Does law create morality or does morality create law?
Updated: Jul 17, 2021
The discussion on whether law creates morality, or vice versa, or even whether the law and morality are interlinked, has been a deep point of debate for many lawyers and philosophers for many years. Whilst the law is essentially a set of rules and principles created and enforced by the state, morality is a set of beliefs, values, and behaviour standards which are enforced and created by society.
Law and morality may be linked in that behaviour which is commonly regarded as immoral is often also categorised as illegal. Most academics therefore agree that law and morals have a close connection, because the moral principles of good, justice, and truth are appliances of and promoted by the rule of law.
What is Law? What is Morality?
The difficulty in answering this question — ”What is law?” — is that there are multiple ways one can view the law, so every answer to this question will be distinct from each other, depending on the individual’s background and beliefs. One could argue that the law is essentially a set of sanctions which are invariably imposed for the infringement of a legal obligation. The law is deliberately changed by parliament and courts in most jurisdictions, and legal principles must incorporate a degree of certainty and concreteness.
On the other hand, there are different forms of punishment for immoral behaviour, where society often creates its own sets of sanctions and condemnations. Unlike the law, morality cannot be deliberately changed, but rather evolves (or devolves) gradually, along with society’s ever-changing behavioural standards. Morality is also much more flexible and variable than the law, as all of its principles are subjective on an individual-by-individual basis.
History of the Debate on Law vs Morality
In Ancient Greece, Aristotle believed that there must be a relationship of subordination between law and morality. Aristotle argued that, as soon as the supreme goal of promoting virtue disappears, “the law becomes a simple convention, being merely a guarantee of individual rights, without any disruption to the morality and personal justice of the cities.” It can be interpreted that Aristotle therefore viewed morality as a foundation for law, setting the grounds of human conventions, then using the law as a safety measure to guarantee basic rights.
Early philosophers also believed in a higher law known as “natural law,” which was thought to be derived from God. These thinkers argued that natural legal principles should be reflected in human-made laws, and if they were not, those laws should not be regarded as laws at all.
In the 19th Century, philosophers such as Jeremy Bentham and John Stuart Mill rejected the concept of natural law, arguing for a rational human-made view of the law. Bentham and Mill pondered the usage and purpose of law, and they concluded that the law was to work towards the greatest good for the greatest number of people, to minimise suffering in society as a whole. Hence, this became known as utilitarianism, centred around the idea of individual freedom, where people should be free to choose their own actions so long as they do not harm others in the process. Even if individuals do harm others, said harm should not outweigh the harm done by the restriction of individual freedom by the state.
From Immanuel Kant’s perspective, morality was a limit for the law. Although there was a distinction between the law and morality, they still had a common link: the fact that they both originate from a common reason. Kant also interestingly argues that morality is based on individual consciousnesses rather than on the fear of sanctions.
Georg Hegel considered morality to be a motivation for law, and that the two do not separate from each other. Rather, Hegel argued that morality gives substance to the law by securing the ground of enforcing the law on individuals. In this view, morality is an intermediate stage to the idea of law, so both law and morality must therefore be subordinated to societal ethics of the time.
R v R  UKHL 12
In the 1600s, Sir Matthew Hale declared that “a man cannot rape his wife” based upon the doctrine of implied consent, i.e. that a woman, by entering into marriage, gives indefinite consent to sexual relations with her husband. Throughout the 20th Century, courts in the UK succeeded in removing this preconception; through a legal separation order (R v Clarke 1949), where a decree nisi had been issued (R v O’Brien 1974), and where a non-molestation order had been imposed (R v Steele 1977). Via these decisions, the immunity was weakened by the courts’ eagerness to limit the moral outrage which society had at the time.
This was furthered by the trial judge in R v R (1991) involving a recently separated married couple, declaring, “I find it hard to believe that it was ever common law that a husband was in effect entitled to beat his wife into submission to sexual intercourse.” The judge therefore ruled that the husband, because of the extreme violence inflicted, did not enjoy immunity from conviction. Lord Lane later declared, “the idea that a wife by marriage consents in advance to her husband having sexual intercourse with her whatever her state of health or however proper her objections is no longer acceptable.”
Therefore, the law eventually caught up with the current public morality, thus showing a sense of separation in time between the law and morality, but leaving a rather hopeful message that the law is able to follow the public sense of morality and ethics as society develops over time. After these cases, rape within marriage was criminalised in Scotland, reflecting the change in societal moral attitudes to the status of women. Through these examples, it can be argued that morals shall change laws as a consequence, rather than laws changing to impact the public sense of morality (which would be much less viable especially due to the diverse sets of public opinions which exist today).
1957 Wolfenden Report
The Wolfenden Report was created via a government commission under Sir John Wolfenden, to investigate the issue of whether the laws which criminalised homosexuality and prostitution should be altered. The report itself recommended that homosexuality and prostitution should be legalised, however with some restrictions. It argued that some areas of behaviour should be left to individual morality, rather than legal regulation: “Certain forms of sexual behaviour 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.” (Paragraph 14 of the Wolfenden Report).
The Wolfenden Report provoked a reaction from Lord Devlin, a leading judge from the time. Devlin viewed the law and morality as being fundamentally interconnected. He argued that a common morality, with basic agreement on good and evil, was the essential “cement to society.” Devlin therefore said that the law had a right to uphold this common societal sense of morality.
Hart, a leading philosopher, disagreed with Devlin. Hart argued that using the law to enforce moral values was unnecessary as society was capable of containing different moral standards without disintegrating — i.e. Hart argued that morality was not the “cement to society.” Hart argued that Devlin’s approach would freeze morality at a specific point in time and eventually infringe the liberty of individuals in society.
This series of discussions is now called the Hart-Devlin Debate, which still continues today. A common example of this debate is when it arises during the discussion over the legalisation of assisted suicide. The “Right to Die” campaign, especially in the UK, challenges the law which criminalised those who help the terminally ill to die. These 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 imposed by the state. In many of these cases, individuals are physically incapacitated and therefore cannot commit suicide. On the other hand, some believe that it is morally wrong in any circumstance to help someone to die.
In this discussion on the relationship between law and morality, it can undoubtedly be said that individuals have a sense of morality and pass these onto the law in order to prevent immoral actions from being committed in society. However, it must be noted that this sense of morality — and therefore ethics — is different from society to society, due to different religious, historical, and socioeconomic backgrounds. Therefore, it is difficult to say that individuals have a unified sense of morality, although it can be said that everyone has their own perception of morality which develops over time, usually along with the experiences which they face in their day-to-day lives. It is therefore even more difficult to establish viable and realistically enforceable international laws, because different societies view moral values through different lenses. Abortion is a prevalent example of this clash, where religion also plays a significant role in state-made decisions to legalise or not legalise abortion. This makes abortion an even more divisive and challenging issue to establish laws on, despite the many moral values which are expressed in society.
In conclusion, one can argue that recognised values, or morals, have become an extremely important subject of study for good law-making, especially as we approach this evolving phase of many societies where the youth are speaking up to the state on issues which they feel need improving. Perhaps for certain issues, there are no other forceful grounds to justify certain actions other than using the rule of law to tackle ‘immoral’ actions. But ultimately, if the law is to remain close and effective to the lives of individuals, it must never ignore the sense of morality in its current period of time.
Works Cited and Further Reading
1967 c. 60
Alistar (Hîrlav), Emima. “The Relation Between Law and Morality.” SSRN Electronic Journal, 2019, doi:10.2139/ssrn.3388103
Aquinas, Thomas. Summa Theologica. 1485.
HONORÉ, TONY. “The Dependence of Morality On Law.” Oxford Journal of Legal Studies, vol. 13, no. 1, 1993, pp. 1–17., doi:10.1093/ojls/13.1.1
India, legal Service. Theory of Relationship between Law and Morality, 2014, www.legalservicesindia.com/article/1931/Theory-of-Relationship-between-Law-and-Morality.html
Joseph, Raz. “About Morality and the Nature of Law.” Law and Morality, 2017, pp. 141–155., doi:10.4324/9781315092003-8
Kant, Immanuel, et al. The Metaphysics of Morals. Cambridge University Press, 1797.
Law and Morality, www.alevellaw.doomby.com/pages/law-and-morality/
OpenLearn. “Legal Skills and Debates in Scotland.” OpenLearn, www.open.edu/openlearn/ocw/mod/oucontent/view.php?id=68341§ion=3.1
“Relationship Between Morality and the Law.” Law Teacher, www.lawteacher.net/free-law-essays/medical-law/relationship-between-morality-and-the-law-medical-law-essay.php
R v R  UKHL 12
Sandel., Michael. Markets & Morals, www.scholar.harvard.edu/sandel/markets-morals
Wolfenden, of W J F W, and Karl A. Menninger. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution. , 1963. Print.