Law And Morality Flashcards
What are laws
laws are a system of rules that are created and enforced through social or governmental institutions to regulate behaviour.
What are morals
Morals are a subjective code of values and beliefs that are based on what the individual feels is right or wrong.
What is a pluralist society
A pluralist society is one where the people in it have differing beliefs and tolerate eachother’s beliefs, even though they may not match their own.
Legal Positivism – Jeremy Bentham
He believed that the question of whether a law is valid is completely separate from the question of whether a law is good law (it may well exists even if we dislike it).
Legal Positivism – John Austin
He adopted the command theory of law. This means that laws are commands issued by the commander (the sovereign) and that such commands are enforced by sanctions. The sovereign is the one who is obeyed by the majority.
Natural law theory
Natural law theory rejects legal positivism and states that man-made laws can only be valid if they are compatible with a higher, moral authority. It outlines that the law should be used to enforce moral values. This theory rejects legal positivism and if laws do not follow society’s morals they then lack validity.
Natural Law Theory – Thomas Aquinas
Believed that god created all living things so living things tend to gravitate towards god given goals. Therefore, they are naturally inclined towards god given morals.
Natural Law Theory – Lon Fuller
He argued that law serves the purpose of achieving social order by subjecting people’s conduct to the guidance of rules which orient their behaviour. He established eight principles including, the law must be clear, published, not contradictory, not retrospective, constant and applied as stated.
How can the relationship between law and morality be demonstrated in -
Duty of care and the neighbour principle?
the neighbour principle is a legal concept that means you must take care to avoid injury to your neighbour (the people around you). This could be seen as a re-working of the moral standpoint that one should be a good Samaritan.
How can the relationship between law and morality be demonstrated in -OLA 1984 and duty of care to trespassers?
The development of duty of care for child trespassers reflects society’s changing moral views/attitudes towards children and that we should ensure anyone who comes onto our land is safe.
How can the relationship between law and morality be demonstrated in The rule in Rylands v Fletcher?
the strict liability nature of Rylands v Fletcher (no fault is necessary) reflects morality =- the person whose substance escapes should be to blame.
