ELS-Law and morality

Question 1

John Salmond’s definition of law.

Answer 1

“A body of principles recognised and applied by the state in the administration of justice.”

Question 2

Examples of legal positivists.

Answer 2

Salmond
Professor HLP Hart

Question 3

What do legal positivists believe?

Answer 3

Laws are what are put in place by the state and must be considered laws irrespective of whether they are moral or not.

Question 4

What do believers in natural law believe?

Answer 4

Believe laws are, as it were, written into the universe and exist irrespective of the state.

Question 5

Examples of believers in natural law.

Answer 5

Thomas Aquinas-thought laws come from God.

Question 6

Phil Harris’ definition of morality.

Answer 6

“A set of beliefs, values, principles and standards of behaviour.”

Question 7

What does Mary Warnock point out about morality?

Answer 7

A moral issue is not set and something which at one point might be considered a moral issue may at other times be seen simply as a matter of taste.

Question 8

What does sociologist Emile Durkheim argue about morality?

Answer 8

Simple small societies (e.g., tribe) = tends to be one morality shared by all.

Modern, larger societies = single morality breaks down as people are split by various factors.

Morality as an individual matter = anomie (Durkheim uses this term)

Question 9

What are the various factors by which larger societies are broken down into?

Answer 9

Economic function
Religion and culture
Race

Question 10

Difference between law and morality in regards to origins.

Answer 10

Law = can trace back to origin e.g., Act of Parliament

Morality = Harder to trace back to starting point

Question 11

Factors to consider when talking about the relationship between law and morality.

Answer 11

Origins
Commencement
Enforcement
Ease of changes
Certainty of content
Application

Question 12

Difference between law and morality in regards to their commencement.

Answer 12

Law = clear starting point e.g. after Royal Assent

Morality = Harder to trace to a specific starting point

Question 13

Difference between law and morality in regards to enforcement.

Answer 13

Law = Criminal sentences; paying damages

Morality = Demonstration of disapproval and ostracism

Question 14

Difference between law and morality in regards to ease of changes.

Answer 14

Law = in theory, easy to change through Act of Parliament

Morality = Evolve over time

Question 15

Difference between law and morality in regards certainty of content.

Answer 15

Law = Accessible by looking up Acts of Parliament/judicial precedent

Morality = Vary depending on circumstances e.g., dinner with queen/nightclub

Question 16

Difference between law and morality in regards to application.

Answer 16

Law = Generally apply to everyone in democracies

Morality = Can apply to everyone (no public nudity) but can be contention/disagreement (vegetarianism)

Question 17

Giving example legal rules, moral rules and those which can be considered both.

Answer 17

Legal rule = speeding, strict liability crimes

Moral rules = Lying, having an affair

Both = Murder, theft

Question 18

Example of where changes in law led to changes in public morality.

Answer 18

The Race Relations Acts of 1965, 1968 and 1976 banned discrimination on the grounds of race, and in later decades, this increasingly became morally unacceptable too.

Question 19

Examples of where changes in public morality led to changes in the law.

Answer 19

Through 20th century old ideas that wives belonged to husbands increasingly being seen as immoral, it was then reflected in the introduction of the crime of marital rape in RvR (1991)

Question 20

Examples where the direction of causation between law and morality is difficult to unpick as they affect each other.

Answer 20

Gay sex legalised in 1967 and over later decades homosexuality became increasingly acceptable which then led to further legal changes in 21st century with civil partnerships then gay marriage.

Question 21

Argument that law should enforce moral values.

Answer 21

Natural law believers = man-made laws should adhere to natural laws of universe.

Question 22

Why would it be very difficult for law to enforce moral values?

Answer 22

In a pluralistic society, there is a number of different value systems.
Difficult to know whose the law should enforce.

Question 23

Argument for law should NOT enforce moral values.

Answer 23

John Stuart Mill = ‘harm principle’ which holds that law is not there to uphold moral values.
As much as possible, people should be free to do as they wish and actions should only be made illegal if they negatively effect someone else.

Question 24

Argument against ‘harm principle’ of John Stuart Mill.

Answer 24

Some argue strict adherence to the principle is wrong and the law should be paternalistic (i.e., protect people from themselves) e.g., taking heroin doesn’t hurt anyone else but it should still be illegal.

Question 25

Things to consider when evaluating whether the law enforces moral values?

Answer 25

1. Sanctity of life
2. Violence
3. Difficulty of imposing morality on diverse societies

Question 26

Where the law does and does not enforce moral values in regards to sanctity of life?

Answer 26

Does = Assisted suicide illegal - Frances Inglis
Does NOT = Abortion - law places primary on the personal freedom of the women.

Question 27

Where the law does and does not enforce moral values in regards to violence?

Answer 27

Does = Brown (1993) - appears to demonstrate the law upholding a version of morality.

Does NOT = Wilson (1996) - in contrast appears to adhere to harm principle

Question 28

Cases for where it is difficult to impose morality on diverse societies.

Answer 28

Black & Morgan v Wilkinson (2012)-heterosexual B&B
Bert & Ernie case
Johns and Johns v Derby City Council