The Basic Connection

Law and morality have always influenced each other. Much of what makes law legitimate comes from the belief that we have a moral duty to obey it.[1] Laws are connected to the value systems and moral ideas of a society, and judges often interpret laws with the assumption that they should work justly and not offend settled moral principles.[2]

Historically, law, morality, and religion were treated as interconnected. Ancient societies saw law as having divine origins, with some laws traced directly to a divine law giver, such as the Ten Commandments.[3] Today, we view law as made by humans for humans, to be judged in purely human terms.

Where Law and Morality Overlap (and Where They Don’t)

Think of law and morality as two intersecting circles. The overlapping part represents where they agree, while the parts outside show where each operates independently.[4] For example, murder is both legally wrong and morally wrong. However, English law says if death occurs more than a year and a day after the act, it’s not murder, though morally there’s no real difference.[5]

The law may condemn immorality but not always punish it. In Western jurisprudence, prostitution, keeping a mistress, and adultery are considered immoral but aren’t crimes. A prostitute staying at home commits no crime, but soliciting in public becomes a crime because it creates a public nuisance.[6]

Key Differences Between Law and Morality

Law is coercive while morality is persuasive. Legal sanctions force specific behavior through external force, while moral rules rely on internal force—your conscience. Legal rules create rights and duties in communal relationships, while moral rules exist in the realm of personal liberty.[7]

Why They Share Common Ground

Both law and morality have normative characteristics. They both try to impose standards of conduct without which society couldn’t survive. They reinforce each other. If people didn’t refrain from assaulting others or stealing, there would be no security in society. Moral codes recognize people ought to refrain from such acts, which supplements the force of law that forbids them.[8]

When Should Law Stay Out of Moral Matters?

Sometimes it’s better for law not to enforce every moral rule. Two main reasons: First, enforcement machinery might be too cumbersome. Second, legal intervention might create more social evil than it prevents.[9] Modern law refuses to punish private fornication or drunkenness for these reasons. In a 1727 case on obscenity charges, the Attorney-General provided guidelines: “I do not insist that every immoral act is indictable such as telling a lie or the like but if it is destructive of morality in general, if it does or may affect all the king’s subjects then it is an offence of a public nature.”[10]

The Wolfenden Committee Report (1957)

This committee examined whether homosexual relations between consenting male adults in private should be decriminalized.[11] Their main arguments were that the law is exceedingly difficult to enforce in such cases, and enforcement encourages other evils like blackmail. They relied on John Stuart Mill’s libertarian proposition that law shouldn’t intervene in private moral conduct more than necessary to preserve public order and protect citizens from injury.[12]

The committee stated: “It is not in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary… We do not believe it to be a function of the law to attempt to cover all the fields of sexual behaviour.”[13] They believed no attempt should be made to equate crime with sin, stating: “Unless a deliberate attempt is to be made by society acting through the agency of the 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.”[14]

The Devlin-Hart Debate

Lord Devlin’s Position

Lord Devlin disagreed with the Wolfenden Report. In his essays The Enforcement of Morals, he argued that “the suppression of vice is as much the law’s business as the suppression of subversive activities.”[15] He believed society cannot separate crime from sin completely, and society has a right to legislate against immorality as such.

Devlin argued that society is held together by a community of ideas about how people should behave. Without shared ideas on morals, society would disintegrate.[16] To him, society has a prima facie right to legislate against immorality. He criticized the Wolfenden Report’s point that the law should not allow exploitation, arguing that all sexual immoralities involve exploitation of human weakness. The prostitute exploits the lust of her customers and the customers exploit the moral weakness of the prostitute.[17]

He used the “reasonable man” test (the man on the Clapham omnibus) to determine moral judgments.[18] In Nigeria, Justice Kayode Eso described this in Adigun v. Attorney-General Oyo State[19] as the ordinary reasonable citizen: “A reasonable person here may be a pleasant housewife, shopping for meal in Sandgrouse, and not the wife of an Executive, shopping for her grocery in Moloney supermarket: he may be the ordinary worker in Kano Native City, living on his ‘Tuwo’ and not the Senior Assistant Secretary cruising in his officially produced Air-conditioned Peugeot 505 SR.”

Devlin concluded that society cannot live without morals, and morals are maintained through teaching (doctrine) and enforcement (law). He argued the law must base itself on Christian morals because without religious teaching, law will fail.[20] This position, taken by a devout Roman Catholic, has been observed to be fundamentalist.[21]

H.L.A. Hart’s Criticism

Hart, following Jeremy Bentham and John Stuart Mill, argued that using criminal law requires justification beyond merely offending the moral code.[22] Something more is required: the conduct must be directly harmful to individuals or threaten the collective interest of society. Both Bentham and Mill were of the view that the use of criminal law is an evil requiring justification and that it is not justified by the mere fact that the conduct is an offence against the accepted moral code.[23]

Mill wrote in his 1859 essay On Liberty: “The only purpose for which power can rightfully be exercised over any member of a civilised community against his will, is to prevent harm to others.”[24]

Hart saw paternalism in Devlin’s argument. When Devlin said consent isn’t a defense to murder (mercy killing is still murder), Hart argued this could be explained as paternalism designed to protect individuals against themselves, not just enforcing morality.[25]

Hart distinguished between private immorality and public indecency. Using bigamy as an example, he argued the law intervenes not because of the immorality but because of the public act that offends others.[26] Sexual intercourse between husband and wife isn’t immoral, but if done in public, it’s an affront to public decency. Homosexual practice between consenting adults in private is immoral according to conventional morality (at that time), but not an affront to public decency, though it would be both if done in public.[27]

Hart warned against “moral populism”—the view that the majority has a moral right to dictate how everyone should live.[28] He said accepting democracy doesn’t mean accepting that whatever the majority does with power is beyond criticism: “No one can be a democrat who does not accept the first of these but no democrat need accept the second.”[29] Hart submitted that it’s a misunderstanding of democracy to impose through moral populism the views of the majority on the minority, and he regards this as a menace to individual liberty.[30]

Important Court Cases

Shaw v. DPP (1961)

Shaw published a “ladies directory” containing prostitutes’ addresses and was convicted of conspiracy to corrupt public morals.[31] The House of Lords resurrected an old common law crime. Lord Mansfield’s 1774 dictum in Jones v. Randall was invoked: “Whatever is contra bonos mores et decorum (contrary to public morals) the principles of our law prohibit and the King’s Court, as a general censor and guardian of the public morals is bound to restrain and punish.”[32]

Critics condemned this decision because it sacrificed the principle of legality—that criminal offenses should be precisely defined so people can know beforehand what acts are criminal.[33] Dennis Lloyd said the decision was “a deliberate act of policy” and he was unhappy that judges seemed willing to sacrifice other values for re-establishment of courts as guardians of morals.[34]

Knuller v. DPP (1973)

Publishers of a magazine with homosexual contact advertisements were convicted of conspiracy to corrupt public morals and outrage public decency.[35] The House of Lords was divided, with two lordships holding Shaw’s case was rightly decided, while three others held that even if Shaw’s case was wrongly decided, it must stand until Parliament alters it.[36]

Contemporary Perspectives

Views on these matters continue evolving. What shocks one generation may seem normal to another. Divorce, once horrifying in England and only possible through Act of Parliament, now has simple grounds.[37] Limits of tolerance shift over time. As Devlin argued, there must be toleration of the maximum individual freedom consistent with the integrity of society, but not everything is to be tolerated because no society can do without intolerance, indignation, and disgust.[38]

Modern science and medical research suggest homosexuality may not be “unnatural” but may have genetic predispositions.[39] This raises questions about whether law should intervene at all. The wave of liberalism in the Western world is based on faith in scientific evidence and progress, whereas others put faith in unscientific evidence.

In a debate in the House of Lords in December 1957, Lord Denning stated: “The principles as I understand them, under which the judges originally made the full offence a criminal offence, are these: First, the essential of a criminal offence is that it is wrongful, morally reprehensible, so that, in the minds of right thinking people, it is disapproved of. Secondly, it should be harmful. That is to say, it should strike at the safety or the well being of the society at large. Thirdly, it should be fit to be punished.”[40]

Contemporary Issues

The argument extends to contemporary issues. Consider euthanasia: attempted suicide is an offence in many jurisdictions. Euthanasia can be classified into voluntary and involuntary, as well as passive and active.[41] Active involves administration of lethal substances to accelerate death, while passive entails withdrawal of treatment. Arguments against include that life is given by God and should be taken only by Him. Nigerian law prohibits active euthanasia.[42]

On abortion, Catholics say it is not accepted. In Nigeria, it is only legal when the health of the mother is at stake. In other places, abortion is permitted if the mother’s health is endangered or if the child will have serious deformity.[43]

The question remains: how does the law and moral debate apply in the resolution of contemporary issues like same-sex marriage, xenophobia, and discriminatory practices in diverse forms including racism?[44]

The Bottom Line

The debate between law and morality has no easy answer. Both sides have valid points. Society needs some moral standards to survive, but enforcing every moral view through law could be oppressive and impractical. The challenge is finding the right balance between preserving social cohesion and protecting individual liberty. As Hart concluded: “Whatever other argument there may be for the enforcement of morality, no one should think even when popular morality is supported by an overwhelming moral majority or marked by widespread ‘intolerance, indignation and disgust’ that loyalty to democratic principles require him to admit that its imposition on a minority is justified. Human misery and the restriction of freedom are evils and that is why the legal enforcement of morality calls for justification.”[45]

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References

[1] University of Ibadan, Department of Jurisprudence & International Law, “Law and Morals,” Jurisprudence & Legal Theory II Lecture Material (2024), p. 1.

[2] Ibid.

[3] Ibid., p. 2.

[4] Ibid.

[5] Ibid. See also Oluyemisi Bamgbose, “The One Year and One Day Rule in the Law of Murder Revisited,” University of Ibadan Journal of Private and Business Law, Vol. 1 No. 1 (1997), pp. 33-44.

[6] Ibid., pp. 2-3.

[7] Ibid., p. 3.

[8] Ibid.

[9] Ibid.

[10] Ibid., p. 3 (Attorney-General’s guidelines in 1727 obscenity case).

[11] Report of the Committee on Homosexual Offences and Prostitution (Wolfenden Report), CMD 247 (1957).

[12] Ibid. See also John Stuart Mill, On Liberty (1859).

[13] Wolfenden Report, extract quoted in lecture material, p. 13.

[14] Ibid., p. 14.

[15] Patrick Devlin, The Enforcement of Morals (Oxford University Press, London, 1965), p. 4.

[16] Ibid., extract p. 14-15 of lecture material.

[17] Ibid., p. 6.

[18] Ibid.

[19] Adigun v. Attorney-General Oyo State [1987] N.W.L.R. 678, per Kayode Eso JSC.

[20] Lecture material, p. 8.

[21] Ibid.

[22] H.L.A. Hart, Law, Liberty and Morality (Oxford University Press, London, 1968).

[23] Ibid., p. 8.

[24] John Stuart Mill, On Liberty (1859), quoted in lecture material, p. 8.

[25] Hart, Law, Liberty and Morality, p. 8-9.

[26] Ibid., p. 9-10.

[27] Ibid., p. 10.

[28] Ibid., p. 10-11.

[29] Ibid., p. 11.

[30] Ibid.

[31] Shaw v. Director of Public Prosecutions [1961] 2 All E.R. 446; [1962] A.C. 220.

[32] Jones v. Randall (1774), quoted in Shaw, lecture material p. 5.

[33] Lecture material, p. 5.

[34] Dennis Lloyd, quoted in lecture material, p. 5.

[35] R. v. Knuller (Publishing etc) Ltd [1973] AC 435.

[36] Ibid., lecture material p. 5-6.

[37] Lecture material, p. 7.

[38] Devlin, extract p. 7.

[39] Lecture material, p. 8.

[40] Lord Denning, House of Lords debate, December 1957, quoted in lecture material, p. 8.

[41] Lecture material, p. 13.

[42] Ibid.

[43] Ibid.

[44] Ibid., p. 13 (Practice Question).

[45] Hart, Law, Liberty and Morality, quoted in lecture material, p. 12.

Further Reading

• Dennis Lloyd, The Idea of Law (Penguin Books, Harmondsworth), Revised edition 1981, Chapter 3 “Law and Morals”.
• Patrick Devlin, The Enforcement of Morals (Oxford University Press, London, 1965).
• H.L.A. Hart, Law, Liberty and Morality (Oxford University Press, London, 1968).
• H.L.A. Hart, The Morality of the Criminal Law (The Hebrew Press, Jerusalem, 1964).
• Barbara Wootton, Crime and the Criminal Law (Stevens and Sons, London, 1963).
• Glanville Williams, “Authoritarian Morals and the Criminal Law,” Criminal Law Review (1946), pp. 152-147.
• J. O. Akintayo & Abiola Sanni, “Methods of Social Control through Law,” in Sanni, A. (Ed.) Introduction to Nigerian Legal Methods, 2nd ed. (Ile-Ife: Obafemi Awolowo Univ. Press, 2006), pp. 78-111.