Law and morality: the distinction between legal and moral rules, the overlap and divergence between them, and the Hart-Devlin debate on whether the law should enforce morality.

What this dot point is asking

OCR Component 3 Section A requires you to explore the nature of law rather than black-letter rules. This dot point is about the relationship between law (rules enforced by the state) and morality (shared and individual beliefs about right and wrong), where they overlap and diverge, and the famous Hart-Devlin debate on whether the law should enforce morality. Section A questions are extended-response evaluation essays (AO3), so the skill is to build a critical argument and reach a judgement.

The answer

The distinction between law and morality

Overlap and divergence

Law and morality overlap considerably: the most serious crimes (murder, rape, theft, assault) are also serious moral wrongs, and much of the criminal and civil law reflects shared moral values. But they also diverge:

• Some acts are legal wrongs but not moral wrongs: many regulatory offences (parking on a yellow line, minor licensing breaches) carry no moral stigma.
• Some acts are moral wrongs but not legal wrongs: adultery, lying to a friend, or breaking a promise are widely thought immoral but are generally not unlawful.

The gap shows that law and morality are related but distinct, and that the law makes choices about which moral standards to enforce.

The Hart-Devlin debate

The key debate is whether the law should enforce morality, prompted by the Wolfenden Report (1957), which recommended that private homosexual acts between consenting adults be decriminalised because they were "not the law's business".

• Lord Devlin argued that society is held together by a shared, common morality, and that the law is entitled to enforce that morality, even in private, because conduct that undermines it threatens society with disintegration. On this view there is a public interest in maintaining moral standards.
• Professor Hart, drawing on John Stuart Mill's harm principle, argued that the only legitimate reason to restrict a person's freedom is to prevent harm to others. The law should not enforce private morality, because doing so is illiberal, morality is not universal, and the state should respect individual autonomy.

Examples in context

A strong Section A answer sustains evaluation throughout, using examples to test each position, and ends with a clear judgement.

Try this

Q1. Explain, with examples, the difference between legal rules and moral rules. [shown at the 10-mark level for revision; Section A questions are extended-response 20-mark essays]

• What the marker wants. Precise AO1 within an evaluative frame: legal rules are state-enforced, certain and sanctioned; moral rules are shared beliefs, slowly changing and not centrally enforced; with examples of overlap (murder) and divergence (parking offences, adultery).

Q2. Discuss the extent to which the decision in R v Brown shows that the law enforces morality. [Section A extended-response evaluation, 20 marks]

• Cue. An AO3 evaluation: R v Brown (consent no defence to sado-masochistic harm) reflects Devlin's view that the law may enforce a moral standard even on consenting adults in private; weigh this against Hart and Mill's autonomy argument and reach a judgement.