Morality in English Legal System

This essay discusses the relation between morality and English legal system. It identifies the grounds where the English legal system is reflecting the moral principles. It also discusses the duties of solicitors while selling properties.

Running head: LAW & ETHICS
Morality in English legal system
Name of the student:
Name of the university:
Author note

1LAW & ETHICS
Portfolio item 1:
Law is set of rules and application that must be followed by everyone to maintain
discipline in the society. Sir John Salmond has described law as body of principles that has
an objective to bring justice and protect the common people from any criminal activities1. On
the other hand, morals denote certain values and principles that are differentiating between
the right and the wrong things. In this essay, an attempt has been made to identify the
grounds where the English legal system is reflecting the moral principles. The principles of
law are quite different compared to the morals and ethics. The rules of law are mandatory and
the rules of morals or ethics are voluntary. However, both the terms are normative in nature
and it is important to include the principles of morals within the legal provisions for the
betterment of the society. The principles of morality have been engraved under the English
legal system since long. The relation in between the legal system and morality can be
understood from the history and origin of both the system. This essay contains certain
effective documents regarding the same. According to the English Jurists, moral principles
help to choose a right or wrong act and drive his motive thereby2. The literal meaning of this
statement is that through the moral principle, a person can understand the difference in
between a right thing and a wrong thing. The jurists have interpreted the term as a medium
that direct a person to conduct an act as per his conscience. However, under the English legal
system, two approaches are made regarding the interpretation of morality within law. The
first approach is regarded as the subjective approach and the second approach is considered
as objective approach. The term subjective approach denotes perspective of the individual
and objective approach refers to the contents that are based on facts. In this essay, an
objective approach has been made to point out the relation between the two systems. In the
1 Wellman, Carl. "Rights (General)." Encyclopedia of the Philosophy of Law and Social Philosophy (2017): 1-7.
2 Bosselmann, Klaus. The principle of sustainability: transforming law and governance. Taylor & Francis, 2016.

2LAW & ETHICS
words of Kneale, moral principles make a claim reasonable and he has expressed his support
in favour of the objective character of morality. Moral conclusion is considered as the
fundamental feature regarding the formation of English law. However, in the modern world,
the necessity of moral provision has been increased under the legal system and it has been
observed that the jurists have made different attempts to explore the personal improvement of
a human being. The role of English legal system in case of morality has been identified and
the opinions of several legal scholars have been mentioned in this regard. According to
Walter, protection of civilisation can be possible only after the proper assimilation of legal
and moral principles3. Further, it can be stated that law governs the rules and application of
any act or work while the moral principles are governing the ethical submission of an act or
work. It decides whether the act is right or wrong. However, law and ethics are related to
each other. According to H. L. A. Hart, proper application of law is not possible without
establishing the moral consideration4.
In the English legal system, the term human freedom is included within law and
morality5. According to Servais Pinckaers6, in this modern era there is subjective conception
of rights. Further, it is the duty of an individual to obey the principles of law on the basis of
moral aspects. Apart from this, it can be stated that the parties should maintain a legal
provision if the base of the rules are intrinsically right. Moral obligation creates greater
impact on individual. The strength of law is depending on the moral character of the citizen.
In case of English Law, the concept of moral rules is based on certain concepts. Kneale has
propounded the first theory by stating the fact that moral rules are the expression of God7.
3 Vaughn, Lewis. Doing ethics: Moral reasoning and contemporary issues. WW Norton & Company, 2015.
4 Hart, Herbert Lionel Adolphus. "Positivism and the Separation of Law and Morals." Law and Morality.
Routledge, 2017. 63-99.
5 Rembar, Charles. The law of the land: The evolution of our legal system. Open Road Media, 2015.
6 Pinckaers, Servais. The Spiritualiity of Martyrdom. CUA Press, 2016.
7 Kneale, James. The European Convention on Human Rights in European Union Law: Judicial Interpretation
and Competence Creep. A British Perspective. Diss. College of Europe, 2016.

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Cheng (2018) opines that ethical approach has been applied in case of civil
liabilities and ethical principles helped the process of proper adjudication of legal provisions8.
Civil laws or laws of the society have engraved certain provisions for the wrongdoer so that
they can be is penalised for their wrongful acts. It has also been stated under the civil acts that
no person is allowed to infringe the legal rights and it is their duty to follow all the rules
carefully. Further, the moral concept helps to increase the self-dignity within a person. The
principle of human rights is obtained their core from the morality. Therefore, the increasing
amount of self-dignity helps to seed the human rights policies within the human being. The
civil liabilities are much depended on the social structure and according to this structure, all
citizen are required to abide by the provisions of law to maintain peace and justice9. In case of
any imbalance to this aspect can be created social disobedience and therefore, ethical
consideration of the civil society is important to this aspect. Morality is based on the ethical
behaviour of the citizen at large and unless the citizen can differentiate between the rights and
wrongs, prosperity is not possible.
Further, ethics and morality are important in order to establish the principle of
human rights10. In case of democratic system, human rights are the most important thing and
the society should have to maintain all the rules by which the rights of the human being can
be established. Further, a universal requirement regarding the human rights has been made
after the end of Second World War. Most of the principles of Human Rights are based on the
ethical consideration as all the human rights principles are based on human dignity and
therefore, the people are required to make effective differentiation in between the rights and
8 Cheng, Kevin Kwok‐yin. "Legitimacy in a Postcolonial Legal System: Public Perception of Procedural Justice
and Moral Alignment Toward the Courts in Hong Kong." Law & Social Inquiry 43.1 (2018): 212-228.
9 Worrall, John L., and Frank Schmalleger. Policing. Pearson, 2015.
10 Wellman, Carl. The proliferation of rights: Moral progress or empty rhetoric?. Routledge, 2018.

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the wrongs11. According to the principles of the human rights, all individuals must be treated
equally and the doctrine of non-discrimination should be maintained at all stages12. Therefore,
it can be stated that the principle of ethics and human rights are inter-related to each other. It
has been mentioned in R v Brown13 that consent is no defence in case of physical assault in
case of consensual sex. It is against the policy of human rights.
Portfolio Item 2
In this chosen case study, it can be mentioned that Katie, an elderly person for selling her
property, has appointed a solicitor. In regards to the aforementioned statement, it can be said
that a solicitor has certain duties while acting on behalf of the clients who intend to sell their
properties. The duties of the solicitors have been drafted in the SRA Code of Conduct.
According to Rule 3 of the Code, the solicitors should have to avoid all the conflicts of
interest and he must act to secure the interest of his clients. The process of transferring the
ownership of property is termed as conveyance. It is to be mentioned that it is the duty of the
solicitor to notify the buyer as well as the seller about any dispute or issue existing in the
property. Some of the issues that may be identified during conveyance are enumerated below:
 Rights of others in the property or rights related to
 Rights of neighbors or rights of any of person to encroach upon such property
 Public claims
 Rights of local councils relating to acquisition of property or charges which are
unpaid for making roads
 Validation of ownership of the seller to prove that the seller is willing to sell the land.
11 Freeman, Michael. Human rights. John Wiley & Sons, 2017.
12 Ingram, David. "Mediating the Theory and Practice of Human Rights in Morality and Law." Moral and
Political Conceptions of Human Rights: Implications for Theory and Practice (2017): 97.
13 [1993] UKHL 19, [1994] 1 AC 212

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These are the duties of the solicitor regarding the conveyance process and can be termed
as the legal obligation. Except these, there are certain moral obligations present in this case
too. It has been observed that the medical condition of Kath is critical and therefore, the
intention of the solicitor should be to help her to all respect. The solicitor should act in good
faith and he owes certain duty of care to her. Overall, the solicitor is required to act for the
best interest of Kath. It is to be noted that a solicitor for selling property in England and
Wales must undertake some steps to ensure that such sale is in compliance with legal and
ethical standards14.
The first stage of the solicitor is to prepare the agreement of sale. An agreement of sale is
a contract, which will intend to bind the buyer and seller in a legal relationship and will
govern the terms of the sale. For preparing the agreement, the solicitor must obtain the title
deed of the property from the seller and must ask the seller to fill a detailed questionnaire.
The solicitor is also required to gather all the relevant legal information and prepare a
contract. Such contract must be sent to the seller for inspection to the seller. The solicitor in
the initial stage is required to request the seller to fix a settlement figure for the mortgage and
other loans, which are secured15. He must also negotiate with the parties and fix a date for
moving. In the pre-contractual phase, the buyer of the property makes an offer to the seller.
Such price is the subject to the terms of the offer. The solicitor has certain moral duties too.
The physical condition of Kath is not good. Therefore, the solicitor should have to arrange all
the meetings with the parties and will take care of the selling process. The cost of the
property is required to be sufficient for the medical expenses of Kath.
14 Blount, Simon, and Claire Martin. "Property: eConveyancing: Principles, platforms and procedures." LSJ:
Law Society of NSW Journal 38 (2017): 82.
15 Moran, Peter, and Toby Blyth. "Solicitor's liability to estate beneficiaries." LSJ: Law Society of NSW
Journal 17 (2015): 94.

6LAW & ETHICS
The next stage in the process of conveyance includes exchange of agreements16. The
solicitor in this stage will ensure that the contracts are exchanged between the buyer and the
seller. Upon exchange of the contracts the solicitor will be entitled to receive a deposit from
the buyer as down payment. The Solicitor in the second stage of conveyance has to organize
the final accounts of the seller and has to prepare a final settlement to be presented to the
seller. The solicitor must prepare and approve the deed of transfer and arrange for the
signature of the seller and the buyer17.
The stage of the process of conveyance is referred to as the completion stage. In the third
stage of the process of conveyance, a solicitor is required to pay off the mortgage amount and
has to intimate the land registry. The solicitor must hand over the deeds and send the balance
amount to the client which in this case is Kath.
It is to be mentioned that the Rule 18 of the Solicitor’s Code of Conduct deals with the
procedures to be while selling a property. Rule 18 of the aforementioned code of conduct was
amended by the Solicitors’ code of conduct on August 1 2007. The same rule was later
amended in March 2009 for the purpose of updating the rules of selling the property and to
introduce the legal disciplinary practices and firm based regulations as given in Legal
Services Act 2007. It is to be stated that the rules set out the provisions for selling property
through solicitor firms.
According to section 18.01 of the aforementioned code it is to be stated that while
transferring the ownership in any property solicitors must ensure that:
 Relevant staff are appointed for carrying out the services
16 Williams, Lucy. "Risk: Real property changes: Risk management tips for solicitors." LSJ: Law Society of
NSW Journal 30 (2017): 76.
17 Guide, Global Property. "Buying Property in Ireland| How To Buy a House in Ireland." (2017).

7LAW & ETHICS
 Any amount which is in excess of the prescribed limit is asked for from any
prospective buyer18
 Accurate and relevant details of the transaction are provided to the clients about the
offers that have been received from prospective buyers in respect of the interest in the
property concerned.
According to Section 18.2 of the act, it is the duty of the solicitor to comply with the
provisions of the Home information Packs Regulations as made under the Housing Act 2004.
It is to be stated that the solicitor must be competent as prescribed in section 19 of the Estate
Agents Act 1979 by the Secretary of state.
It is to be mentioned in accordance with subsection 1 of section 18.02 of the act that after
being appointed to act as a solicitor in the sale of a property, the solicitor must intimate the
client by a written statement about the agreement between the client and the solicitor19. Such
agreement must contain the identity of the property, the interest in the property to be sold, the
price to be sought, the amount of fee to be demanded by the solicitor for the services to be
provided and the method of fee calculation, the circumstance when the fee is to be paid, an
fee paid to others for seeking their services, and charges of VAT. Further, it is to be stated
that it is the duty of the solicitor to mention in the written statement whether such solicitor is
a sole agency or has sole selling rights in the property. Such written statement should also
contain clear explanation of the terms of the agreement and must aim to indicate the parties
about the intention of the seller20. The written statement must provide a clear explanation of
terms such as “ready, willing and able buyer” if the same is incorporated in the statement.
18 Zwier, Nechama. "Liquidators' duty of care in selling assets." Australian Restructuring Insolvency &
Turnaround Association Journal 29.2 (2017): 36.
19 'Code Of Conduct: Rule 18 – Property Selling' (Sra.org.uk, 2018) <http://www.sra.org.uk/Solicitors/code-of-
conduct/rule18a.page> accessed 2 March 2018
20 Kye, Tran-Tsai. "Property law: When the developers come knocking: Considerations when selling a strata
block." LSJ: Law Society of NSW Journal 34 (2017): 76.

8LAW & ETHICS
The conduct of the solicitors should be based on the SRA code of conduct. It helps to protect
the client and the public by serving positive outcomes of any regulation and it helps to
understand the rights and obligation of the firm. However, there are certain risk-oriented
enforcements engraved under the Code. The principles of the Code help to help a solicitor
when they are facing the ethical dilemmas. In this case, both the legal and moral duties have
been explained.

9LAW & ETHICS
Bibliography:
Journal
Blount, Simon, and Claire Martin. "Property: eConveyancing: Principles, platforms and
procedures." LSJ: Law Society of NSW Journal 38 (2017): 82.
Moran, Peter, and Toby Blyth. "Solicitor's liability to estate beneficiaries." LSJ: Law Society
of NSW Journal 17 (2015): 94.
Williams, Lucy. "Risk: Real property changes: Risk management tips for solicitors." LSJ:
Law Society of NSW Journal 30 (2017): 76.
Zwier, Nechama. "Liquidators' duty of care in selling assets." Australian Restructuring
Insolvency & Turnaround Association Journal 29.2 (2017): 36.
Books
Bosselmann, Klaus. The principle of sustainability: transforming law and governance. Taylor
& Francis, 2016.
Cheng, Kevin Kwok‐yin. "Legitimacy in a Postcolonial Legal System: Public Perception of
Procedural Justice and Moral Alignment Toward the Courts in Hong Kong." Law & Social
Inquiry 43.1 (2018): 212-228.
Freeman, Michael. Human rights. John Wiley & Sons, 2017.
Guide, Global Property. "Buying Property in Ireland| How To Buy a House in Ireland."
(2017).
Hart, Herbert Lionel Adolphus. "Positivism and the Separation of Law and Morals." Law and
Morality. Routledge, 2017. 63-99.

10LAW & ETHICS
Ingram, David. "Mediating the Theory and Practice of Human Rights in Morality and
Law." Moral and Political Conceptions of Human Rights: Implications for Theory and
Practice (2017): 97.
Kneale, James. The European Convention on Human Rights in European Union Law:
Judicial Interpretation and Competence Creep. A British Perspective. Diss. College of
Europe, 2016.
Pinckaers, Servais. The Spiritualiity of Martyrdom. CUA Press, 2016.
Rembar, Charles. The law of the land: The evolution of our legal system. Open Road Media,
2015.
Vaughn, Lewis. Doing ethics: Moral reasoning and contemporary issues. WW Norton &
Company, 2015.
Wellman, Carl. "Rights (General)." Encyclopedia of the Philosophy of Law and Social
Philosophy (2017): 1-7.
Wellman, Carl. The proliferation of rights: Moral progress or empty rhetoric?. Routledge,
2018.
Worrall, John L., and Frank Schmalleger. Policing. Pearson, 2015.
Case law
R v Brown [1993] UKHL 19, [1994] 1 AC 212
Legislation
Legal Services Act 2007
Housing Act 2004

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Websites
'Code Of Conduct: Rule 18 – Property Selling' (Sra.org.uk, 2018)
<http://www.sra.org.uk/Solicitors/code-of-conduct/rule18a.page> accessed 2 March 2018