Law and morality cannot mix. The law is the law and to consider morals would undermine the law as we know it.

Critically consider this statement.

This question requires the student to consider whether morality and moral values ought to play a role in the legal system.

The introduction should involve a statement of the student’s argument, quite simply, do they agree or disagree with the statement, and to what extent they agree or disagree. This will then form the basis for the rest of the student’s answer.

Students are best advised to define the principle of morality but note that morality is a subjective concept. Students may question whether subjectivism has any place in the ELS. Further, a student may question whose subjective morality we are considering – naturally it will be that of the law makers; however, does that truly represent the morality of society (if one can even say morality has a single idea of morality). Students may, of course, make clear that morality is a natural part of the law making process – for example, the majority of individuals would agree that killing another is morally wrong unless justified. This forms, and continues to form, the basis for our law of murder and manslaughter. Further to this, morality remains a distinct element of sexual offences and consent – in England and Wales, the age of consent is 16; however, in other jurisdictions the age of consent is lower, or it may even be higher – this shows that morality remains an element of law making, although it may not be as obvious or overt as other areas of law.

Students would be expected to refer to a number of examples where morality formerly played a role in law making, but no longer does (well… to an extent). For example:

• Homosexual conduct between two consenting adults over 21 was previously unlawful until 1967. The Sexual Offences Act 1967 demonstrates a shift away from this previously held moral belief – although a student would be correct in asserting that such moral beliefs against homosexuality is still held by a number of the population.
• Abortion whether medically certified or not was illegal prior to the Abortion Act 1967. Again, however, the right to abort is still subject to considerable moral dilemmas and does split the population. A student can go further and argue that although abortion itself has become much more acceptable, the stage at which abortion is permitted (i.e. the number of weeks into the pregnancy) is still a matter that is contested.

It is essential that in considering these examples, the student does not merely state and explain the law as it was and how it is now, they must engage with the law and sources used. Do they agree with a particular law or disagree, to what extent etc. Further to this, each point that is raised must be linked back to the question asked – as a result of the example, should morality and law be cohesive?

Students should offer an overall conclusion that seeks to reaffirm their position and answer the question asked.

The law is a dynamic and contemporary subject. It cannot survive without its context.

Critically discuss this statement

This question requires the student to consider the extent to which the political, economic, social factors (etc.) play a role in the law. This question is a bit different from the first in that students are not asked to agree or disagree with the statement (i.e. whether morals should play a part in law). Rather, this question is seeking students to critically discuss the extent to which such factors play a role in shaping modern law.

The introduction should involve a statement as to what the student understands to be the “context” of the law. The student may also explain what they consider to be the most influential (or important) contextual factor in the ELS – does one outweigh the other, if so why?

Students may then proceed to discuss the various factors that influence, direct and source our English law (what we called the “dynamism” of the ELS). Examples include:

• Political factors: Parliament is made up of MPs who are elected into power. MPs will vote in favour of laws that they agree with or feel they may benefit from. Re-election may affect the manner that an MP acts.
• Sociological factors: In making the law, Parliament relies upon expert opinion to inform them of the effects a law may have on society. In doing so, the experts will look at how certain policies will affect individuals. This in itself may have a great effect on whether the policy is implemented and if so in what way.
• Economic factors: Funding will determine whether the law is feasible to be implemented. In may result in the law being implemented in stages or in particular areas first. It may result in the law never being introduced at all.

In providing these circumstances, or examples, of dynamism in the law, the student should include examples of how these different factors have played a part in real life events. Take for example the political factor – MPs voting on the HS2 (High Speed Railway) or the creation of a new runway at Heathrow Airport demonstrate votes on matters that they agree with or disagree with. In terms of sociological factors, MPs have voted against the Government in relation to leaving the EU despite the referendum in favour of doing so – they did so as they believed the general public were better off remaining in the EU. To vote against the government was also a vote against the referendum but sociological factors bore down on certain MPs to act contrary to their party whip.

Students must conclude their work by referring back to the question asked and summarising their position – can the law be considered in a factual vacuum or is there a need to consider its social and political dynamism? Does one factor outweigh the others?