Law And Morality Flashcards
What are the two main theories relating to the nature of law
- Legal positivism
- Natural law
Legal positivism
LEGAL POSITIVISM - the theory of law that is based on the idea that laws are valid where they are made by the recognised legislative power in the state and do not have to satisfy any higher authority
- believe that laws are valid where they are made by the recognised legislative power in the state -they do not have to satisfy any higher authority
- each legal positivist has his own individual explanation of the theory.
Legal positivism - Jeremy Bentham and john Austin
- the 19th century philosophers are often Referred to as classical legal positivism. Jeremy Bentham and john Austin are best known for them.
- criticism of Austin and his rather simplistic view have been made by the modern legal positivists, in particular professor H.L.A hart.
- other modern legal positivist include hans Kelsen and Joseph raz.
- kelsen argues that morality is no part of law. Law is autonomous - we can identify its content without recourse to morality. His model of law is more sophisticated than that of Austin. He argues that there are two categories of rules, primary and secondary which combine to form the basis of a workable legal system
Natural law
NATURAL LAW - a moral theory of jurisprudence which maintains that law should be based on mortality and ethics
- natural lawyers reject legal positivism. They believe that the validity of man made laws depends upon the laws being compatible with a higher, moral authority. Where laws do not satisfy the requirements of this higher moral authority, the laws lack validity.
- there are different views on natural law, reflected in the work of Thomas Aquinas and lon fuller
- Thomas aquinas combined the philosophy of Aristotle with Christian theology, including the bible and the Ten Commandments and catholic tradition. He saw in Aristotle’s philosophy a rational foundation for Christian doctrine. These principles help people work out our moral principles that should be reflected in man made laws.
- fuller wrote the morality of law in 1964. He rejected legal positivism and also traditional religious forms of natural law theory. He argued that law serves a purpose. That purpose is ‘to achieve social order through subjecting people’s conduct to the guidance of general rules by which they may themselves orient their behaviour’
What is law?
RULE - this has been defined by twining and miners in how to do things with rules (2014) as ‘a general norm mandating or guiding conduct’
- rules exist in many contexts. A rule is something that determines the way in which we behave, whether because we submit ourselves to to it voluntarily, as would be the case with moral rules, or because it is enforceable in some general way, as would be the case with laws
- some rules are not bases on law or morality. But often referred to as laws, these might be the laws of football or the laws of chess. They are generally observed in the context in which they operate. If these laws are broken, there are sanctions in the context of the sport. Many would view any form of cheating in a sport or game as wring and possibly as inmmoral.
- some laws are laws relating to the operation of the universe such as the three laws of thermodynamics.
- these laws are immutable - they are unchanging and cannot be broken. The rules we are concerned with is English law. It is a starting point to define laws as: law is a body of rules supported by sanctions administered by the state.
What are the two main theories relating to the nature of law?
- Legal positivism
- Natural law
What is morality?
- harts criticism of fuller raises the questions of what is morality. Morality is defined in the Oxford English Dictionary as a ‘particular system of values and principles of conduct, especially one held by a specified person or society’
- morality can be a personal morality or a collective morality of society as a whole.
- morality is ‘normative’ or prescriptive, that is, it specifies what ought to be done and delineates acceptable and unacceptable behaviour. In our society and in many others, morality has been influenced to a large extent by religious beliefs.
- the bible provides a moral code for Christian communities, both in the very basic and strict rules of the Ten Commandments and in the more advances socially aware teachings of Christ.
- morality is the moral code that touches virtually every area of out lives.
- although morality is concerned with issues of ‘right’ and ‘wrong’, it is not all black and white.
- moral attitudes change over time. This can be seen in attitudes to issues such as abortion, homosexuality, drugs and drink driving.
- morality was easy to see as a common morality when societies were insular, structured and not exposed to different beliefs and values.
- the costumes of that society formed the basis of a code of conduct that reflected that society’s, and members of the society accepted these customs in large measure. It was therefore part of morality of that ages
- however, we now live in a multicultural society where there are a wide range of factors as potentially contributing to the breakdown of common morality
Factors contributing to the breakdown of a common morality?
- the increasing specialisation of labour
- the growing the ethnic diversity within society
- the fading influence of religious belief
All of these factors are increasingly apparent in pluralists societies today. Under durkhiems analysis we should not be prised to discover a parallel growth in the diversity of moral outlook and in norms of behaviour in modern Britain. There is, therefore a more obvious difference between an individuals moral code and that of society as a whole
Characteristics of legal and moral rules
- their orgins
- their date of commencement
- their enforcement
- their ease of change
- their certainty of content
- the way the rules are applied
- these characteristics help to identify the rules and distinguish legal and moral rules
Their origins
- possible to trace legal rules back to a source. Originally this was a common law. The law of tort and contract have been developed incrementally by judges.
- today, statutes have become an increasingly large source of law, together with delegated legislation.
- European Union law has become a major source of law making in the uk through treaties, directives, regulations and decisions
- conventions that the uk subscribes to such as the European convention on human rights also play their part in the origin of law in the uk today
- moral rules are more difficult yo trace back to a precise origin.
- for those who do not follow religious teachings, morality is based upon upbringing, education, peer views, or the leanings if their own consciences.
- for most people, their morality is based on a combination of all these influences
Their date of commencement
- legal rules generally have a start date. Acts of parliament come into force at a specific time. Precedents operate from the date of the decision, although it can be argued they have retrospective effect as with the decision in r v r (1991)
- moral rules are less straightforward. E.f, western attitudes towards pre marital sex have undergone significant change in the last 100 years.
- it is not possible to attach a date to this Change, as it is part of a wider change in social attitudes towards matters of sexual morality. Similarly, it is not possible yo fix a date when a persons particular morality came into being - it evolves over time
Their enforcement
- legal rules can be enforces by the courts following a designated procedure and with appropriate sanctions such as criminal penalties or civil damages
- sanctions may also be available for those who breach moral codes.
- someone who uses offensive language may be excluded from a sports or social club. Moral rules are usually enforced through public disapproval through the media or privately - social ostracism rather than a formal sanction.
-moral rules are less enforceable than legal rules, bit it is often easier to show views about them
Their ease of change
- in theory, legal rules are relatively easy to change. Parliament has authority to pass a law whenever it wants.
- in practise, however, parliament is often slow top respond to change
- as we have seen, courts also have the power to change legal rules
- moral rules tend to change gradually, perhaps over decades or centuries. It is often only in hindsight that we become aware of such change
- sometimes the law leads morality, and sometimes the law follows the lead or morality
Their certainty of content
- it os normally possible to discover the precise content of legal rules through published statutes, delegated legislation and law reports
- the content of moral rules may also be clear. However, knowledges of the content to moral rules can often only be acquired informally through exposure to them in setting where they are applied, such as the home
Application of the rules
- legal rules generally apply to everyone in a situation covered by the law. The only difference is the ability of very individual to access the law
- moral rules, on the other hand, range in application from enjoying almost universal adoption to having only marginal acceptance.
- different views are taken by different individuals and different sectors of society this is particularly apparent in a pluralist society
