Law and Morality Flashcards
What is law?
Austin/ command theorys
John Austin
Law is a command from a sovereign who everyone has to obey, and it is reinforced by a sanction
Law is the expressed wish of the sovereign and is distinguishable from other commands such as those from god or an employer
what is law?
a set of rules and regulations used to govern society and guide our conduct.
Sir John Salmond describes law as a body of principles recognised and applied by the
state in the administration of justice. Compliance with legal rules is compulsory. imposed and governs all members of society ; breaches of legal rules
will result in state sanctions and procedures; law can be implemented immediately;
statutes are given a commencement date. Precedents can be created in court rulings
and are binding for future cases in lower courts.
What are morals?
Moral values of communities lay down a framework for how people should behave
Morality can differ from culture to culture and from individual to individual, although there is some behaviour that is universally unacceptable
Morality is more to do with beliefs so can be affected by religion (Christianity-Bible and Islam Qur’an both of the books provide a moral code for their followers)
Whereas laws are enforceable, morality may carry social condemnation but it is the choice of individuals whether they want to follow it or not
The diversity of moral views?
Durkheim- it almost impossible to find a single set of moral values that would be acceptable to all members of a modern society
The views of different societies and even within a society can vary significantly on difficult ethical issues such as euthanasia, pornography, drugs etc
However there do appear to be certain core morals that are generally accepted all of society, and these are usually associated with life and death issues
However even then there is also disagreement
While most people see any form of killing as wrong there are vastly opposing views on whether abortion is the taking of a human life or merely a woman exercising her rights of her own body
Morals can clearly change and develop, e.g. Views on homosexuality have altered since the trial of Oscar Wilde
The differences between law and morality
LAW Origins
Origins- it is generally possible to trace legal rules back to their source
For centuries the most creative source of legal rules has been the common law e.g. Tort and contract which have been developed incrementally by judges
Other sources (Parliament), the law during 20th century, parliament became increasingly active as a source of law e.g. In Herrington Parliament passed occupiers liability act to establish new rules concerning the liability of occupiers for trespassers
In recent times the EU has become a source of law making in the EU through treaties, directives, regulations and decisions e.g a 1993 directive established a 48 hour maximum working week and laid down requirements for rest and breaks.
Difference between law and morality
Moral rules
Origin
Moral rules are harder to trade back to origin
Many moralities are based upon religious teachings e.g holy texts which can be traced back to source e.g. Ten Commandments 1513 bc
They develop morale outlooks based on these texts-e.g. Pre marital sex
For others morality is based upon upbringing upon peer views or upon leanings of the conscience
Difference between law and morality
Law
Date of commencement
Legal rules generally have a start date
Acts of parliament will come Into force at a specified time either at midnight after royal assent or at a later date
E.g. The human rights act 1998 1st October 2000
Similarly EU law becomes operative at a given date
Rules set by judicial precedent operate from the date of the final decision
Difference between morality and law
Date of commencement
Morality
Built up over time in relation to a wider change in social attitudes
E.g. Premarital sex
They Have no specific date
Difference between law and morality
Their enforcement
Law
Legal rules can be enforced
Sanctions are available when an individual breaks the law
In tort law and contract law damages are awarded
Difference between law and morality
Morality
Their enforcement
Sanctions may also be available for Those who breach moral codes
E.g. A religious group may excommunicate a member for breaking religious rules
More often moral rules are enforced through disapproval or social ostracism
E.g. Throwing out an older brother for doing drugs so the younger brother doesn’t learn
Moral rules are less enforceable than legal rules
Difference between law and morality
Their ease of change
Law
The rules legal are relatively easy to change as Parliament has authority to pass a law whenever they want
This may be due to an emergency situation, a distasteful court judgement or a proposal form from a reform body
In practice however it is often slow to respond to change, courts also have the power to change legal rules (R V G)
Difference between law and morality
Their ease of change
Moral
Moral rules take longer to change over decades/centuries
E.g. Overtime attitudes to Smoking have become more negative, which has been encouraged by health schemes and adverts
Differences between law and morals
Law
To discover the precise content
E.g. S9 of the Theft Act 1968 will show the AR and MR for burglary
Decisions of judges will be reported in law reports and newspapers
However uncertainty may arise when an act is amended e.g. Sexual offences act 2003 where intent to rape will no longer provide the MR for burglary
Uncertainty may also arise where there are conflicting precedents or where a precedent has been distinguished e.g. Brown and Wilson
Difference between law and morality
Morality
Their certainty of content
The content rules may also be clear ; e.g. Rules on etiquette are in books
Knowledge of the content of moral rules Can often be acquired informally through exposure to them in the setting where they are applied , whether that is the family home,playground, or football pitch
Difference between law and morality
Law
Application of the rules
Legal rules apply to everyone and they must be obeyed
E.g. Assault
Difference between law and moral
Law
Application of the rules
Law
Application of the rules
Moral rules range in application from enjoying almost universal adoptions to having one marginal acceptance
Relationship between law and morality
Legal positivism
Hart and Devlin
Law and morality should be kept separate
All law should be obeyed even if it is immoral
Natural law
Law should be based on morality
Law should come from a higher source(god)
An immoral law doesn’t have to be obeyed under the law unlike legal positivism
The hart and Devlin debate
The debate Came about from by the 1957 Wolfendon report on homosexuality and prostitution report
The conclusion: it is not the laws job to interviene in the private life of citizens or to seek to enforce any particular pattern of behaviour
It is not the laws business to reflect on what is moral and what is immoral
Recommended the decriminalisation of consensual homosexuality for men over the age of 21
Hart proposed a more limited role for the law in the enforcement of morality
He argued that society should not interfere with private moral or immoral conduct
However hart then limited the application of this general principle by sanctioning the enforcement
He accepted that enforcement is permitted when one of societies dominant moralities is being eroded by a true threat to the cohesion of society
Such a threat though has to be more than merely a challenge to societies code of conduct; there must be evidence that it creates a genuine public nuisance
Harts discussion of the offence of bigamy demonstrates this approach , in a country where deep religious significance is attached to monogamous marriage and to the wedding service the law against bigamy should be accepted as an attempt to protect religious feelings from offence by a public act desecrating. The bigamist is published not for the act of bigamy itself but for the offence he causes to the feelings of others.
Devlin accused Hart of being inconsistent, he challenged hart saying “bigamy violates neither good manners nor decency, when committed without deception it harms no one”
Hart also accepted the legal enforcement of morality in other areas such as the taking of drugs and consensual euthanasia where he believed people need to be protected against themselves.
On the issue of homosexuality hart attacked Devlin for believing that it threatened society with this integration he argued that Devlin’s position was tant amount to declaring that any change in morality threatened the disintegration of society.
He pointed out that Devlin’s approach would cause societies values to stagnate
Hart and Devlin debate
Devlin
Lord Devlin- the enforcement of morals
“Without shared ideas and politics,morals and ethics , no society can exist. Society
therefore is constituted in part by its morality”
He argued that the fabric of society dependant upon a shared or common morality. Where the bonds of that morality are loosened by private immoral conduct the integrity of society will be lost and society will be liable to disintegrate.
He argues that society and law should interfere with the private life of citizens however there are limits to this
“There must be toleration of the maximum individual freedom that is consistent with the integrity of society “
He accepted that personal preferences or likes and dislikes should not form the bases for decisions about what immoral conduct should be untoward.
He therefore developed and objective test to help decide where the boundaries tonne drawn
Only where immoral conduct is regarded by this ordinary man with intolerance with “ intolerance, indignation, or disgust, should it be prohibited by law
Lord Devlin morality is based upon convention, this means that it is based upon what society at large generally regards as being acceptable and desirable.
It is therefore a relative rather than absolute morality as it is not based upon any higher authority regarding good and bad or right and wrongs
Conventional morality serves to maintain the status quo in society in some circumstances this would allow for the continuation of practices that might be regarded as morally repugnant by other societies e.g. Slavery, polygamy and apartheid.
law and morals close relationship
relationship was described by Sir John
Salmond as two intersecting circles. The area in the intersection representing the
common ground between law and morality and the area outside the intersection
representing areas separate to each. The common ground is known as primary law and
includes for example murder and theft. Primary law is shows us that law and morality are one and the same thing, and shows how close their
relationship can be. These longstanding legal rules have moral connections that trace
back to the ten commandments in the Bible.
problems of law following morality
the case of Gillick v West
Norfolk, concerning the prescription of
contraception to girl sunder the age of 16. If the courts were to rule that parental
consent was required then there’s a risk of increasing numbers of teenage pregnancies.
On the other hand if the courts ruled that parental consent was not necessary then
there is a possibility of encouraging underage sex. The law should and ought to uphold
for example the moral view that underage sex should not be encouraged, but with this
risks the increasing numbers of teenage pregnancies.
should laws uphold moral values?
R v Brown
the Lords sided with Devlin, holding that the sadomasochistic acts were morally unacceptable according to society and that therefore the law should
intervene to punish those acts as illegal. Whether the law ought to uphold moral values, is a continuing debate, but it is worrying that the Lords sided with Devlin, and that the rights of individuals were infringed upon in order to enforce morality.
Hart-Devlin debate
The Wolfenden Committee investigated legalising homosexuality and prostitution and
this raised the question of how far law should go in upholding morality. Hart and Mill
believed that the law should not be used to enforce morality, and that the individuals
should not be made to conform to the will of the majority. Hart believed that it was
undesirable, unnecessary and morally unacceptable for the law to impose morality
because it infringes on the rights of individuals. Devlin however disagreed believing that
society shared a common morality and that the law should intervene to punish acts
that offend this shared morality. He even stated that a failure to intervene could result
in the disintegration of society
