3. Nature Of Law: Law And Morality Flashcards
Gillick v West Norfolk 1986
Mother civil case against doctor prescribing her daughter contraceptives. Lost at House of Lords. Highlighted the rights of young people to make decisions regarding medical treatment.
What’s “Gillick competent” about?
Children being able to make decisions about themselves.
What are the approaches to law?
Hebraric
Greek
Thomist
What is the hebraric approach?
10 commandments
What is the Greek approach?
Law based on reason and natural order
What is the Thomist approach?
St Thomas Aquinas - natural law which is part of moral law can be discovered by exercising rational thought. Everything else by scripture.
Wolfenstein Committee Report 1957
Looked at how law should reflect morality on homosexuality and prostitution.
Law should preserve public order and decency and safeguard against exploitation… The law should not intervene in private lives further than necessary to carry out above.
What did Lord Devlin believe?
Law and morality went hand in hand.
Public morality should be ascertained by a jury.
Brown 1994
Defendants had committed various sadomasochistic acts that resulted in injury.
Deemed unlawful by House of Lords to protect public from immoral acts.
R v Wilson 1996
Defendant used hot knife to brand wife’s bum.
Acquitted as no different to tattooing.
What would Professor Hart say?
Unnecessary for law to act in “immoral” cases as society will not fall. Morality changes so shouldn’t be put into law.
Law is made of primary and secondary rules. Primary are existing rules of a given group. Secondary is concerned with procedure.
What’s Professor Dworkin’s view?
Rules and principles. Rules are dogmatic whereas principles are guidelines - a reason to make an arguement in one direction but not a decision.
