law and morality Flashcards
What is law?
John Salmond defined it as “the body of principles recognised and applied by the state in the administration of justice”
What is morality?
Phil Harris defined morals ‘a set of beliefs, values, principles and standards of behaviour’
What is a pluralistic society?
One where there is tolerance of different view, beliefs and cultural traditions –> they believe that it is a positive thing that these different beliefs and cultures exist
How do law and morality differ?
Professor Hart suggests that we have to accept legal rules unlike morals - morals are individual to a person
How do laws and morality converge?
Fundamental legal rules have routes in moral code e.g. murder and theft being in ten commandments
Changes in morals can influence changes in the law e.g. R v R (marital rape)
If laws are seen as reflecting morals they are more likely to be respected and followed
What is legal positivism?
Legal positivism follows the idea the law is the law no matter whether it is moral or not
What does John Austins command theory state?
Law is a command from a sovereign authority and it is reinforced by the availability of a sanction –> law and orders backed by threats
What did Professor Hart say?
Law and morality are separate - Law should not be used to enforce morality. Obedience remains a matter of personal decision or conscience
What is Natural law theory?
Natural law theory states law is only valid if it is moral and encourages us to be virtuous
What did Thomas Aquinas say?
‘divine law’ follows rationality and nature to tell us what is moral e.g. look at the world around us.
Also revelations, things that are revealed to us e.g. ten commandments contained within the Bible
Law is moral/good if it fulfils a function and allows humans to flourish
What did Lord Devlin say about natural law?
Law and morals are inextricably linked and that immoral acts even when committed in private should be punished under the law. Therefore, immoral laws need not be obeyed.
What are examples of laws not reciprocating societys morals?
Euthanasia and assisted dying - R v DPP, and Airedale NHS trust v Bland - links with article 2 and 3 ECHR
Detention of terror suspects without trial - article 5 ECHR, A and others v secretary state to the home department
Strict liability offences - many of these offences do not breach any moral code - Smedleys Ltd v Breed - caterpillar
Omissions - there is no duty to act unless in specific cases e.g. children - R v Gibbons and Proctor
What did John Stuart Mill say about moral values?
‘harm principle’ where law should only intervene where an individuals positive actions (not omissions) are likely to cause harm to others
This is regarded as a liberal approach to law and morality, so the state should not make any laws against an individual unless it will cause harm to another
What was the Hart Devlin debate?
Hart favoured the Wolfenden comittee report, Devlin opposed it
The report said it was “not the laws business” to try enforce particular beliefs, morals or behavouirs
Lord Devlin said that it is necessary to have shared morals and therefore society needs to protect itself against immoral acts.
