An Ancient Power Struggle Between Morality And Legal Authority

783 Words Apr 4th, 2016 4 Pages
It is appropriate to say that there has been an ancient power struggle between morality and legal authority. The tenacity of sado-masochistic practices has further tugged the ropes of these concepts apart as arguments have risen about the interference of the law in private and consensual activities on the basis of the preservation of the moral fabric of the society. There is a view, that courts should maintain a residual power to control moral issues, physical harm or not. However, according to the harm principle, ‘…the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant’ Despite this principle, the position of criminal law on the society’s sense of morality and an individual’s right to privacy and freedom has remained a turbulent one. Particular emphasis is given to this legal dilemma within the context of R v Brown [1994]. In this case, the House of Lords was asked to consider the relevance of consent to the offences of assault occasioning actual bodily harm and unlawful wounding. This essay will seek to critically analyse the decision of the House of Lords with regard to the role of criminal law in controlling ‘private’ ‘consensual’ behaviour in comparison with non sexual activities such as boxing and football where consensual infliction of actual bodily harm is not criminalised.
The facts of the R v Brown case…

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