2- Law & Morality

Question 1

What is a rule?

Answer 1

A general norm mandating/guiding conduct.

Question 2

What are the 2 main theories relating to the nature of law?

Answer 2

1. Legal positivism

2. Natural law

Question 3

What is legal positivism?

Answer 3

Theory of law based on the idea that laws are valid where they are made by the recognised legislative power in the state.

Question 4

What are the 2 best known classical positivism philosophers?

Answer 4

1. Jeremy Bentham

2. John Austin

Question 5

What are the key facts on Jeremy Bentham?

Answer 5

• 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.

Question 6

What are the key facts on John Austin?

Answer 6

• Developed the command theory of law, which has 3 principles:
  
  1. Laws are commands issued by the uncommanded commander (sovereign)
  2. These are enforced by sanctions
  3. A sovereign is one who is obeyed by the majority (can be an individual or a collective (Parliament)).

Question 7

Who has criticised Austin’s simplistic view of law?

Answer 7

Professor H.L.A. Hart.

Question 8

What are the key facts on H.L.A. Hart.?

Answer 8

• 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:
  
  1. Primary: Impose legal obligations
     (behaviour subject to criminal law)/grant
     powers (ex: let people make a will).
  2. 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.

Question 9

What is natural law?

Answer 9

Moral theory of jurisprudence which maintains that law should be based on morality & ethics.

Question 10

What are the 2 main legal philosophers who are natural lawyers?

Answer 10

1. Thomas Aquinas

2. Lon Fuller

Question 11

What 4 kinds of law does Thomas Aquinas set out?

Answer 11

1. Eternal law
   
   • Laws that govern the nature of an eternal universe.
   • Ex: laws of gravity
2. 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.
3. Positive divine law
   
   • Commands of God- 10 commandments
4. Positive human law
   
   • Must be in accordance with natural law.

Question 12

What does Lon Fuller argue?

Answer 12

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’.

Question 13

Which 8 principles must the law satisfy in order to achieve its purpose, according to Lon Fuller?

Answer 13

Under the 8 principles, laws should be:

1. In existence
   
   • Rules that exist and not created for each specific case.
2. Promulgated
   
   • Public and not secret.
3. Prospective
   
   • Set out in advance. There are exceptions where irregularities
     are remedied.
4. Clear & concise
   
   • Understood by everyone.
5. Not contradictory in nature
6. Not require the impossible
7. Constant
   
   • Must not keep changing rapidly. It can still change in order to
     meet the changing needs of society.
8. Applied & administered as stated
   
   • What officials do must be in accordance with the law.
   • People mustn’t be subject to arbitrary power.

Question 14

What is morality?

Answer 14

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.

Question 15

What has influenced morality in our society?

Answer 15

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.

Question 16

What are examples of morality changing over time?

Answer 16

Attitudes to issues such as abortion, homosexuality, drugs & drink-driving.

Question 17

What 3 factors that have contributed to the breakdown of a collective morality did sociologist (—) identify?

Answer 17

Emile Durkheim

1. Increasing specialisation of labour
2. Growing ethnic diversity within society
3. Fading influence of religious belief

Question 18

What are the characteristics of legal and moral rules?

Answer 18

1. Origin
   
   • Legal: Can be traced back to common law.
   • Moral: Bible & Koran form the basis for many.
2. Date of commencement
   
   • Legal: AofP have a start date, precedents operate from date of decision.
   • Moral: Evolves over time, both collective and individual morality.
3. Enforcement
   
   • Legal: Courts- criminal penalties/civil damages
   • Moral: Public disapproval and social exclusion. Less enforceable.
4. Ease of change
   
   • Legal: Supposedly easy to change
   • Moral: Change gradually, over decades/centuries.
5. Certainty of content
   
   • Legal: Precise content
   • Moral: Knowledge often only acquired informally through exposure.
6. Application of rules
   
   • Legal: Apply to everyone covered by the law.
   • Moral: Range from universal adoption to only marginal acceptance.

Question 19

What characteristics do legal and moral rules share?

Answer 19

1. Both concerned with setting standards.
2. Both dictate way in which people are expected to behave.
3. Employ similar language: distinguish right and wrong and speak of responsibilities, duties and obligations.

Question 20

Are all moral rules part of the law?

Answer 20

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.

Question 21

Show examples of how changing moral values have affected the law

Answer 21

1. R v R (1991) and the law relating to rape within marriage- HoL overturned the
   matrimonial exception to rape.
2. The Sexual Offences Act 1967 decriminalised homosexual acts.

Question 22

What is an example of the law conflicting with a collective morality/?

Answer 22

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).

Question 23

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?

Answer 23

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.”

Question 24

How does Mill limit the application of his harm principle?

Answer 24

It doesn’t apply to children, and presumably those suffering a severe mental disability.

Question 25

Who was one of the objectors to Mill’s argument?

Answer 25

Judge Sir James Stephen, who argued that the prevention of immorality in itself justifies state action.

Question 26

What are the issues with Mill’s principle?

Answer 26

1. What constitutes harm? (does it include pornography/drug-taking)
2. Does a foetus count as a member of society?
3. A logical extension to his approach would be that crimes without victims shouldn’t really be crimes (victimless crimes).

Question 27

What is the Hart-Devlin debate?

Answer 27

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.

Question 28

How is the legal enforcement of moral values reflected in law?

Answer 28

When faced with complex moral issues-which often happens-, judges, unlike Parliament, must make a decision that could become a precedent.

Question 29

How is the legal enforcement of moral values reflected in contract law?

Answer 29

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.

Question 30

How is the legal enforcement of moral values reflected in tort law?

Answer 30

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.

Question 31

How is the legal enforcement of moral values reflected in human rights law?

Answer 31

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.