2- Law & Morality Flashcards
What is a rule?
A general norm mandating/guiding conduct.
What are the 2 main theories relating to the nature of law?
- Legal positivism
2. Natural law
What is legal positivism?
Theory of law based on the idea that laws are valid where they are made by the recognised legislative power in the state.
What are the 2 best known classical positivism philosophers?
- Jeremy Bentham
2. John Austin
What are the key facts on Jeremy Bentham?
- Utilitarian & law reformer
- Believed the philosophy of law should be concerned only with what the law is.
- Although some might find a law offensive, it doesn’t affect its validity. Morality is irrelevant to law.
What are the key facts on John Austin?
- Developed the command theory of law, which has 3 principles:
- Laws are commands issued by the uncommanded commander (sovereign)
- These are enforced by sanctions
- A sovereign is one who is obeyed by the majority (can be an individual or a collective (Parliament)).
Who has criticised Austin’s simplistic view of law?
Professor H.L.A. Hart.
What are the key facts on H.L.A. Hart.?
- Legal positivist
- Insists on the separation of law & morality.
- Argues there are 2 categories of rules that form the basis of a workable legal system:
- Primary: Impose legal obligations
(behaviour subject to criminal law)/grant
powers (ex: let people make a will). - Secondary: Concerned with the
operation of primary rules. 3 specific
secondary rules:
a) rule of recognition: sets criteria for
identifying primary rules.
b) rules of change: identify how legal
rules are formed, amended, or
appealed.
c) rules of adjudication: enable the
courts to settle disputes/interpret the
law.
- Primary: Impose legal obligations
What is natural law?
Moral theory of jurisprudence which maintains that law should be based on morality & ethics.
What are the 2 main legal philosophers who are natural lawyers?
- Thomas Aquinas
2. Lon Fuller
What 4 kinds of law does Thomas Aquinas set out?
- Eternal law
- Laws that govern the nature of an eternal universe.
- Ex: laws of gravity
- Natural law
- Moral code which human beings are naturally inclined
towards. - Man-made law must conform to this as it comes from a higher
authority.
- Moral code which human beings are naturally inclined
- Positive divine law
- Commands of God- 10 commandments
- Positive human law
- Must be in accordance with natural law.
What does Lon Fuller argue?
Law serves a purpose, which is ‘to achieve social order through subjecting people’s conduct to the guidance of general rules by which they may themselves orient their behaviour’.
Which 8 principles must the law satisfy in order to achieve its purpose, according to Lon Fuller?
Under the 8 principles, laws should be:
- In existence
- Rules that exist and not created for each specific case.
- Promulgated
- Public and not secret.
- Prospective
- Set out in advance. There are exceptions where irregularities
are remedied.
- Set out in advance. There are exceptions where irregularities
- Clear & concise
- Understood by everyone.
- Not contradictory in nature
- Not require the impossible
- Constant
- Must not keep changing rapidly. It can still change in order to
meet the changing needs of society.
- Must not keep changing rapidly. It can still change in order to
- Applied & administered as stated
- What officials do must be in accordance with the law.
- People mustn’t be subject to arbitrary power.
What is morality?
Defined in the Oxford English Dictionary as a ‘particular system of values & principles of conduct, especially one held by a specified person/society.
Can be personal or collective.
It is prescriptive: specifies what ought to be done & delineates acceptable & unacceptable behaviour.
What has influenced morality in our society?
Religious beliefs:
- Bible provides a moral code for Christian communities in the 10 commandments & the teachings of Jesus. - In Islam, the Koran provides a moral code for Muslims.
What are examples of morality changing over time?
Attitudes to issues such as abortion, homosexuality, drugs & drink-driving.
What 3 factors that have contributed to the breakdown of a collective morality did sociologist (—) identify?
Emile Durkheim
- Increasing specialisation of labour
- Growing ethnic diversity within society
- Fading influence of religious belief
What are the characteristics of legal and moral rules?
- Origin
- Legal: Can be traced back to common law.
- Moral: Bible & Koran form the basis for many.
- Date of commencement
- Legal: AofP have a start date, precedents operate from date of decision.
- Moral: Evolves over time, both collective and individual morality.
- Enforcement
- Legal: Courts- criminal penalties/civil damages
- Moral: Public disapproval and social exclusion. Less enforceable.
- Ease of change
- Legal: Supposedly easy to change
- Moral: Change gradually, over decades/centuries.
- Certainty of content
- Legal: Precise content
- Moral: Knowledge often only acquired informally through exposure.
- Application of rules
- Legal: Apply to everyone covered by the law.
- Moral: Range from universal adoption to only marginal acceptance.
What characteristics do legal and moral rules share?
- Both concerned with setting standards.
- Both dictate way in which people are expected to behave.
- Employ similar language: distinguish right and wrong and speak of responsibilities, duties and obligations.
Are all moral rules part of the law?
No. Many people would agree adultery is immoral, but it’s not illegal in the UK.
Some acts may be considered immoral and not criminal but may be sufficient to support a claim in civil law.
Show examples of how changing moral values have affected the law
- R v R (1991) and the law relating to rape within marriage- HoL overturned the
matrimonial exception to rape. - The Sexual Offences Act 1967 decriminalised homosexual acts.
What is an example of the law conflicting with a collective morality/?
The ECtHR heard the case of Open Door Counselling and Dublin Woman Well Centre v Ireland (1992).
In Ireland abortion is illegal, and the ECtHR found that Ireland’s Supreme Court injunction restraining counselling agencies from providing pregnant women with info concerning abortion facilities abroad violated Article 10 ECHR (freedom of expression).
Which principle did philosopher John Stuart Mill develop as the test to be used when considering where society should (not) be permitted to interfere with individual liberty?
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… Over himself, his own body and mind, the individual is sovereign.”
How does Mill limit the application of his harm principle?
It doesn’t apply to children, and presumably those suffering a severe mental disability.
Who was one of the objectors to Mill’s argument?
Judge Sir James Stephen, who argued that the prevention of immorality in itself justifies state action.
What are the issues with Mill’s principle?
- What constitutes harm? (does it include pornography/drug-taking)
- Does a foetus count as a member of society?
- A logical extension to his approach would be that crimes without victims shouldn’t really be crimes (victimless crimes).
What is the Hart-Devlin debate?
Debate between Law Lord Patrick Devlin & Professor H.L.A. Hart.
Devlin argued:
- Society has a duty to enforce its dominant morality, it therefore has the right to defend itself against private immoral conduct.
- “There must be a toleration of the max individual freedom that is consistent with the integrity of society”- he developed an objective test (that of a reasonable man) to decide where to draw the boundaries.
Hart argued:
- Society shouldn’t interfere with private moral/immoral conduct.
- Enforcement is permitted where the dominant morality is being eroded by a true
threat, not merely a challenge.
How is the legal enforcement of moral values reflected in law?
When faced with complex moral issues-which often happens-, judges, unlike Parliament, must make a decision that could become a precedent.
How is the legal enforcement of moral values reflected in contract law?
The principle that promises should be kept lies beneath the law of contract.
Much of the law of equity is founded upon principles of conscience.
How is the legal enforcement of moral values reflected in tort law?
In the law of negligence, Lord Atkin’s description of the duty of care as one owed to one’s fellow man as a ‘neighbour’ in Donoghue v Stevenson (1932) reworked the parable of the Good Samaritan.
The idea of allowing a claim by a trespasser demonstrates the changing morality of society.
The strict liability rule in Rylands v Fletcher reflects a person’s moral responsibility for the consequences of an escape of something brought onto land.
How is the legal enforcement of moral values reflected in human rights law?
Human rights are based on the principle of respect for the individual, as it is assumed that each person is a moral & rational being who deserves to be treated with dignity. Therefore, morality is expected to be the dominant feature of human rights law.
Some of the rights in the ECHR are absolute rights where a state cannot justify interfering with them (2, 5).
Others are qualified rights, so that if the state can justify a limitation of these rights which is in accordance with the law, there will be no breach (8, 11).
Absolute rights are based on morality and qualified rights find a balance between morality and law.
