ABSTRACT
The links between law and morality constitute the subjectmatter of an age-old jurisprudential debate. Ought the law to concern itself with morality? Ought the law to reflect shifts in public opinion concerning moral questions? What significance ought to be attached to Lord Simonds’ assertion in Shaw v DPP (1962) that the courts retain a residual power, where no statute has intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare? Ought the law to intervene in order to prevent an individual’s chosen course of action which moves him along ‘the primrose way to the everlasting bonfire’? (See, more recently, the decision of the House of Lords in R v Brown (1993)—consent is no defence to sado-masochistic assault.)
Korkunov, in his Theory of Law (1900), states:
‘The distinction between morals and law can be formulated very simply. Morality furnishes the criterion for the proper evaluation of our interests; law marks out the limits within which they ought to be confined. To analyse out a criterion for the evaluation of our interests is the function of morality; to settle the principles of the reciprocal delineation of one’s own and other people’s interests is the function of the law.’
