Law And Morality Flashcards
1
Q
Legal positivism theory
A
- any laws made by a recognised legislative power (such as Parliament) are valid and do not have to satisfy any higher authority (like god for instance)
- Jeremy Bentham and john Austin - only interested in the simplistic theory of law
- HLA hart - a workable legal system is made up of two categories of rules, primary and secondary
- Joseph raz - we can identify the content of law without regard to morality
- hans Kelsen - mortality has no part in law
2
Q
Natural law theory
A
- opposite view - laws must have a higher moral authority
- st thomas aquinas - Christian theologian. Combined Aristotle’s theories that man mist base his laws on his moral principles with Catholic Church doctrine
- lon fuller - the morality of law. Rejected the religious aspect, but broadly agreed that laws must have more principles in order to achieve social order and that these rules will guide people’s conduct
3
Q
What is law and what is morality
A
- laws are rules, some are legally enforceable, such as English law, a body of rules supported by sanctions administered by the state
- laws of physics or the universe - not in laws in the legal sense, but enforced by sanction in sports
- morality is defined as a system of values and conduct held by either a specific person or a society
- originally defined by religious codes
- moral values change over time and according to. The sociologists durkhiem, owing to the increasing specialisation of labour, growing ethnic diversity and the fading influence of religion, it is nor harder to find a common mortality in Britain
- therefore, individual moral codes may now be more obviously different from those of society as a whole
4
Q
moral times
A
- legal rules in England originate in common and statute law, inventions and eu law
- moral rules originated in Christian teachings in the bible but are now more like to originate from a combination of upbringing, education, peer views or one’s own conscience
- legal rules will generally have a start date, either an act of parliament or precedent in a court case. R v r would have had retrospective effect because that decision meant women who had been raped by their husbands before that decision could now pursue them
- moral rules cannot be pinpointed with a specific start date, but rather evolve over time
- legal rules are enforced by sanction in the courts
- moral rules are harder to enforce, although somebody using rude language for example might be barred from somewhere like a sports or social club
- the enforcement of moral rules usually comes in the way of public disapproval
5
Q
Legal rules
A
- whereas legal rules are relatively easy to change, it is hard to impose a change on moral rules
- moral rules will usually change over time and the law will follow these changes e.g, same sex marriage
- sometimes it works the other way round e.g, decriminalisation of homosexuality in 1967
- the content of legal rules is usually quite certain in the words of a statute or judgement, whereas the content of moral rules can sometimes only be discovered through the exposure, such as in the home
- legal rules apply to everybody, whereas some moral rules are accepted almost universally and others to some groups of people
6
Q
What is pluralist society
A
- the uk is a pluralist society. It is one in which minority groups maintain their independent cultural traditions and all members are expected to tolerate each others beliefs even if they dont agree with them
- in a multicultural and pluralist society, there will be some moral values where all share a collective view and others that relate to certain groups
- an individuals views are protected under the European convention on human rights
- there are some moral values that can be punishable by the state however
7
Q
Pluralism in the European courts of human rights
A
- owing to the fact that in some countries, religious fundamentalists have managed to impose their moral values on the law, in pluralist Europe there is a resistance to this
- in open door counselling and Dublin woman well centre v Ireland, the European court of human rights held that the Irish Supreme Courts injunction restraining counselling agencies from providing pregnant women with information on abortion services violated
8
Q
Evan’s v United Kingdom - pluralism
A
- in this case, a women who wanted to keep her embryos frozen and not destroyed after the breakup of her marriage, in the end lost her appeal. Her argument being that she had a right to privacy and a family life
9
Q
Pluralism in other areas of law
A
- moral view in society are evolving other time and the law usually, eventually follows suit: child protection, euthanasia, assisted dying, death penalty , same sex marriage, LGBT issues
- e.g, LGBT issues:
1967 - decriminalisation of homosexual activity in certain circumstances
10
Q
The relationship between law and morality and its importance
A
- legal rules are moral rules often overlap. When they do, legal rules are strengthened as their enforcement can be more readily justified
- however some legal rules don’t seem to have any moral justification.
- the so called ‘permissive society’ that arose following changing moral standards led to significant changes in the law such as the relaxation of censorship of publications that were formerly considered ‘obscene’
11
Q
Should the state enforce moral values
A
- the law should act as the guardian of public morals and intervene to ensure the continuation of a dominant morality within the state
- or, that individuals should be left free to decide their own morality
12
Q
John Stuart mills approach
A
- writer of ‘on liberty’
- 19th century liberal philosopher
- ‘harm principle’ theory - that individuals should be free to harm themselves, if thats what they want to do, but that society should only stop them if they wish to harm others
- doesnt apply to children as they are more vulnerable
- opposed by the judge, sir James Stephen - no distinction between acts that harm others and acts that harm yourself. Some acts are so grossly wicked
- mills, individuals should be free to do what they like. If harm is done however, it should nit our weight the harm denying individual liberty
13
Q
The hart devlin debate - professor hart
A
- the law has a role in preserving public order and decency but should not intervene in the private life of citizens
- moral standards should only be enforced according to hart, when they are creating a genuine public a nuisance
14
Q
The hart devlin debate - lord Patrick devlin
A
- law lord in the 1950s/60s
- book, ‘enforcement of morals’
- whilst personal preferences, likes and dislikes shouldn’t form the basis for decisions about moral conduct there should be an objective test to see where boundaries should be drawn
- this is the immoral conduct that should be prohibited by law
15
Q
The hart devlin debate - lord Patrick devlin
A
- law lord in the 1950s/60s
- book, ‘enforcement of morals’
- whilst personal preferences, likes and dislikes shouldn’t form the basis for decisions about moral conduct there should be an objective test to see where boundaries should be drawn
- this is the immoral conduct that should be prohibited by law
