LAW AND MORALITY

Question 1

What is a rule? (1)

Answer 1

Defined by Twining and Miers as ‘a general norm mandating or guiding conduct’.

Question 2

What are the two main theories relating to the nature of law? (2)

Answer 2

-legal positivism
-natural law

Question 3

What is legal positivism? (1)

Answer 3

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.

Question 4

Who are the main philosophers for the legal positivism theory? (5)

Answer 4

-Jeremy Bentham
-John Austin
-Hart
-Joseph Raz
-Hans Kelsen

Question 5

What was Jeremy Bentham’s idea of positivism? (2)

Answer 5

‘The existence of law is one thing, its merit and demerit is another is another. A law which exists is a law, though we may dislike it’ - as an individual or a group of individuals we might find the law offensive but this does not affect its validity, morality is irrelevant to law.

Question 6

What were the principles that John Austin outlined in his theory? (3)

Answer 6

• laws are commands issued by the uncommanded commander - the sovereign
• Such commands are enforced by sanctions
• A sovereign is one who is obeyed by the majority

Question 7

Who did Austin say that the ‘sovereign’ could be? (1)

Answer 7

Recognised a sovereign as one whom society obeys habitually, may be a single person (king/ queen or dictator) or a collective (parliament). Authority is given from parliament to judges, sanctions in criminal law are straight forward.

Question 8

Which legal positivist criticised Austin? (1)

Answer 8

H.L.A Hart.

Question 9

What does Raz argue about positivism? (2)

Answer 9

Argues that the identity and existence of a legal system may be tested by reference to three elements; efficacy, instructional character and sources. He also argues that law is autonomous (we can identify its content without resource to morality.

Question 10

What does Hart argue about positivism?

Answer 10

Insists on the separation of law from morality, argues that there are two categories of rules; primary and secondary, these combine to form the basis of a workable legal system.

Question 11

What are primary rules according to Hart? (1)

Answer 11

Primary rules either impose legal obligations or grant powers. Obligations include behaviour that is subject to the criminal law; such as not to kill or steal and powers enable an individual to for example make a will.

Question 12

What are secondary rules according to Hart? (4)

Answer 12

Secondary rules are concerned with the operation of primary legal rules, he identifies three specific secondary rules:
1) the rule of recognition; this sets criteria of identifying primary rules
2) rules of change; these identify how legal rules are formed, amended or repealed
3) rules of adjudication; these enable the courts to settle disputes and interpret the law

Question 13

What is natural law? (1)

Answer 13

A moral theory of jurisprudence, which maintains that law should be based on morality and ethics.

Question 14

Who are the philosophers for natural law? (2)

Answer 14

-Thomas Aquinas
-Lon Fuller

Question 15

What did Aristotle argue? (1)

Answer 15

Evil originates in naturally or morally failing to fulfil part or all of human nature - this is the basis of natural law.

Question 16

What laws did Thomas Aquinas set out? (4)

Answer 16

-eternal law
-natural law
-positive divine law is the commands of god
-positive human law must be in accordance with natural law

Question 17

What did Aquinas define eternal law as? (1)

Answer 17

All things have a natural tendency to pursue their own god given goals because all things are created by god. Human beings can have some understanding of the eternal law e.g the laws of gravity.

Question 18

What did Aquinas define natural law as? (1)

Answer 18

The moral code which human beings are naturally inclined toward. What is good is that which we are naturally inclined towards. Man made law must conform to this as it comes from a higher authority.

Question 19

What did Aquinas also state about natural ends or goals?

Answer 19

-anything that exists has a natural tendency to carry on existing
-all animals have a natural tendency to mate and bring up their young
-humans have a rational nature which inclines us to know the truth about god and gods world and to live ordered lives in society

Question 20

What did Lon Fuller argue?

Answer 20

That the law serves a purpose ‘to achieve social order though subjecting people’s conduct to the guidance of general rules by which they may be themselves orient their behaviour’ he also outlines 8 principles that needed to be completed for this to occur.

Question 21

What principles did Lon fuller outline? (8)

Answer 21

-in existence
-promulgated
-prospective
-clear and concise
-not contradictory
-not require the impossible
-constant
-applied and administered as stated

Question 22

What did Lon Fuller mean by in ‘in existence’ in his 8 principles? (1)

Answer 22

There must be rules which exist and not rules created for each specific case.

Question 23

What did Lon Fuller mean by in ‘in promulgated’ in his 8 principles? (1)

Answer 23

Law must be made public and not kept secret, statues and cases are all published in the UK.

Question 24

What did Lon Fuller mean by in ‘prospective’ in his 8 principles? (1)

Answer 24

It is illogical to govern conduct today by rules that will be enacted tomorrow, however there can be exceptions where irregularities are remedied case; R v R (1991)

Question 25

What did Lon Fuller mean by in ‘clear and concise’ in his 8 principles? (2)

Answer 25

So that they can be understood and obeyed by everyone, it’s difficult to confer whether modern day legislation is clear and concise given the volume of it. The cabinet office and the office of the parliamentary counsel published ‘when laws become too complex’ which recognised improvements but still found it necessary to launch a law initiative.

Question 26

What did Lon Fuller mean by in ‘not contradictory in nature’ in his 8 principles? (1)

Answer 26

Demanding competing actions gives no clear guidance as to what behaviour is expected by the law.

Question 27

What did Lon Fuller mean by in ‘not require the impossible ’ in his 8 principles? (1)

Answer 27

Must provide rules that humans are capable of fulfilling even if it is not always easy to draw the line between extreme difficulty and impossibility.

Question 28

What did Lon Fuller mean by in ‘constant’ in his 8 principles? (2)

Answer 28

The law must not keep changing rapidly if it is to produce stable expectations of what is required. This does not mean that it cannot change according to changing needs of society.

Question 29

What did Lon Fuller mean by in ‘applied and administered as stated’ in his 8 principles? (2)

Answer 29

What officials do must be in accordance with the law, people must not be subject to the arbitrary power and will of those in authority, meaning that while officials can have discretion in coming to a decision that discretion must be excercised for reasons within the law.

Question 30

What is morality? (1)

Answer 30

A particular system of values and principles of conduct especially ones held by a specified person or society.

Question 31

What did Mary Warnock say? (2)

Answer 31

An academic who has been concerned about moral issues said, “I do not believe that there is a neat way of marking off moral issues from all others; some people, at some time, may regard things as matters of moral right and moral wrong, which at another time or another place are thought to be matters of taste, or of no importance at all.

Question 32

What issues show changes in moral attitudes? (4)

Answer 32

-abortion -homosexuality -drugs -drink driving

Question 33

What did the sociologist Emile Durkheim say about the breakdown of society? (4)

Answer 33

-contributed factors which would help this process; 1) the increasing specialisation of labour 2) the growing ethnic diversity within society 3) the fading influence of religious belief

Question 34

What are the similarities of legal and moral rules in terms of origins? (2)

Answer 34

Legal rules originated from many places, tort and contract developed incrementally by judges. Moral rules are more difficult to trace, the bible and the Koran form the basis of many individuals of their moral outlook such as premarital sex, theft and treating of other humans.

Question 35

What are the similarities of legal and moral rules in terms of date of commencement ? (2)

Answer 35

Legal rules generally have a start date, acts of parliament come into play at a certain date but can be argued to have retrospective effect as with the decision in R v R (1991). Moral rules for example western attitudes towards premarital sex have undergone change in 100 years cannot attach a date to this as it is due to change in social attitudes.

Question 36

What are the similarities of legal and moral rules in terms of enforcement ? (2)

Answer 36

Legal rules can be enforced by the courts following a designated procedure and with appropriate sanction such as criminal penalties or civil damages. Moral rules also have sanctions such as using offensive language in public may lead to removal from sports or a social club, usually enforced through social disapproval, are less enforceable than legal rules.

Question 37

What are the similarities of legal and moral rules in terms of ease of change? (2)

Answer 37

Legal rules are relatively easy to change in theory, parliament has authority to pass a law whenever it wants in practice parliament is often slow to respond to change. Courts also have the power to change laws but only when a case comes to court. Moral rules tend to change gradually, sometimes law leads morality and vice versa.

Question 38

What are the similarities of legal and moral rules in terms of certainty of content? (2)

Answer 38

It is normally possible to discover the content of legal rules through statutes, delegated legislation and law reports. Moral rules may also be clear however can be acquired informally through exposure.

Question 39

What are the similarities of legal and moral rules in terms of application of the rules? (2)

Answer 39

Legal rules generally apply to everyone in a situation covered by the law. Moral rules range in application from universal adoption to marginal acceptance, differing views occur especially in a pleurisy society.

Question 40

Define a pleurisy society. (1)

Answer 40

A diverse society, where the people in it believe all kinds of different things and tolerate each others beliefs even when they don’t match their own.

Question 41

What occurred in the case of R v Lyon (2011)? (4)

Answer 41

Lyons was a leading medical assistant in the submarines, he was told that he would be deployed to Afghanistan, he applied for discharge from the Royal Navy on the basis that he objected to the uks role in Afghanistan, this objection was refused. Before his appeal was decided he was ordered to take a pre-deployment weapons training course because of the risk all personal faced. On refusing to submit he was convicted of insubordination. Even though humans rights article 9 covered protection. of rights he was not given defence to insubordination.

Question 42

What are the two principles of the debate between enforcing moral views? (2)

Answer 42

-the law, as the guardian of public morals, should intervene to ensure the continuation of the dominant morality. -individuals should be left free to decide their own morality