart Mill (1806–1873) rejected the concept of natural law, arguing for a rational man-made view of law. They asked the question: what is the use of law? And their answer was that its purpose was to work towards the greatest good for the greatest number of people 35  INTRODUCTION TO LAW – LAW1064 and to minimize suffering. This became known as utilitarianism, but what does this theory mean in practice? Differences between law and morality Behavior which is commonly regarded as immoral is often also illegal. However, legal and moral principles can be distinguished from each other. For instance, parking on a double yellow line is illegal but not commonly regarded as immoral. Table 1 Some differences between morality and law Law Morality Sanctions are invariably imposed There is no official sanction for for the infringement of a legal immoral behavior, although society obligation often creates its own form of censorship Law is deliberately changed by Morality cannot be deliberately Parliament and/or the courts changed, rather it evolves slowly Legal principles need to Morality is invariably much more incorporate a degree of certainty flexible and variable The relationship between law and morals Major breaches of a moral code are also likely to be against the law; criminal law provides the obvious example of where morality and law often merge. The influence of morality in a very general sense is also implicit in a wide range of different laws. For instance, in the commercial world, laws criminalizing bribery and the imposition of legal duties on company directors embody what would commonly be considered the ‘right’ or moral way to conduct business. However, law is influenced by a wide range of political, social, economic, and cultural factors, and the moral climate of 36  INTRODUCTION TO LAW – LAW1064 society is only one of these factors. In practice, many laws have a bureaucratic, administrative, and technical function. They operate as an essential part of a complex modern society and have little or no connection with morality. Moral values are not static, they evolve over time and laws may change consequently. For instance, rape within marriage was criminalized in Scotland in 1989, reflecting the change in social and moral attitudes to the role and status of women. It may be that law pre-empts the change of moral values; the decriminalization of homosexuality, under the Sexual Offences Act 1967, is an often-cited example of how law influenced a change in this way. The issue of whether law should be involved in enforcing a moral code in matters that concern the personal lives of people, such as their sexuality, has long been a controversial issue, as was demonstrated in the Wolfenden Report. The Wolfenden Report In the 1950s a commission was established by the government under the chairmanship of Sir John Wolfenden to investigate the issue of whether the laws that criminalize homosexuality and prostitution should be changed. Its findings were published in the Wolfenden Report in 1957. It recommended that homosexuality and prostitution should be legalized, with some restrictions. It argued that some areas of behavior should be left to individual morality, rather than legal regulation. Paragraph 14 of the report stated: It is not, in our view, the function of law to intervene in the private lives of citizens, or to seek to enforce any pattern of behavior, further than is necessary. It follows that we do not believe it to be a function of the law to attempt to cover all the fields of sexual behavior. Certain forms of sexual behavior are regarded by many as sinful, morally wrong, or objectionable for reasons of conscience, or of religious, or cultural tradition; and such actions may be reprobated on these grounds. But the criminal law does not cover all such actions at the present time; for instance, adultery and fornication are not offences for which a person can be punished by the criminal law. Nor indeed is prostitution as such (Wolfenden, 1957). 37  INTRODUCTION TO LAW – LAW1064 This approach provoked a reaction from Lord Devlin, a leading judge of the time. He envisaged law and morality as being fundamentally interconnected. He argued that a common morality, with basic agreement on good and evil, was the cement of society without which it would begin to disintegrate. Devlin argued that law had a right, in fact a duty, to uphold that common morality. Hart, a leading academic, disagreed arguing that using law to enforce moral values was unnecessary, as society could contain different moral standards without disintegrating. It was also undesirable as it would freeze morality at a particular point and morally unacceptable as it infringes the liberty of the individual. Hart set out some reasons why moral censure should not necessarily lead to legal censure: it may punish behavior that may not have proved harmful to another person the exercise of free choice by individuals is a moral value with which it is wrong to interfere. The Hart–Devlin debate continues today. For instance, it arises in the debate over the legalization of assisted suicide. The ‘Right to Die’ campaign challenges the law which criminalizes those who help the terminally ill to die. Campaigners argue that people with life-threatening illnesses or severely disabling conditions should be able to choose to die and that those who help them to do so should not face criminal sanctions. In many of these cases people are physically incapacitated and so cannot take their own lives. However, others believe that it is morally wrong in any circumstances to help someone to die and campaign against the right to die. But in general, there are similarities and differences between law and morality. Their similarities, according to Hart (1986: 168), are they are alike binding regardless of the consent of individual bound and supported by serious social pressure for conformity. Its compliance with both legal and moral obligation is considered as a minimum contribution to social life. This is because as we have already discussed compliance with legal norms enable the members of the sociality to live together. The same holds tree with respect to moral obligations. Then, both law and morals include rules that are essential for life in general even though they also include special rules applicable to special activities. Thus, 38  INTRODUCTION TO LAW – LAW1064 the members of the society are required to comply with those rules to live to gather. Thus, prohibition to violence to person and property are found in both law and morals. What are the differences between law and positive morality? Various tests have been suggested to distinguish a rule of law from a mere dictate of positive morality. Firstly, a rule of law is imposed by the State. Secondly, while there may be a sanction behind the rules of positive morality, it is not applied by organized machinery, nor is it determined in advance. Third, some argue that the content of law is different from that of social morality, but, while it is true that law, having a different object, covers a different scope, there is no immutable boundary to its operation. Law, positive morality, and ethics are overlapping circles, which can never entirely coincide, but the hand of person can move them and determine the content that is concerned to all or two or confined to one. Ethics condemns murder because it is once accepted by both positive morality and law. We do find a close relationship between the rules of law and rules of positive morality, for the latter determine the upper and lower limits of the effective operation of law. If the law lags behind popular standards it falls into disrepute, if the legal standards are too high, there are great difficulties of enforcement. The close relationship between law and the life of the community is shown by the historical school, and if we admit that positive morality influences law, it must be recognized that law in its turn plays a part in fixing the moral standards of the average person. Fourthly, it has been suggested that the method of expression should be used as a test- rules of positive morality lack precision, whereas rules of law are expressed in technical and precise language. There is much truth in this, but the distinction is only relative, for early law is fluid and vague, and some social usages may be expressed very precisely, for example, the modes of address of those bearing titles. 39  INTRODUCTION TO LAW – LAW1064 Law and Justice What is Justice? Plato Microcosm of the just man reflects the pattern of the just society. Justice to him is by depicting what a just society. Every person is inherently adapted to some specific function and if he departs from that function, he is guilty of injustice. Justice discounted by pain and dishonor is more advantageous than injustice supplemented by the rewards of justice. Aristotle The act refraining from pleonexia (gain something for advantage for oneself, deny other rights and property). Hammurabi Declares that justice is to appear in the land by destroying the evil and the wicked so that the strong might not oppress the weak. Bentham Maximum happiness of maximum number of people. H.L.A. Hart Justice as a shared concept for example, everybody wants justice seen and done. Curzon Treats justice as an impartial resolution of disputes arising from conflicting claims by not favoring one from another, not discriminating, bias and prejudice. Ross Justice is the correct application of a law as opposed to arbitrariness; by making decision based on rule and law of evidence and trial, not by mere personal suspicion or opinion. 40  INTRODUCTION TO LAW – LAW1064 Dennis Lloyd (1964) Justice being linked with equality of treatment, and it is undoubtedly owing much to the association of justice with legal proceeding. Law supposed to be applied equally in all situations and to all person without fear or favor in application of law without discrimination as the best embodiment of justice. But justice cannot simply mean that we can treat everyone alike regardless of individual differences. Justice in Islam In Islam, the meaning of justice is ‘place something in right place, equal treatment’. ‘To render justice ranks as most noble acts of devotion next to belief in Allah; it is the greatest of all duties entrusted to the Prophets.’ (Al-Saraksi) We sent our Messengers with clear signs and sent down with them the Book and the measure in order to establish justice among people. (Al-Hadid 57:25) Allah demands judges to do justice to their friend and foes alike. (4:41-35) To man in general, He spoke to his messenger in these terms: “O my servants, I have forbidden injustice on Myself and forbade it also to you. So, avoid being unjust to one another.” Relationship Between ‘Justice’ and ‘Law’ A concept that is closely identified with law is justice. Like 'law', the term 'justice' is difficult to define. They may or may not all coincide, depending on the situation and the context in which they were used. For example, the fine for parking in a 'No Parking Zone' is the same whether you are rich or poor. This may be considered legally and morally just, as everyone is seen to be equal in the eyes of law. But the person who is rich can more easily afford to pay the fine than the person who is poor. 41  INTRODUCTION TO LAW – LAW1064 Thus, the question then arises of whether that is morally just. But this does not make the task of defining the concept of justice any easier. However, a common agreement as to the terms 'fair' and 'right' exists. As times change, so do the attitudes and values of society and the individuals within that society. For example, in today's society, co- habitation by couples (not necessarily same sex) is not frowned upon by the society like it was used to. This too depends on which society it is being referred to. This is in the context of the western society. As Lord Denning, one of England's greatest judges, suggested: Law embodies what society believes is right or fair. Justice in our society means that everyone is entitled to a fair trial under a set of rules that applies equally to both sides in an open court. However, it is unrealistic to suggest that our legal system can be absolutely full proof. Our legal system recognizes its fallibility in a number of ways: a. A court hierarchy allows a person, within certain defined limits, to appeal to a higher court where it appears that there has been a miscarriage of justice or an error in law. b. Writ of habeas corpus, where the court decides on the legality of a person's imprisonment when they are being held for no stated cause. On the basis of the legal system that Malaysia inherited from England, Malaysian society has developed a reasonably fair system of rights and duties. Where everyone has their rights infringed, they may seek relief through the law. This may take the form of a civil action where they may seek remedy such as, the form of monetary compensation (or damages) from the other party. Or it may be by way of a complaint to the police, resulting in a criminal prosecution against the other party and perhaps their goaling by the courts. It may even be an action in both civil and criminal law. 42  INTRODUCTION TO LAW – LAW1064 Law and human rights Human Rights are the basic rights and freedoms to which all human beings are entitled, like civil and political rights, the right to life and liberty, freedom of thought and speech/expression, equality before the law, social, cultural, and economic rights, the right to food, the right to work, and the right to education. In short, human rights are freedoms established by custom or international agreement that protect the interests of humans and the conduct of governments in every nation. Human rights are distinct from civil liberties, which are freedoms established by the law of a particular state and applied by that state in its own jurisdiction. Human rights laws have been defined by international conventions, by treaties, and by organizations, particularly the United Nations. These laws prohibit practices such as torture, slavery, summary execution without trial, and arbitrary detention or exile. Many human rights are secured by agreements between the governments and those they govern, such as the U.S. Constitution. Others are protected by international laws and pressure. Human rights or civil liberties form a crucial part of a country’s constitutional and uphold the rights of the individual against the state. According to United Nation The Secretary-General, in his report “In larger freedom: towards development, security and human rights for all” (A/59/2005) the Secretary- General noted that “while freedom from want and fear are essential they are not enough. All human beings have the right to be treated with dignity and respect” (para. 27). Such dignity and respect are afforded to people through the enjoyment of all human rights and are protected through the rule of law. The backbone of the freedom to live in dignity is the international human rights framework, together with international humanitarian law, international criminal law and international refugee law. Those foundational parts of the normative framework are complementary bodies of law that share a common goal: the protection of the lives, health and dignity of persons. The rule of law is the vehicle for the promotion and protection of the common normative framework. It provides a structure through which the exercise of power is subjected to agreed rules, guaranteeing the protection of all human rights. 43  INTRODUCTION TO LAW – LAW1064 As defined by the Secretary-General, the rule of law requires that legal processes, institutions and substantive norms are consistent with human rights, including the core principles of equality under the law, accountability before the law and fairness in the protection and vindication of rights (S/2004/616, para. 6). There is no rule of law within societies if human rights are not protected and vice versa; human rights cannot be protected in societies without a strong rule of law. The rule of law is the implementation mechanism for human rights, turning them from a principle into a reality. The rule of law has played an integral part in anchoring economic, social and cultural rights in national constitutions, laws and regulations. Where such rights are justiciable or their legal protection is otherwise ensured, the rule of law provides the means of redress when those rights are not upheld, or public resources are misused. While universally agreed human rights, norms and standards provide its normative foundation, the rule of law must be anchored in a national context, including its culture, history and politics. States therefore do have different national experiences in the development of their systems of the rule of law. Nevertheless, as affirmed by the General Assembly in resolution 67/1, there are common features founded on international norms and standards. The rule of law and human rights are two sides of the same principle, the freedom to live in dignity. The rule of law and human rights therefore have an indivisible and intrinsic relationship. That intrinsic relationship has been fully recognized by Member States since the adoption of the Universal Declaration of Human Rights, in which it is stated that it is essential, “if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”. In the Millennium Declaration, Member States agreed to spare no efforts to strengthen the rule of law and respect for all internationally recognized human rights and fundamental freedoms. In the 2005 World Summit Outcome, Member States recognized the rule of law and human rights as belonging to the universal and indivisible core values and principles of the United Nations. In the Declaration of the High-level Meeting on the Rule of Law, Member States emphasized that human rights and the rule of law were interlinked and mutually reinforcing. 44  INTRODUCTION TO LAW – LAW1064 The Human Rights Council has actively advanced the rule of law. A series of resolutions have been adopted by the Council that directly relate to both human rights and the rule of law, including on the administration of justice; on the integrity of the judicial system; and on human rights, democracy and the rule of law. The Human Rights Council has established several special procedure mechanisms directly related to the rule of law, such as the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non- recurrence, the Independent Expert on the promotion of a democratic and equitable international order and the Special Rapporteur on the promotion and protection of human rights while countering terrorism. 45