Law And Morality Flashcards
Side of argument
Law should NOT enforce morality
P1
Where do law and morality coincide
Laws can be created as moral - RVR - martial rape
Set standard and dictate way majority behave
Both can be disgreegarded by some
What is law
Rule that determines the way people behave as they are enforceable in some way
What are morals
Non compulsory and behave that way due to social pressures
What do positivist beleave
Laws are Valid regardless of morals
Naturalist belief
Laws should enforce morals
P1 where do laws and morals not coincide
Laws are enforceable with legal consequences
Morals only social disapproval
Laws are objective morals subjective
Morals depend on factors - wealth/ religion
There are morals that are not laws like adultry
What factors effect morals
Wealth
Education
Culture
Religion
Family
Politics
Class
Bentham
Greatest good for greatest number with out harming few
Mill
Harm principle
Actions are limited to stop preventing harm to others
Greatest good for greatest number example
Insanity
Protect public as in hospital
But not harm few as in hospital not prison
Austin theory
Command theory
What is command theory
Issued by gov
Threat of punishment
Generally obeyed
Kelsen
Law and morality have nothing to do with each other
Kelsen EG
Literal rule
Courts not interfering with bad bargaining
Aquinas
Law should follow 10 commandments
Issue with Aquianas
Pleurisy society so many wouldn’t agree with 10 commandments
Thou shall not kill yet can kill in self defence - crim just immigrat act 2008
However thou shall not kill followed in dursss - R V gotts V Howe not due murder or attempted
Fuller
Some laws are so immoral they must be wrong
Fuller example
Euthanasia can be seen as morally right yet still not enforced in law
DPP V PRETTY
Baroness mecher bill not pass
Dr cos
Hart V devlin sides
Hart = positivist
Devlin = naturalist
Devlin view
Naturalist
Without shared morals then no society can exist
Reasonable man should see if immoral and if disgust then illegal
Issue with devlin side
Reasonable man test - pluristic society so range of views that won’t be consistent
Judges completing reasonable man will have narrow backgrounds
Tho Jury’s can give perverse verdict
Hart
Society should not interfere with moral conduct
Protect freedom - R V Wilson can consent to harm
Laws that enforce morals should cease
Why morals cannot be enforced
Pluralist society - who’s morals to enforce
Changing with times
