Law and Morality Flashcards
what is the meaning of law
an enforceable rule which determines how we behave
what are the two main theories about if laws should also be moral
legal positivism
natural law
what is the rule and cases of legal positivism
theory that laws are valid if made by recognised legislative power
(Bentham)-utilitarian-“a law which exists is a law, though we happen to dislike it”
(Austin)-command theory of law-laws are commands issued by the sovereign and enforced by sanctions
(HLA Hart)-believed in separation of law and morality
what is the rule and cases for natural law
validity of man made laws depends on whether they are compatible with a higher moral authority-law should be based on morality
(Aquinas)-natural law is moral code which comes from a higher authority-man made law must conform with it
(Fuller)-laws purpose is to achieve social order-people’s conduct should be guided by rules-law should have an inner morality
what is the meaning of morality
dictionary-a system of values and principles of conduct
can be personal morality or a collective morality of society
morality is prescriptive-it specifies what ought to be done and describes acceptsble and unacceptable behaviour
influenced largely by religious beliefs
change over time
in past, society had more of a common morality
-Durkheim-factors which have contributed to the breakdown of common morality-growing ethnic diversity in society and fading influence of religion
what are the characteristics of legal rules
origins-can trace back to a source-common law,statute, delegated legislation, EU law
date of commencement-have a start date
enforcement-courts give appropriate sanctions
ease of change-theoretically easy-parliament can pass law whenever it wants
application-apply to everyone in a particular situation which is covered by law
what are the characteristics of moral rules
origins-difficult to trace back
date of commencement-evolve-changes over years
enforcement-public disapproval and social ostracism rather than formal sanctions
ease of change-change gradually over decades and centuries
application-some almost universal some only marginal-different morals held by different individuals and sections of society
what is the diversity of moral rules in a pluralistic society
individuals have different or no religious beliefs-greater variety of moral values of individuals in society
individual’s views and their right to express them is protected under Human Rights
difficult to decide when greater good of society should prevent individuals view which considered as unacceptable from being expressed
there is an attempt to keep morality and religion out of politics and law
where are the similarities of legal and moral rules
both set standards of behaviour of individuals in society
both dictate how people are expected to behave
both use similar language
legal rules are strengthened when they are the same as moral rules-enforcement more easily justified and accepted by society
some are same
what are the differences between law and morality
some legal rules have no moral content
strict liability doesn’t seem to have moral aspect
many moral rules are not part of the law
-but some immoral acts not covered by criminal law are covered in civil
what are the influences of law and morality on each other
changing moral values can lead to developments in the law (RvR)
change in law can lead to change in morality e.g. discrimination laws
what are the cases for whether and to what extent law should seek to enforce moral views
(John Stuart Mill v Sir James Stephens)
(Hart-Devlin) debate
what does (John Stuart Mill v Sir James Stephens) say
- (Mill)-should limit interference of collective opinion and have individual independence-harm principle-individual should be allowed to harm self
- (Stephens)-disagrees with Mill-“there are acts of wickedness so gross and outrageous that they must be punished”
what does the (Hart-Devin) debate say
wolfenden report-advised on legalising homosexuality-“must be a realm of private morality and immorality which is not the law’s business)
(Devlin)-“without shared ideas on politics, morals and ethics. no soviet can exist”-society should defend itself against immorality-private immorality should be punished as it is harmful to society
(Hart)-society should not interfere with private moral/immoral conduct but can if there is a true threat to cohesion of society-genuine public nuisance
what are the examples and cases of legal enforcement of moral values in tort law
vicarious liability-no fault for employer (immoral) but they do take product so should take costs (moral)?
negligence-duty of care (Donoghue v Stevenson)-neighbour principle (moral) but limited claims for psychiatric harm or economic loss (immoral)
occupiers’ liability-duty of care to trespassers-OLA 1984-gives trespassers right to claim if injured while trespassing
rylands v fletcher-protests others but strict liability
