For philosophers like Plato there is a very close connection between law and morality as true justice is indispensable to human well-being. The field of ethics has often criticised legal arrangements and how the mechanical application of law provokes ethical and moral injustice.1 The discussion that follows will centre around and discuss the above mentioned conflicting themes in this area.
Firstly it has to be seen whether the existence of unjust laws shows that law and morality are a gulf apart. Secondly whether the existence of laws that serve to defend basic fundamental rights like laws against murder, rape and defamation are a testimony to the compatibility of law and morality. Thirdly that the law only identifies offences and prescribes punishments for crimes and does not take into account the motives and morality behind a defendants actions no matter how noble they are. The fourth theme which is going to be tested in this regard is the internal or habit like nature of morality as opposed to law, as it is said to govern law without compulsion or fear of punishment. Fifthly whether morality can form the basis of making several laws illegal because they are immoral, no matter how procedurally valid they may seem. Last but not the least this essay explores whether the law can be a public expression of morality enshrining the basic principles of acceptable conduct with in a society.2
The statement in the question above comes from the very controversial case of Re A 3 (Children) (Conjoined Twins: Surgical Separation) where the parents of six week old Siamese twins, Mary and Jody,(M and J) appealed against a court order granting the NHS the authority to perform an optional surgical separation .The twin M had severe brain abnormalities, no lung tissue and no properly functioning heart and depended for her blood supply upon J which was her healthy ,normally functioning conjoined twin.4 It was held at first instance that the operation would serve the interests of both the twins by offering J a chance of a normal life and giving M the opportunity to avoid the last few painful months of her life.5 The parents of the conjoined twins appealed and their appeal was dismissed on the basis that ,respect for the wishes of the parents notwithstanding the court was obliged to determine the issue on the basis of the welfare of the children.6It was how
The appellate court concluded that the operation was in the interests of one child, and that a balancing exercise would be required to find a way in between for both the children's interests.7 The justification the court gave for this surgery not being a murder was that it satisfied the parameters of the doctrine of necessity i.e. that
The act was required to avoid inevitable and irreparable evil;
It required no more than would be reasonably necessary to achieve the end8
The evil to be inflicted was not disproportionate to the evil avoided9.
The case is a classic example of the Dworkinian notion of hard cases making bad law which will be subsequently discussed. In this tragic case all three Appeal Court judges accepted that J's interests should prevail over M's
However Ward L.J and his companion judges seemed to accept the inevitable dilemma that they had to face in refusing the appeal and