law and morality Flashcards
what is a rule
something that determines the way in which we behave
what is a moral rule
something we voluntarily submit ourselves too
what is a legal rule
something that is enforceable in some way
what are the two main theories relating to the nature of law
- legal positivism
- natural law
how does sir John salmond describe law
“a body of principles recognised and applied by the states in the administration of justice’
how does John Austin describe law
“a command issued from a sovereign power to an inferior and enforced by coercion”
characteristics of legal rules
- compliance is necessary
- apply to all members of society
- breach results in state sanctions and procedures (eg MLS for murder)
- they are made and take effect at a precise time (human rights act 1988 wasn’t in effect till 2000)
- can only be changed by parliament or judges
How does the Oxford dictionary define morality
“a particular system of values and principles of conduct, especially one held by a specified person or society”
how does Phil Harris define morality
“a set of beliefs, values, principles and standards of behaviour”
characteristic of moral rules
- often stem from religion
- taught by elders of society
- develop gradually
- enforced informally via social pressure (homosexuality)
- morality changes with society
name some differences between legal and moral rules
- legal rules change instantly v moral rules evolve
- legal rules are enforced by the state v moral rules are enforced socially
- legal rules can be committed without mens rea v moral rules can only be committed voluntarily with full mens rea
what are the three factors that Emilie Durkheim identified that contribute towards the breakdown of common morality
- increasing specialisation of labour
- growing ethnic diversity within society
- fading influence of religious beliefs
what is law according to natural lawyers
- they would argue that just because a rule has been created in a certain way, doesn’t mean it is a law
- they instead argue that in order to be a law, a rule must reflect ‘natural law’
what does st Thomas aquinas say
(natural lawyer)
“if human law was at balance with the divine law, it was not legal but rather a corruption of the law”
what does professor Lon fuller argue
(natural lawyer)
that law must have an ‘inner morality’, meaning it must comply with 8 principles, such as being understandable and prospective
what do natural lawyers believe about law and morals
- they see laws and morals as closely interlinked
- morals could be said to be the foundation of legal systems
what does Jeremy Benthem argue (positivist)
- described natural law as nonsense on stilts
- Bentham argued that a law is a law if it has been created in a certain way
- “the existence of law is one thing, its merit or demerit is another. A law which exists is a law, though we happen to dislike it”
what is the command theory that was developed by John Austin
- laws are commands issued by the sovereign
- such commands are enforced by sanctions
- a sovereign is one who is obeyed by the majority
how does salmond describe the relationship between law and morals
as two intersecting circles: they coincide and diverge
what does coincide and diverge means
- coincide = laws with moral connections
- diverge = no moral connections
give examples of laws based on moral principles (converge)
- law on murder imposes MLS
- duty of care established in Donoghue v Stevenson introduced the neighbour rule
- OLA - warnings need to be provided by occupier
give examples of new laws influenced by morals (converge)
- law in relation to homosexuality (sexual offences act 1967)
- disability discrimination act 1955 and all discrimination laws - equality act 2010
give examples of laws that influenced society (converge)
- marriage act 2013 legalised same sex marriage
- breach - reasonable man
give examples of when parliament created laws which only reflect the moral values of certain members of society (converge)
- abortion act 1967 legalised abortions
- marriage same sex couples act 2013
give examples of laws that can be said to be immoral (diverge)
- R v R made martial rape legal
- Breach - inexperience (nettleship) shows that the law is immoral to those with inexperience
why was the wolfenden committee set up and what did it investigate
- was set up to consider the laws and practice relating to homosexual acts and prostitution and the treatment by courts of cases involving these
- investigated the extent to which the criminal law should become involved in private lives of individuals
what were the three recommendations of the wolfenden committee
- soliciting in the streets should be made an offence (The street offences act 1959)
- prostitution should be private and therefore decriminalised
- homosexual acts between adults in private should be decriminalised (sexual offences act 1967)
what debate did the wolfenden committee produce
Hart - Devlin debate
- the debate was about the extent to which the law should intervene to uphold moral values
what did Hart believe
- that a minority of people shouldn’t have to conform to the moral opinions of the majority whilst in private
- we don’t all have to agree with each other about morals
whose work did Hart draw upon and what did they argue
Mill
who argued that society should not impose morality on individuals as individuals should be free to choose how they behave, provided that no harm is caused to others
what did Delvin believe
- he believed that without shared ideas on politics, morals and ethics, society can’t exist
- argued that the fabric of society is dependent on shared morality
whose work did Delvin draw upon and what did they argue
Sir James Stephen
who argued that the law has a duty to proscribe behaviour condemned by society at large
