CRIMINAL LAW AND MORALITY: INFLUENCE & IMPACT
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Abstract
Since the dawn of civilization, Mankind has been guided by two main forces: legal laws, and extra- legal laws. The extra- legal laws have broadly been divided into religious laws and moral laws. This project will focus primarily on the relation between Criminal Law and the latter of these.
Before proceeding, however, it would be prudent to examine what exactly these morals are.
The Oxford Dictionary defines “morals” as “standards of behavior; principles of right and wrong”. However, it is to be noted at this stage that the concepts of ‘right’ and ‘wrong’ are highly relative, and what is considered right (or even not- wrong) by one individual or section of society may be considered wrong by another. An example of this that is pertinent to the debate at hand is the criminalization of cow slaughter in Maharashtra in 2014. This is an example that will also be analyzed in considerable detail in this project, for its pertinence to Indian society, as well as the questionable motives behind the same. Another example that I shall focus on in considerable detail is the criminalization of certain sexual offences, such as homosexuality and prostitution. It is important to note that all of these ‘offences’ are all mala prohibita, and not mala in se, i.e., they are offences only by virtue of their being expressly prohibited by law, and not because they are inherently wrong in themselves.
Through the course of this paper, I will aim to establish whether or not there exists a nexus between criminal law and morality, and if so, how this relationship exists in light of the subjective nature of ‘right’ and ‘wrong’, given that these concepts appear to be the binary that comprises the moral code. In order to do this, I will rely heavily on the views of J. S. Mill, H. L. A. Hart, Lord Patrick Devlin, and the Wolfenden Committee Report on Homosexual Offences and Prostitution, 1927.
While it is true that the majority of the aforementioned sources focus primarily on the criminalization of homosexuality and prostitution, they will be used mainly for extracting views on the nature between criminal law and morals in general, as compared to homosexuality in specific. I will begin this project with an analysis of some important thinkers’ perspectives on the same, and then proceed to give my understanding of the concept, along with the influences and impacts of intertwining criminal law and morality.
I will also establish in the latter part of this project why the enforcement of morals in criminal law – and indeed law in general – have no place in a democratic, secular society such as the one we profess ourselves to be.
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