The law should not condone illicit behaviour

It is a key principle of the Common Law system that the law is not there to act as an instructive manual for public morality. It exists to regulate the basics of conduct necessary to ensure the functioning of society. This is in contrast to other jurisdictions such as France, where the law is used quite openly to impose moral duties on citizens, for example by criminalising failure to assist strangers. The position is supported by a large amount of statutory and case law, and is the established position within English law. To say what the law "should" be doing in this case is either to ignore the jurisprudence as it currently stands, or to propose a radical overhaul of some fundamental assumptions. To go beyond this position raises a number of issues: 1. Whose morality? The most obvious point is that in a pluralist society this cannot be an obvious answer. We have multiple value systems operating at any given time, and the state proclaims no business in determining which of these value systems is correct. The state starts to go down a shaky path if it starts to endorse one of these value systems over another on grounds greater than the maintenance of public order. One may counter this by arguing that this is a country of Christian heritage and institutions, and that the common good is thus defined by the intellectual underpinnings and legacy of the Christian faith. This only raises further problems. "Whose morality?" becomes "whose Christianity?" Is it the Anglican Church, which has never been in the majority of this country? Is it that of the evangelical or liberal wing? I may find as easily find one churchman vehemently opposed to the legality of prostitution as I may find one in favour of its legalisation. To effectively determine public policy on this basis of a fundamental Christian morality would require the active involvement of the state in church politics and the endorsement of a particular theology. The arrangement would be beneficial to neither the state, nor society, nor Christianity itself. The basis of secularism is that the church and state are separate. The law and general morality operate in separate spheres accordingly. 2. Where do we draw the line? This question is present in many legislative issues, but raises particular problems when it comes to the imposition of civic duties. Who owes the duty? At what point is it owed? Trying to adequately define the boundaries of acceptable moral behaviour is ultimately futile as human behaviour is fractal in nature. The result will always be that some people end up on the wrong side of the line. Legislating in fields better suited for public opprobrium simply risks criminalising people unfairly. One need look no further than the opposing argument on this topic: the writer's words could easily be interpreted as arguing in favour of the criminalisation of speed-dating. To suggest that a professional draftsman would be able to draw the line more easily than the (I assume) layman who wrote this is disingenuous. (For a more detailed discussion, see Smith and Hogan's "Criminal Law: Cases and Materials, 10th Edn., Chapter 4: Omissions"). 3. Law and morality are never in lockstep. This is where I have to disagree with the person who wrote what is below, for two reasons. First, legislation does not drive a change in social attitudes. Think about it for a moment: if people's minds were only ever changed by changes in the law, then there would never be any changes in the law in the first place. Changes in general moral understanding have to occur first, otherwise there is no impetus to alter legislation. A reforming spirit is required before the act of reform occurs. Where legislative reform appears to change general attitudes, one is actually seeing simply a greater communication of a change in the general morality. The law is far more dependent on what people's sense of morality is than vice-versa, as can be seen in any purposive judicial interpretation. To suggest otherwise is, logically speaking, to put the horse before the cart. Second, the process of legislation is fundamentally slower than that of the individual or public opinion. As soon as a law is passed it is, in effect, out of date. Think of an Act like a newspaper: it does not tell you what the news is _now_, simply what the news was at any given time prior to the publishing deadline. So it is with legislation. Statutes and cases are snapshots. They may well be out of step with public opinion and morality. Even if there was a universal consensus in favour of changing a piece of legislation, it would still take time for the legislative process to give effect to that will. The law is thus out of step with general morality at any given time. One need look no further than Blasphemy laws: they are at odds with the general public opinion that such behaviour should not be subject to criminal (or possibly even moral) sanction, yet they remain on the statute book. Is it true to say that this is synchronous with public morality, let alone to say that that morality is influenced by the letter of the law? The law is not there to serve the whims of those who would impose their particular view of morality upon us. To do so is only to invite disaster. ----- This would have been an argument made by those who were not in favour of legalising homosexuality in the 1950’s. What needs to be realised is that people’s moral views are dependant on what the law states. Homosexuality was made legal when people still did not agree with it but a few people were beginning to change their opinion. The change of the law resulted in people being a lot more open to homosexuals. If we were to legalise prostitution much the same thing would happen. People are beginning to see the sense of legalising prostitution for protection and if the law was changed this view would consequently become more widespread. Our ‘moral fibres’ are mere sheep that follow what is written.